By Jeffrey Donahoe
Imagine you live in a country torn by civil strife. You belong to a minority ethnic group, and are mistakenly captured as a rebel and subjected to months of torture. You manage to escape and flee to the United States seeking political asylum.
But, once again, you are falsely accused. You face deportation. Under America's current immigration policy, you are not entitled to legal representation—a right afforded to even those accused of the most heinous crimes. Thus you're confined in legal limbo.
"The civil detention system is perverse—there's no sentence. You don't know how long you will be detained," says attorney Ahilan Arulanantham (C'94). "It's brutal on detainees and their families."
Currently the director of advocacy/legal director of the American Civil Liberties Union of Southern California, Arulanantham has devoted his career to transforming the American immigration system, arguing a number of landmark cases in federal appeals courts, including one recently before the Supreme Court. In September 2016, Arulanantham was awarded the prestigious MacArthur Fellowship "genius grant" to advance his work.
"Immigration law and the protections that we afford are stuck in the 19th century," Arulanantham remarked in a recent MacArthur Foundation interview. "We're trying to harmonize immigration law with our constitutional law—and also our values."
"It's mentally and emotionally harder when you don't know how long you will be detained."
The Importance of Empathy
While acknowledging valid disagreements over immigration policy, Arulanantham insists that all policy debates must include an essential ingredient: empathy.
"People don't take the time or space to put themselves in the shoes of those affected by the situation," he says.
The son of Sri Lankan political immigrants, Arulanantham witnessed first-hand the struggles faced by displaced people. "I was born here in the U.S. When I was 10 years old, the civil war in Sri Lanka began, and members of our extended family came to the U.S. for safety. Some lived with us." Among the family refugees were young cousins whose parents had remained behind.
"Looking back, this was a formative moment for me," he says.
Arulanantham became active in debate while a high school student, and was drawn to Georgetown because of the reputation of the debate team. "Even now, I'm shaped by what I learned from coaches and peers on the debate team. My team members are largely in touch as friends to this day," he says.
He earned his undergraduate degree in philosophy and continued his studies as a Marshall Scholar at Oxford. "I loved it, but the academic life was not really for me. I wanted to more clearly manifest my political interests," he says.
Arulanantham attended Yale Law School, and after clerking for a judge took his first job with the ACLU, working with immigrants in New York and New Jersey detained after 9/11. He then went on to a position as an assistant public defender in El Paso, Texas, and returned to the ACLU in his native Southern California in 2004.
Leveling the Playing Field
Arulanantham's primary focus is working to ensure due process for immigrants facing deportation—both securing legal representation and ending indefinite detentions.
He successfully argued the class action suit Rodriguez v. Robbins before the Ninth Circuit Court of Appeals, which established that immigrants in pending removal proceedings have the right to ask for bond at a hearing if they have been detained for six months or longer.
In November 2016, Arulanantham argued the Rodriguez case before the U.S. Supreme Court, asking the court to uphold and expand the policy on granting bond.
As he asks others to do, Arulanantham attempts to put himself in the shoes of those in indefinite detention, whether they have committed an illegal act or not.
"The most troubling aspect is arbitrariness under the law," he says. "It has a psychological impact on people. It's mentally and emotionally harder when you don't know how long you will be detained."
"We're arguing that due process requires you to level the playing field."
He has become intimately familiar with the detention centers that house individuals in legal limbo—many run by private industry and not subject to strict regulation or scrutiny. "It's a detention center, not a prison. But it functions as a prison," he says. "People wear jumpsuits, they are in cells, their movements are controlled by guards, they speak to family members on a phone from behind glass—that's prison."
Arulanantham is especially concerned with the fate of children facing deportation, 44 percent of whom lack legal representation. The situation has become far worse in recent years with the wave of young people from Central America fleeing violence and seeking asylum in the U.S.
His greatest disappointment as an attorney came in the recent case of JEFM v. Lynch, which, ironically, was decided at the same time Arulanantham received news of the MacArthur grant. "It's a class action seeking to establish a right to appointed counsel for children who are being deported," he explains. "The government pays a prosecutor to argue against the child in every case. We're arguing that due process requires you to level the playing field, and the kids should have lawyers too."
While stating that the court had no jurisdiction, Ninth Circuit Judge Margaret McKeown wrote in her opinion that outcome was not a ruling on the merits of children's claims. She called on the president and Congress to create a political solution.
"I think the court both misread the law and failed to understand the plight of those children," Arulanantham remarked in an ACLU interview. "Honestly if I could, I would trade the [MacArthur] award in a heartbeat to win counsel for children."
'Our Best Work Is Ahead'
The MacArthur grant came as a complete shock to Arulanantham, who calls himself "a cog in a very good wheel." In fact, it took the foundation several tries to actually inform Arulanantham of the good news.
"I was at home working—I had to get a brief out that day. My phone rang," he says. "I could see the call number on the screen. I didn't know anyone from area code 312. I'd seen the same number at work.
"I thought, 'Who is pestering me? Who is this person?' I wasn't paying a lot of attention when I answered the phone." He heard the word "foundation" and thought it had something to do with fundraising, so he offered to transfer the call to the ACLU's development office. "The person on the line said, 'No, no. We want to talk to you."
Arulanantham says that the award will not change him or what he does, but it will allow him to elevate his work in the U.S. and focus more attention on Sri Lankan human rights.
He remains undaunted by political and legal challenges. As he recently wrote: "Immigration detention is a system of imprisonment without trial. No one can deny it presents serious constitutional problems.
"Win, lose, or draw, we will continue to speak that simple truth, and it will eventually prevail. Our best work is still ahead of us."