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Posted Feb. 9, 2011

Martin Returns to Classroom from Homeland Security Post

David Martin

Professor David Martin is back at the Law School this semester after two years as deputy general counsel at the Department of Homeland Security.

Martin, who was also general counsel of the Immigration and Naturalization Service from 1995-98, said he enjoyed his government service but is happy to return to academia.

“It’s been like turning off a switch,” he said of the sharp differences between his government position and life at the law school. “I loved my work there, but I was quite ready to move into a situation where I’m able to reflect more broadly on issues that I worked on, and on a wider range of topics that have been of interest to me. I also need to catch up on a lot of reading. My job didn’t afford much opportunity to follow the scholarly literature.”

As the second-highest ranking lawyer at Homeland Security — which has more than 200,000 employees and a legal team of 1,700 attorneys — Martin worked on a wide range of matters, but focused primarily on immigration and issues related to the prison in Guantanamo Bay, Cuba.

“A typical day would involve a series of meetings, which might be within the department, or at the White House, the Justice Department or on Capitol Hill, plus sessions squeezed in for pre-meeting preparation or a briefing,” he said. “There would also be memos to write or review, legal opinions to sign, and maybe a couple hundred emails.”

He said public service is an enormous opportunity for lawyers at any level, and that it’s important for students interested in such work to obtain a broad range of experience and training. Government lawyering demands both strong legal skills and awareness of public policy issues. It also helps to have a sense for tactics and timing, and “the discipline to look 10 moves ahead on the chessboard,” Martin said. The government needs well-trained lawyers who are able to do more than focus exclusively on narrow legal questions, he said.

“The best kind of training is broad: bring a good undergraduate background, and take diverse courses in law school. It doesn’t hurt to gain other experience for a while before going into government, though there is certainly an important role for people who find their way directly into government service,” he said.

Martin worked for Homeland Security Secretary Janet Napolitano ’83, a former U.S. attorney and Arizona governor, who also happened to be a student in the first class Martin taught at the Law School.

“It was great. I’ve known her for 30 years,” he said. “I had some chance to work with her when she was a U.S. attorney in Arizona and I was at INS, and we kept in touch during her service as governor. She’s a superb government executive, very well prepared for this job — decisive, a quick study. I can’t imagine a better set of experiences than what she’s had at the federal and state level to prepare someone for the job of Secretary of Homeland Security. No department has a more diverse or demanding portfolio.”

Though Congress did not pass a comprehensive immigration reform bill while he was in Washington, D.C., Martin said both Napolitano and President Barack Obama remain committed to the goal of overhauling the system, and a lot of work has already gone into the effort.

“It was clear that health care reform was going to come first,” Martin said. “That took a lot longer than expected. It required members of Congress to stick their necks out and take some difficult votes, and that undercut the appetite for legislating on the toxic issue of immigration.”

Comprehensive and truly workable reform requires both more effective enforcement measures and some path to earned legal status for the estimated 10 million illegal migrants in the country, he said. But inflamed passions make the necessary compromises difficult to achieve, Martin said.

“The way things are aligned, polarization poses a great difficulty in putting all those pieces together,” he said.  But piecemeal changes also face major hurdles. “One side or the other — the tough enforcement partisans or the supporters of broad legalization — will fight very hard if the measure they most want isn’t included.”

Though a legislative solution may not be immediately forthcoming, smaller and more incremental administrative improvements can also make a large difference, he said.

“One example that I was involved with dealt with the rules for detention of asylum seekers who are identified as they come into the ports of entry,” Martin said.

People who arrive at the border seeking entry with either fraudulent documents or no documents at all are subject to a process called expedited removal. But if the individual mentions a fear of return or applies for asylum, a separate and more extensive evaluation process kicks in, Martin said. If their claims pass a threshold, known as “credible fear,” they will be able to make a full asylum claim before an immigration judge. 

But should they be detained pending that hearing? In the early years of expedited removal, that decision was left to local enforcement offices, and their practices varied widely.

In 2007 DHS adopted a policy with the aim of imposing a uniform standard, but the policy was not well-designed, he said. Martin was part of a team that reviewed that policy to make the substantive standards more balanced, but also to design a better monitoring and review system, to give real assurance that the standards are applied evenly around the country.

The revised policy has been well received by advocates concerned with fair treatment of asylum seekers and has generally been accepted among supporters of enforcement-minded reforms, he said.

“Such changes won’t resolve the overall issue where people say we have a broken immigration system,” Martin said, but incremental improvements by the offices that manage a program “are always valuable – and also gratifying for those involved in crafting them.”

He said government often functions that way.  “You need to pick your targets, because it takes a lot of energy and persistence to make even small changes, but the small changes can be important.”

During his time at Homeland Security, Martin also worked on issues ranging from the oil spill in the Gulf of Mexico to the federal government’s response to the earthquake in Haiti. He played a central role in developing the federal government’s legal response to Arizona’s controversial new immigration law, and was part of a team of lawyers who traveled to Phoenix for arguments in federal district court.

Going forward, Martin said he plans to begin promptly on some writing and research projects, including a new edition of his immigration law casebook. This semester he’s teaching Presidential Powers.

“I have lots of new material to draw on for classroom discussion, but I’ll have to be careful and remember which stories are classified,” he joked.

“It’s really good to get back in the classroom. It’s such a different rhythm around here than what I experienced in Washington. I loved what I did, it was very exciting, but it really made you appreciate what we have here in Charlottesville at the Law School.”