Just one week after taking the oath of office, President Donald Trump issued an Executive Order banning nationals from seven Muslim-majority countries from entering the United States for 90 days and suspending refugee admission into the United States for 120 days. After the initial order was blocked by the courts, President Trump issued a slightly revised immigration ban in March 2017, which was again struck down by several courts of appeals. In June, the US Supreme Court ruled that the ban could partially go into effect pending oral arguments on the constitutionality of the ban scheduled for the fall term. This special report details how the law school’s alumni, professors and students have taken a leading role in opposing the Executive Order and fighting for the rights of immigrants.
Alumnus-Founded Firm LEADS CHALLENGE to the President’s Executive Order
The New York Times reported on January 29, 2017 that the number of lawyers from across the country that simultaneously engaged in fighting the Muslim immigration ban was unprecedented. In the days that followed, the national media described lawyers in heroic terms for the first time in years. According to news reports, one law firm in particular stood out for its contributions to fighting the order—Fragomen, Del Rey, Bernsen & Lowry, founded by Case Western Reserve University law alumnus Austin Fragomen ’68.
Austin Fragomen ’68
In the immediate aftermath of the executive order, Austin Fragomen’s firm took a leading role in combating the intended and unintended consequences of the order for members of the immigrant and business communities across the nation. They worked with clients to draft letters to their boards, prepared executives ahead of meetings with the President and sued the government on behalf of an Iraqi born CNN journalist who was a legal permanent U.S. citizen, but was illegally detained at the Atlanta airport. The firm also provided pro bono legal assistance at airports around the country along with volunteer lawyers from the International Refugee Assistance Project.
“The Executive Order was mishandled on multiple levels, leaving the travel ban particularly vulnerable to legal challenge and ultimately to a decision of the 4th Circuit which would curtail the ability of the President to ban aliens from the United States even for facially legitimate reasons,” said Fragomen. “We were pleased to assist our corporate and private clients whose rights were violated by this poorly devised Executive Order.”
Fragomen graduated from Case Western Reserve University School of Law in 1968. As a student, he founded the Case Western Reserve Journal of International Law
, which celebrates its 50th year of publication this year. He has served as staff counsel to the U.S. House of Representatives Subcommittee on Immigration, Citizenship and International Law and is founding co-author of a renowned series of immigration handbooks published by Thompson Reuters/West.
Other CWRU Law alumni who hold senior positions in Fragomen Del Ray include Tim Nelson (’05), who recently was promoted to partner; Elizabeth Reichard (‘04), who serves on the firm’s U.S. Legal Strategy Team; and Diego Archer (’04), who splits his time between Fragomen’s Dallas and Houston offices, where he provides advice to clients’ offshore workers, vessel and rig operators and commissions, engineers and technical personnel. Rising 3L CWRU Law student Christina Dombrowski interned at Fragomen’s London office in summer of 2017.
Experiential Capstones Land 2017 Grads Prestigious Immigration Court Clerkships
While immigration law has recently come to the forefront of the nation’s consciousness, Case Western Reserve University School of Law has prepared students to face these issues for many years, through a robust immigration law program that includes an introductory immigration law course (taught in 2016 by The Honorable Alison Brown, an immigration court judge in Cleveland), advanced immigration courses on asylum and business immigration, 3L capstone externship placements and an immigration law clinic, where students get to sit first chair in asylum and refugee cases.
Nicole Triola ’17 and Seth Garfinkel ’17
As recent graduates, Seth Garfinkel ’17 and Nicole Triola ’17 received a hands-on education in immigration law while learning from experienced faculty in the immigration law clinic, where they helped clients apply for asylum, withholding of removal and relief under the Convention Against Torture.
“Our clients came to the United States after facing persecution in their home countries on account of their religions, political opinions and memberships in particular social groups,” said Garfinkel. “We worked with them to determine what, if any, forms of relief were available for them. This involved studying country conditions, as well as researching various forms of administrative remedies.”
The high point of Garfinkel’s experience came when he and Triola represented a client in immigration court. Under the supervision of Adjunct Professor Michael Sharon, they argued a case before Judge Alison Brown, Cleveland’s chief immigration judge and an adjunct professor at the law school.
“My time in the clinic taught me that success in the immigration context requires more than a Bluebook and a Westlaw account,” said Garfinkel. “It requires the capacity to establish trusting and meaningful client relationships—a task that is sometimes difficult and time-consuming, but is ultimately the driving force of a successful immigration case.”
Through the Department of Justice Honors Program, Garfinkel obtained a prestigious post-graduate judicial clerkship in an immigration court. “In my clerkship, I will draw on my law school experiences and, in particular, the skills I developed as part of the immigration clinic, to offer thoughtful contributions to the immigration court system.”
Aliza Lopes-Baker ’17 also obtained a judicial clerkship at an immigration court following graduation, but her pathway differed from Garfinkel’s. After taking several immigration courses, Lopes-Baker spent a summer as an intern at the Bloomington (Minnesota) Immigration Court, one of the country’s regional immigration courts. “Over the course of my internship at the immigration court, I had the opportunity to draft opinions and develop research related to a range of immigration issues, including asylum claims, withholding of removal and claims under the Convention Against Torture.” She subsequently undertook a semester-long externship at the INTERPOL Office of General Counsel in Lyon, France, where she worked on issues related to bringing to justice perpetrators of crimes against humanity.
Like Garfinkel, Lopes-Baker was selected to be a judicial clerk at an immigration court through the DOJ Honors Program.
In recent years, several graduates have gone from judicial clerkships to permanent positions in the U.S. Immigration system. Malea Hetrick ’16 is now attorney advisor at the York Immigration Court, part of the Executive Office for Immigration Review, within the Department of Justice. Hetrick says the immigration courses she took, the Cox Center-sponsored summer internship she had at the UN Office of High Commissioner for Refugees and her experience in the immigration clinic, “set me apart from other applicants who did not have a strong background in this niche area. The more I hear from other young lawyers about their experiences, the more CWRU stands out to me.”
Alumnus wins case before Ohio Supreme Court, supported by CWRU law students’ amicus brief
Joseph Burke ’90 had an unusual goal—reopen a case that had been dismissed and sealed
so his client could face charges again.
Joseph Burke ’90 argued a case on behalf of his client, Issa Kona, before the Supreme Court of Ohio on June 10, 2015.
State of Ohio v. Issa Kona
, a decade-long case that would ultimately be settled by the Supreme Court of Ohio, marked the second time Burke successfully argued a case before the court in just two years. He described it as the most meaningful victory of his entire career, and it came with the help of Case Western Reserve law students.
The incident behind the litigation took place back in 2006, when Issa Kona, a Palestinian who came to the United States with his wife and four daughters on a green card, was arrested for attempting to steal a $59 battery charger from Home Depot. Kona was charged with robbery, which was a deportable offense, but was offered a deal— if he signed an admission of guilt, he would be allowed to enter a pretrial diversion program that would dismiss the charges and seal the case.
Two years after completing the diversion program, that decision came back to haunt Kona when he applied for U.S. citizenship. Kona was never advised by the court that signing the admission of guilt could have severe consequences under federal immigration law, including the possibility of deportation.
Kona’s case, State of Ohio v. Issa Kona
, was argued by Joseph Burke ‘90, a partner in the firm of Polito, Rodstrom & Burke LLP. Burke maintained that Kona’s admission of guilt should have triggered R.C. 2943.031, a statute requiring the court to give non-citizens warnings as to possible immigration-status consequences upon a guilty or no contest plea. The prosecution’s argument, which was upheld in an earlier decision by the Eighth District Court of Appeals, stated that the written admission of guilt was not the same as a guilty plea and should not trigger the statute.
Kona’s case, while seemingly focused on an obscure technicality, was not unique. That’s where the students in CWRU’s Immigration Law Practicum came in. With the help of their amicus brief, Burke was able to convince the Court that the central issue of the case was part of a larger, national problem.
(left to right) Federal Immigration Judge Jenna Peyton, a 1998 law graduate who previously taught as an adjunct professor, is pictured with her students Harrison Blythe, Madeline Jack and JoAnna Gavigan (all from the Class of 2015) in front of the South Texas Family Residential Center in Dilley, TX.
“Honestly, it was a significant help to swaying the court,” said Burke. “It really helped show them that this was a far-reaching issue that wasn’t isolated to just one person. The students’ filing was a great help to the case.”
Four days before Thanksgiving, a holiday started by immigrants celebrating a new start in a foreign land, the Supreme Court of Ohio sided with Kona in a ruling that could establish precedent for similar cases across the nation. Soon after, the local prosecutor announced that he would not retry the case.
“It was the best Thanksgiving present I could give them. This was about a man’s life and his family,” said Burke. “It doesn’t get any better or more meaningful than that.”
Students File Amicus Brief with U.S. Supreme Court In 9/11 Detainee Abuse Case
Four law students helped prepare and file a recent amicus curiae (“friend of the court”) brief with the United States Supreme Court in a high profile civil case against former senior U.S. officials, including the attorney general, FBI director and prison wardens, for abuses suffered by detainees held in the immediate aftermath of the 9/11 attacks.
The origins of Ziglar v. Abbasi
go back 15 years. In the wake of 9/11, the United States government used federal immigration law to arrest and detain 762 Arabs, South Asians and Muslims over an 11-month period following the attack as part of a comprehensive and targeted sweep in the investigation of potential terror suspects. Eighty-four of the detainees, who were arrested for overstaying their visas or entering the country illegally, were labeled “high interest” and confined at Metropolitan Detention Center (MDC), a federal facility in Brooklyn, New York, where they were subjected to a blanket “hold-until-cleared” policy.
The detainees who filed the lawsuit were held despite having no ties to terrorism and were subjected to abusive conditions at MDC, including long periods of solitary confinement, excessive bodily searches, sleep deprivation, denial of the ability to worship according to their faith and other verbal and physical abuses. After lower courts ruled the detainees’ allegations were plausible and that the lawsuit could continue, government officials appealed to the Supreme Court, arguing instead that they enjoyed immunity from suit and that the wardens could not be held responsible for just following orders.
To rebut government officials’ arguments, law students Seth Garfinkel, Rohmah Javed, Sam Levine and Kevin Vogel, under the supervision of Milton A. Kramer Law Clinic Center Professors Andrew S. Pollis and Avidan Y. Cover, wrote the brief supporting the detainees in partnership with Dorsey Whitney LLP, on behalf of 10 former correctional directors and administrators with extensive experience supervising prisons and jails throughout the United States.
The former correctional officials contend in the brief that established prison regulations and policies forbid the alleged abusive treatment, requiring individualized assessments before detainees can even be placed in restrictive confinement and that the wardens’ actions led to unconstitutional punishment.
“It’s our hope that by contrasting established policies and practices at other federal correctional centers with the policies and practices at the MDC in the aftermath of 9/11, the Justices will better understand that it was the former officials’ actions that produced the abuses that the detainees suffered at the MDC,” said Avidan Y. Cover, professor of law and director of the Civil Rights, Human Rights and Immigration Clinic, part of the Milton A. Kramer Law Clinic Center.
In addition to setting forth the federal prison regulations and policies that prohibit confining detainees on non-individualized grounds and on the basis of race, religion or national origin, the brief also discusses how the wardens’ extensive authority over correctional institutions makes it likely that they approved the alleged abuses. The former correctional officials also explain how the wardens were not required to follow any alleged orders from the FBI or federal prison headquarters which violated established prison regulations and that served no legitimate prison objective. Moreover, the brief concludes, it is “immunization of correctional officials who follow unlawful orders and fail to remedy punitive conditions of confinement that would undermine the proper functioning of jails and prisons.”
On June 19, the U.S. Supreme Court decided the case. While the court dismissed the case against most of the defendants, consistent with the CWRU amicus brief, it held that the lawsuit could proceed against the warden of Brooklyn’s Metropolitan Detention Center, over allegations of “deliberate indifference to abusive treatment.”