Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hi everyone, my name is Angela. I'm currently a 1L at HLS and I am so excited to be joined by Katie Taylor, the legal director of Neighbors Immigration Clinic. Katie joined Neighbors Immigration Clinic in her current role in January 2024, and prior to that she served as the Lexington office director for the Children's Law center and as an immigration attorney at Kentucky Refugee Ministries. Thank you so much for joining us, Katie.
[00:01:02] Speaker C: Yes, I'm happy to be here.
[00:01:04] Speaker B: So today we're going to be chatting about the implications of the Supreme Court's Picasa decision, which significantly curtailed the ability of federal courts issue nationwide injunctions. But before hopping into that, Katie, I would love to hear a little bit about your work, what you currently do, just so we can get equated and situated.
[00:01:22] Speaker C: Absolutely. As you said, I am the legal director at Neighbors Immigration Clinic. So this is a small legal nonprofit that is immigrant immigration law. We are based in Lexington, Kentucky, but we service basically the entire state of Kentucky, minus Louisville, which is our biggest city. The kind of intent was especially in Kentucky, there is just really not a lot of immigration attorneys, whether private or nonprofit. There's just not a lot of access to legal counsel in general. And so Louisville does have the most access to it. And so we've tried to focus on the rest of the state to try to give access to. We have a ton of immigrant community throughout the state. Lexington used to be like the fourth largest city for refugee resettlement in all the United States. Oh, and. And we have huge migrant net populations in a lot of western and eastern Kentucky that have farmlands and things like that. And so what we do is we represent individuals in humanitarian and family based immigration cases, since that is everything from just filing applications with the United States citizen and immigration services to representing individuals in immigration court to to defend them against deportation.
And then this past year we just started, which is exciting because this is the first time we'd ever had a nonprofit in Kentucky do detained defense. So we've started representing immigrants that are in detention mainly because of changes in the climate in the past year.
Last year, Kentucky only had one immigration detention center, and now we have eight. And so most of the people that have been detained out of Minnesota and Chicago, out of the raids that have happened up there actually are sent to Kentucky. And so we've been trying to do a lot of work to get those individuals out of detention so that they can get back to their families and back to their attorneys that are working with them on those underlying cases. And then also people that are picked up through Kentucky themselves, since I generally have about 250 to 300 clients that are open cases at a time, it's like high volume, like fast turnover on some things, then extremely slow turnover on things like asylum cases typically take 10 plus years. So it just depends on the day, what I'm working on.
[00:03:29] Speaker B: Wow. First of all, thank you so much for your work that is so important and like you touched on, especially in the current climate. So thank you. And I think you are the best person to talk about, like, the on the ground implications of these really high up decisions. So I'm really excited to hear your thoughts. So without further ado, what do you think are the most significant ways that Trump v. CASA changes who can realistically access relief from unlawful federal policies?
[00:03:56] Speaker C: Yeah, absolutely. I think one big thing is, I guess there's two big implications from this. One is now it has turned into, because before Trump, because we had nationwide injunctions almost over everything that had import in that had a color bowl case. And so if something was going to be challenged, it would be challenged, it would have a nationwide injunction at least ruled on. So, like, it doesn't mean the petitioner was always going to win the injunction. It might have been denied, but there was always one kind of litigated. And so you knew how courts were going to handle that since Trump, because you no longer have that option, basically. And so one thing that's been really detrimental is to communities that aren't in the big cities. And so you have, generally you have smaller nonprofits like our office that might do direct services, but generally the big nonprofits that we're doing, the, the class action litigations, the litigations that led to those wide injunctions were out of San Francisco or New York or Chicago and had dozens and dozens of attorneys that were running these class action litigations. And, or you could still do class actions, I guess, but doing the litigation that was leading to the nationwide injunctions. And so now all of a sudden that weight is on the individual immigrant to do themselves and to come up with funding to do themselves, which is extremely hard, and also to have attorney that even have the correct licenses. So I wasn't even barred in our federal courts until last fall when things shifted, just because I never had the need to be. Because we practice in immigration court, we practice in state court, and we relied on these injunctions. And so there's been a huge scramble, especially in more rural locations, to get attorneys having the right bar licenses. But then the other mess you run into is it's really weird for immigration to not be a federal rule for it'd be like, oh, your immigration rates depend on what state you're in or what part of what state you're in. And also, people are transferred within the US So often.
So like, I had a client that was detained and was transferred from Kentucky to Indiana to Louisiana to Texas in less than 24 hours. And so at that point you're like, okay, I just went through four jurisdictions. And so this concept of the world changing every time your person got moved just make things very practically difficult too.
[00:06:18] Speaker B: Yeah, I think that's fascinating. I think it's gotten a lot of attention how it varies jurisdiction to jurisdiction, but I think even within jurisdictions, thinking about geographically, the access to justice but attorneys is something that I hadn't really thought about, but makes a lot of sense and seems to be exactly the kind of community that you guys are servicing.
[00:06:36] Speaker C: Absolutely. And we have like, even with each state gets achieved, like their own bar requirements for these federal courts. So even in the past couple weeks, I've started signing contracts with attorneys in other states to help them file, because they have to have a Kentucky bar license to get admitted to one of our courts. But they're in Chicago, they're in New York. Why would they have a Kentucky bar license? So it is this wild thing of all the requirements that you have to jump through.
[00:07:00] Speaker B: Yeah, that makes a lot of sense. And I had a similar question when you were speaking about citizens of other states being detained in Kentucky. It sounds like there would be a lot of cross legal issues there too. So you've touched a little bit about this, but I'd be really curious to hear if there are any other ways that you've directly experienced the impacts of the decision. And then also it sounds through this collaboration with other states and lawyers in other states, you've been able to improvise solutions, but also whether there are any new tacks that you're taking to confront those problems.
[00:07:29] Speaker C: Yeah, absolutely. So I think the biggest example right now would probably be in a detained context, because prior to the current Trump administration, the way that, like a little background on how the law works to make it make sense. If the way that people were detained, pretty much most people were seen as eligible to get a bond hearing if they were detained. So you would be detained by immigration. But just like you can ask for bail in the criminal context, you could ask for a bond. The judge would grant it or deny it. It wasn't guaranteed. But you have this right to a bond hearing. So you could potentially get out of detention while you're waiting on an answer on your underlying immigration case, which can take years. And last year, they changed the way that they interpreted these statutes. And so now it basically took away the right to a bond hearing for everybody. Whether or not that interpretation is legal or is the correct. Because no law changed. It was just the interpretation of the law that changed is something that's been hotly litigated. And it's been really interesting how that has played out and really devastating to our clients because of the Trump vs. CASA decision, the way that interacted here. Because now you're having to file a habeas corpus petition in federal district court to get a federal district judge to order the immigration judge in immigration court to give your client a bond hearing. Yeah, and there have been different decisions across the country about all over the place, people are in different decisions or judges have different perspectives on this. But there was a case, or there is a case called Maldonado versus Bautista out of. I believe it's in Northern District, it's in California, but I believe it's the Northern District of California case.
And this was what, prior to Trump versus Casa would have been the case that was led by a lot of nonprofits that would have gotten our injunction if that's what the judge was going to give. But it's been wild because the judge in that did order saying, hey, all these people are entitled to these bond hearings. You have to give them bond hearings. All immigration court judges refused to honor that. And we're basically like, you can't do a nationwide injunction. And the judge had done it in the form of a declaration, declaratory judgment. And they were basically like, that means nothing. Which. So then the judge had to come back and be like, no, this means something. You have to follow my rules. So the judge sent out another order saying that this applied nationwide. It was actually taken as a class action. And so they were like, this is a nationwide class. This applies everywhere. The immigration courts. Through the Executive Office of Immigration Review. Their leader sent out an email, told the Judges saying no it doesn't, don't follow it. And so all of the judges were still denying it. And so now we're having to file habeas cases. There's been hundreds and hundreds of habeas cases filed since December. Well, since this case last summer. But really heavily since the fall of last year. And so the federal courts are so overwhelmed with all of the habeas cases for immigration. And it's becoming really problematic. Cuz I have cases that have been pending habeas cases that have been pending since December. And habeas cases are supposed to get priority, they're supposed to get immediate answers because it's. You're being detained potentially against the law. And it's just been wild because we've had. I've had a shift my practice where I spent a day, a week just on habeas cases now. And I never even did a habeas case until last fall. And so it's been something that immigration attorney have really had to shift practice. And now you're having to do a habeas case and then go do your bond case oftentimes. And so it's so much more work to get one person out of detention because we don't have this nationwide injunction that's being honored.
[00:11:00] Speaker B: Wow. And that sounds like it's doubly. I think the implications of nationwide injunctions seem like they'd be particularly difficult to navigate in this immigration space where it sounds like you just have the executive sort of immigration branch of the courts also interacting with that federal district branch. And it seems super duplicative. Like it's. You're just trying to just get a bond hearing where. And you can't cut the middle man out. Yeah.
[00:11:22] Speaker C: And so much of it is. It's hard because the cases aren't so similar enough that I can just style them as a class action. But there's so much copying and pasting. Then you're also getting such wild decisions that it's a very weird practical world for our clients. Because for instance, in Eastern District of Kentucky we have two judges. One of us always grants them for immigrants and one either doesn't rule or will deny them. And so it's a very weird conversation when you're going to clients because they're like, I don't understand. I just thought there was a law and it applies or it doesn't. And I like really depends on what judge you get, which is completely random when your case is assigned. It's just not cohesive at all.
[00:12:01] Speaker B: Yeah. So super unpredictable. Too, which is another, I think key talking point that has really come out as one of the consequences. Wow.
[00:12:08] Speaker C: Absolutely.
[00:12:09] Speaker B: And I know that your practice is mostly direct client service oriented, but I was wondering whether more broadly you touched on this with the cases out of California, which would have maybe in the past been trying to get at a nationwide injunction has trump because it changed how immigration lawyers select plaintiffs or forums for impact litigation. And does impact litigation still matter to the same extent that it might have in the past?
[00:12:32] Speaker C: Yeah, I definitely think it still matters. I just think maybe you need more of it, which is really hard resource wise. I think that's the struggle it cracked. And I think honestly this is part of the administration's goal here. Right. Is they understand the amount of resources it takes. But for instance, the other day even I filed a habeas case and it was me versus six government lawyers that are the they're just throwing all their money and all their resources at this so that the fight is so much harder. I definitely think forum matters. But even in that Madeleine Auto Batista case out of California now that injunction is applying to the Northern District of California now. But if you don't live in the Northern District of California, it doesn't apply. So it's really tricky because.
Yeah, you want it used to be like definitely there's always been form shopping. That's whether we want to admit it or not. It's a thing in law. It always was taken in California, Cape visitors, things like that was where these injunctions were coming. But now if it's only applying to that one area, then you're going to have to file them all over the place. And it's really hard with class actions and immigration context when you're talking about the detained cases because of how quickly these go over. Once someone is detained, they might be deported within four months or. And so you don't really have time to wait for any people to build a class or depending on what circuit you're in, if that named plaintiff gets deported, it may or may not be called moot. And so you. There's just a lot of. There's a lot of variables that run into that.
[00:14:02] Speaker B: Yeah. And I think another sort of question that I that came up both in the decision and in the discourse after has been this idea that even if without nationwide relief, the government could actually continue enforcing a policy against non parties, even if they lose in the lower courts until and big if it is appealed to the Supreme Court, if it ever gets there and if they ever actually make a decision, assuming that they can still have this power to issue nationwide injunctions. So is that a concern at all in. In the immigration space?
[00:14:29] Speaker C: Oh, absolutely. And it's just the immigrants themselves, even if the Supreme Court eventually rules it's not going to help them because they will already been deported. And so that's the the matter of it. It's just become a huge access to justice issue because now, first of all, you have to have access to an attorney. Yep. And already these immigrants, most immigration attorneys didn't have the proper bar licensures.
Now everyone's been scrambling to get them, but you're running into, you're being sent to a state generally where you do not live, where your family is, not where you have an immigration attorney that is states away, not with the proper licenses. And you're running into, you don't have time to wait on an appeal to the Supreme Court. And if you did, you'd be sitting in detention for the whole time. And the conditions in immigration detention are very clearly documented as far worse than our criminal detention, which is already not great. Like, it's just not an ideal solution. And there's so much I'm seeing so many clients sign, which I think is the administration's goal, but I'm seeing so many immigrants sign voluntary departure and just leaving the US Even though they have valid claims to get legal immigration status, but they just aren't willing to sit in a jail indefinitely.
Many of whom actually entered the US on parole. We invited them into the country. They had a lot of my clients honestly have never been out of. I have plenty of clients that have been undocumented, but then I have many clients that haven't even ever fallen out of legal status and were picked up while they were in legal status. And the government is just saying, just kidding, we don't want this status anymore. So it's become a very wild thing where we're getting. The vast majority of federal courts are saying what the government is doing is illegal and are giving them access to the bond hearings and relief from detention. But if you don't have the means to pay an attorney and pay filing fees and everything else, you're not getting out.
[00:16:19] Speaker B: Yeah, yeah. It seems just like a lose lose across the board. So I guess trying to find some positive. And I think the work that you guys are doing is like the bright light, shining example of this. But do you think that there are.
I think class actions have been raised in the prominence and hopefully the relief that they can bring. But first of all, what are your thoughts on class Actions as a potential remedy. I think they're, for obvious reasons, not a clear substitute, like you said, for resource constraints, just the doctrinal niceties that the court now requires to even get to class or. But do you have thoughts on that as an alternative?
[00:16:54] Speaker C: Yeah, I have never personally done a class action, so I'm definitely not an expert on that. We've always referred on to CLU and the bigger orgs. But there is so much like even we had an issue come up a couple weeks ago that the ACLU is now considering for a class action. But there's so much that goes, yeah. Into that class cert and there's so much of who is going to be deported before we even get to the point of being able to ask for the class cert in this. And it's this ticking time bomb. So it's not always super practical. I think, honestly, what's more happening right now to get people out is immigration attorneys are just having to file as many of these as they possibly can. And luckily there's a really good immigration attorney community across the country. And so we're like sending template. We're sending, okay, this judge said this, trying to track data, trying to track what arguments win in front of what judge and sending as many as we can. But I haven't really, at least in Kentucky, I've definitely not seen class actions help people get out of detention soon and that I couldn't get there. It's just what that takes to get to the class action.
A lot of our clients are going to be out of the country before then. And it's okay if we go to the Supreme Court in two plus years on this?
Everyone that was deported in the past two years, I highly doubt we're going to commit to the government to bring them back. And a lot of our clients also are fleeing really intense persecution. And so we have a lot of statistics on the number of people that have been deported with pending asylum cases that are killed when they return to their home countries. And so the idea that we can create a remedy in two years to bring them back doesn't work if they were killed based on the persecution they were originally fleeing. So it just becomes really messy. But I do think there's a lot of work kind of rallying from some of the national, like national immigration projects, some of these Acacia, these big national immigration agencies, just cranking out templates as much as they can and trying to share those to as many immigration attorneys on the ground so that hopefully we can file as many individual cases as possible.
[00:18:47] Speaker B: Yeah, it seems like more than in most spheres for immigration and for deportation proceedings specifically, class action is just an a square peg, round hole type of thing, especially because of that time lag aspect that I think is crucial no matter who is seeking relief. But when the relief is being sought for potentially being removed from the country, that is just a different kind of beast.
This is not the tool to solve.
[00:19:13] Speaker C: It's also really tricky because for parole especially, which plays into a lot of these detained cases, if the government's trying to revoke your parole status, you have to have a case by case, individualized assessment.
Yes, you can do class action, require that assessment, but you can't go into any of the details of the assessment because the whole point is it's individualized. And so it becomes difficult when there are different factors.
[00:19:35] Speaker B: Yeah, that makes a lot of sense. I was interested by something you mentioned, which is this idea of having a database where you can track how different judges are coming out to have more predictability. So are there other methods by which you guys are trying to simulate the kind of stability and predictability that nationwide injunctions to some extent used to give?
[00:19:55] Speaker C: Yeah, there's a great.
I don't actually know who runs it, but there's a great website called habeasdockets.org that is free and that has been tracking all these habeas.
[00:20:03] Speaker B: Oh, wow.
[00:20:04] Speaker C: Recent attorney. And you can filter it by judges and things like that. I have been considering taking some issues with them to the 6th Circuit and part of the 6th Circuit's analysis when they're going to decide whether to look at your case is like, how big of an impact does this have? And that's been really helpful for that purpose to figure out, okay, the judge has never made a negative ruling. This judge has. But honestly, a lot of it has just been like immigration attorneys on the ground. We've had interns work on it. I spent a couple hours the other day just checking a specific judge we have and counting, tallying decisions. And so a lot of it to is just the on the ground practice. Partially why to when we have. When I'm working with an attorney in Minnesota or Chicago or New York whose client is now detained here, it's part of the reason you have to have local counsel on these cases because they can think it's a great case. But once I know the judge, I can tell you what's going to happen more than likely just by the name of the judge. And so also knowing which arguments are going to win in front of which Judge. And that's typical law practice. I think anywhere you go, it just makes it trickier because with the immigration context, when you have immigrants that aren't even from Kentucky or that don't even have lawyers here, same thing anywhere else you were, you're going to get a different outcome based on the judge you're assigned to.
[00:21:16] Speaker B: Yeah, it's so interesting. And I think this is, there's some discourse right now as to whether the implications are even playing out on the ground within the immigration sphere. And I think some scholars have been saying, no, this case is being decided. The specific Trumpy cause of birthright citizenship issue is being addressed. And in the meantime, the effects on specific individuals have been mitigated and we've been instructed not to enforce it yet. And I think this is just such a stark example of how even though in that one specific case that might be true in every other immigration related and then I'm sure in so many other areas that's not the case. And there are deep impacts being felt.
[00:21:55] Speaker C: Absolutely. And even just the idea that I feel like in a lot of ways Trump Picassa is encouraging forum shopping and it's encouraging clients to move to certain locations. It is a conversation I'm genuinely having to have with clients in my office of what does this look like to live here versus to live somewhere else. And I do think, yes, I get that in the birthright citizenship context, it's been enjoined, it's not happening. I at the moment Supreme Court's going to issue a decision, come what may with that. But I think this idea, I think also the idea that I don't know when Trump, because it came out, I'd feel like so many people were like, it doesn't matter, just do class action. This isn't going to affect it. And I get the idea academically, but I think practically when you're working with clients, the access to an attorney that can do a class action or that has the time to do a class action or has even access, even having access to our clients is incredibly difficult in immigration detention. Some of our facilities, I only get 15 minutes to talk with my client at once and then the time is up and so then I'd have to request another.
It is so difficult to do so many of things that are much more formalized. If you're in the criminal context and someone is in jail, that does not exist. That formality doesn't exist in the immigration context because technically civil detention, it's not criminal, whatever that means on paper, but it it is not.
Yes, academically you should just be able to do class action. I think in reality what is happening is we are seeing so many people either signing voluntary departures or getting deported because they don't have an access to a way to get that law to apply to them. The law is what it is. You don't need a law to necessarily change or not change. And that's what the thing is that's really tricky. And I feel like before Trump, because everything that was getting these nationwide injunctions was like new executive orders. Yep. For under Trump, under Biden, under whoever it was like when a new law, law or policy was put up, that's when things were getting sued over for those nationwide injunctions.
But even since then, a lot of what's happening is just reinterpretation of laws. And so it's not even a change in the law, it's a change in the way that the government is interpreting the law, which honestly makes it trickier because then there's not this, there's not just this assumption from the judge, oh, I know what the law is, I'm going to apply it because they're being told to interpret it differently. And so I think number the percent of immigrants in detained like in detention centers that have access to attorneys across the country I think is 14 and non detained. So deep normal deportation defense I think is somewhere in the 30s, like 36% maybe or something like that. So when you think about like access to counsel normally and then now you think about there is no nationwide injunction that a judge is just going to apply and even to apply for, even if a class action existed, you still have to apply to be a member of that class and you're not going to do that as a layperson generally. And I think part of it that becomes really problematic in immigration concept is we don't have a public defender system in the immigration context. So most people are unrepresented. And if you are unrepresented, even having to become a member of a class is something that you may really have no idea how to do.
[00:25:05] Speaker B: Yeah, yeah, I have no idea how to do that.
I can only imagine that is.
Yeah, that is so helpful to hear your perspective, just to wrap up on maybe hopefully some positive light, I guess.
How do you see or do you see any way in which the access to justice movement and where should resources go? I think a huge kind of talking point that that has come up repeatedly is just like there are not many, there are not enough attorneys, it seems like to meet the demand Currently, and I think when the number of clients or prospective clients in this space has just exploded, given the policy changes, the new interpretations, are there any other ways that you can see resources being helpful and also as law students who want to be able to help and contribute, like, where are our energies best devoted?
[00:25:54] Speaker C: Yeah, absolutely. I definitely think like partnership with local nonprofits is crucial. Like, we have started a pro bono attorney program where attorneys can take a bond and habeas case. The good news is in immigration is extremely complicated and changes every five minutes. Like I do spend probably two hours every morning reading what has changed in the past 24 hours. So it is a wild field of law to practice in. But I do think there's hope in the bond and habeas context specifically that it is pretty straightforward what you're asking for. And that is definitely something that law students volunteer attorneys can partner with local nonprofits on taking those cases and filing them and just representing and walking them through the process. They may not. It's a lot more tricky to do pro bono work in underlying immigration cases, but at least to try to get them out of detention. In this specific context, volunteers and pro bono attorneys can be extremely helpful for those things. I think just funding local nonprofits is crucial because there is just so many of the immigrants that aren't going to have access to the money to be able to pay for these expenses. It's a little bit different for our populations that have lived here for decades. They have been able to develop a life and funding for all of that. But if they're recently arrived immigrants, the ability to come up with money like that is really difficult. And so I think obviously funding local nonprofits is super important. And then even just I think we've all had a restructure in a lot of ways. There is something cool in the immigration space called Department of Justice representatives where it's a non lawyer can practice immigration law if they.
They go through this certain kind of program and all of that. Now they can't practice in state court and federal court, so they couldn't do the. Or some specific state court orders that we need for certain immigration cases. But they can take a lot of. They can do the immigration court and they can do affirmative filings. And I definitely think there's space for that to be something that help take loads off attorneys.
[00:27:50] Speaker B: Yep.
[00:27:51] Speaker C: So that the attorneys can do more of the federal litigation and things like that. But I definitely think we as immigration attorneys, we have had to be really scrappy for a long time because the law has always been so political and has always changed constantly with the new day kind of thing. And so I do think there's a lot of hope of, okay, we are seeing a lot of victories, even though we're also seeing a lot of losses. And so it's still worth the fight. It's just a little bit more creativity of like, where. Of having to like co work with attorneys in other states that you've never met before and having to figure that out. We've even had like law students here that we worked with that have done a lot of the research for those KBF cases. Like when I'm having to prove has this judge ever filed it? We've worked with tech people and we work with law students to try to get that data. And so I definitely think there's a part for everybody to play in it. I think it has been great this past year. There has been so much outrage over killings that ICE has done and different ways that they carried things out that it has helped have more community support. And so we're hoping too, that doesn't die down when the like rage fad dies down because the cases take a long time in our client's life, are going to be unaffected in two months when it's out of the news cycle kind of thing. We're hopeful by the community sport, but like, we're hoping that it can last long term and not just be something that goes away when the next new story comes.
[00:29:13] Speaker B: Yeah, no, absolutely. That makes a ton of sense and hopefully listeners. I know I. I feel very inspired, so hopefully listeners do too. But thank you so much for taking the time, especially given how busy you are and all of the amazing work that you and the nonprofit do. It was so wonderful to meet you and I really appreciate it.
[00:29:33] Speaker C: Yeah, no problem. Thanks for talking.
[00:29:35] Speaker B: Of course.
[00:29:36] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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[00:30:02] Speaker D: For those of you who went to the theaters in January, you may have seen Brad Pitt's new movie, Mercy. This movie takes place in a dystopian Future where an AI judge presides over murder trials. Each defendant is given 90 minutes to prove their innocence. We don't live in that world, but the film highlights a question that is at the forefront of our mind as AI advances.
What role should AI play in our criminal justice system?
