Crossing Rice Fields by Moonlight: Listening as a Tool for Advocacy

Maneuvering through rice fields by moonlight and crossing the border with patrol officers at his heels, my grandfather arrived in Hong Kong in the 1960s with nothing more than the clothes on his back. A physician and member of the intellectual class, my grandfather saw the Cultural Revolution emerging in China as a threat and understood the impending persecution of those that voiced opposition to the Communist Party. He hired a smuggler to help him cross the border from southern China into British-controlled Hong Kong territory. The journey was fraught with unexpected obstacles and dangers; swimming through murky waters and running on foot to evade border patrols, my grandfather soon found sanctuary in Hong Kong, a rapidly growing island city booming with activity.

The actions of my grandfather set into motion a series of events that led to my existence. Soon after he settled in Hong Kong, my mother received a temporary travel permit to visit her father. My mother never returned to China. Upon starting high school, she met a shy and lanky physics-obsessed teenager that helped her with her math homework. My mother and father were not dating then but it became clear that in addition to his love for physics, my father was in love with my mother.

My parents arrived separately in the United States under student visas. In pictures, my mother has her hair long and straight, almost waist length, and mugs a carefree smile to the camera surrounded by other female students from Hong Kong. My father wears bellbottoms and a powder blue frilly top, smirks through a mustache, and dons a mop of wavy permed hair and thick bottle cap glasses.

My father remained obsessed with physics and pursued a graduate degree at the University of Maryland. Upon hearing that my mother had recently started her studies at the University of Wisconsin, he made the love-struck decision to leave his degree program in Maryland and join the graduate program at the University of Wisconsin in Madison to be closer to my mother. When he tells this story, it is as if there was no choice in the matter. There are pictures of them lounging on a summer day, still wearing the bellbottoms and frilly tops, on the grounds of the university campus with sailboats lazily floating behind them on Lake Monona.

The transition to life in the United States was not without its difficulties. A clerical error by an employer left my parents without status and forced a temporary return to Hong Kong with my eldest sister, still an infant, in tow. Though they eventually returned and quickly acclimated to American life, learned English, and even cooked tuna casseroles with canned Campbell’s soup on busy weekday nights, my parents still felt the subtle pangs of being seen as foreign. I learned this lesson in elementary school when a classmate whispered, “go back to China” to me during third period art class as I was picking out blue construction paper. Though having never heard that phrase before, my six-year-old mind immediately understood the implication of his words; my value and belonging amongst my classmates was less because of where my parents came from and how I looked.

That lesson I learned in third period art class resonates with me and propels me forward to this day. I arrived at law school knowing I wanted to work with and on behalf of individuals who are members of marginalized and often unseen communities. During my second year of law school, I participated in Penn State Law’s Center for Immigrants’ Rights as a student-attorney. I was provided the unique opportunity to work on behalf of the American Bar Association’s Commission on Immigration to co-lead a delegation as part of the Commission’s Detention Standards Implementation Initiative.[i] The semester-long project culminated in a comprehensive report on the status of the implementation of the U.S. Immigration and Customs Enforcement’s detention standards at a local prison contracted to hold immigration detainees. In the weeks leading up to the observational visit of the local prison, my partner and I learned the important skill of listening as a tool of lawyering. Not only was listening an important component to our client-centered advocacy and important in discerning the goals of our client, but listening was critical in interviewing prison staff and detainees.

Very often, the expectation of a lawyer is someone who controls a situation by speaking persuasively. A supervising attorney once told me that the role of the lawyer is to toe the line between therapist and attorney. While the goal is to competently and zealously provide legal advice, and represent a client in any given venue, sometimes all the client wants is to be heard and have their story be told when no one has listened before. During my third year of law school, my law school’s course in advocacy emphasized the story-telling aspect of civil and criminal litigation. In particular, telling a story to an audience that includes characters and their motives may be more convincing than legal standards and jargon. In other words, endless definitions of “beyond a reasonable doubt” may be less effective unless a jury understands a client’s story and why that version makes the most sense knowing the motives of all characters involved. This is not to dismiss the necessity for legal research and analysis; however, I am becoming more convinced that effective lawyering involves a full understanding of our clients’ stories, building trust within the attorney-client relationship, and relaying our clients’ narratives to a judge or jury in a compelling way.

During an internship with the Pennsylvania Immigration Resource Center (“PIRC”)[ii], a non-profit that provides legal resources and representation to indigent immigration detainees in removal proceedings, I was provided the opportunity to represent a refugee from Sudan facing deportation. At our first meeting, I was eager to check off a list of questions that I had regarding his case and a stack of paperwork to go over. I left that initial meeting with more questions than answers. When I returned and gave him an opportunity to tell his story, his trust in me increased and I was able to see more clearly the issues that needed to be addressed.  Though his case was dismissed on a legal question that I presented to the Immigration Judge, my client gave me room to explore those issues because he knew that I understood his story. Listening is not a static activity. It requires giving your client room to speak and an opportunity to be heard.

The same was true when I was an assistant public defender in Reading, Pennsylvania. Though faced with hundreds of files at any given time, listening became a critical part of building trust and competently representing a client. Very often a legal issue, defense, or weakness in the Commonwealth’s case would emerge only if I was carefully listening to a client’s story and responded with the right questions. I saw many senior public defenders ask their clients, “what’s your side of the story?” and actually listen knowing that a judge was impatiently waiting for an answer in the next room. It would be easy, given over stretched resources, for a public service attorney to treat clients as files that need to be reviewed and resolved. However, my prior experiences and education, through coursework and clinical opportunities, reinforced the importance of client-focused representation and listening as a tool of effective lawyering.

In every position I have held, there have been questions regarding my ethnicity or my origin. I have had puzzled clients ask if I was a native English speaker and other clients assume that I am meek because of historical stereotypes of Asian women as quiet and docile. Proving that assumption wrong is of particular interest to me because there is room in the legal field for those that do not fit the mold of a traditional attorney. I may be reserved and speak with less bravado than others, but I am not meek. Though it has been a long time since anyone has implied that I should return to China, knowing the sting of being considered an outsider is what makes me a better advocate for clients who feel cast aside and face insurmountable challenges against them.

Citation: Rebecca Kerner, Crossing Rice Fields by Moonlight: Listening as a Tool for Advocacy, in Back Into the Future of Immigration: Personal Stories by the Penn State Law Center for Immigrants' Rights Clinic (Shoba Sivaprasad Wadhia ed., 2018). https://doi.org/10.18113/P8immigration5