Abstract

Excerpted From: Emily D. Asher, Facing Reasonableness: Cross-cultural Competency Training in Law School Focused on Reasonable Fear Determinations for Lgbtqia+ Latinx Individuals, 51 Capital University Law Review 376 (Fall, 2023) (131 Footnotes) (Full Document)

How someone traveled through Central America to reach the United States border is an important journey. Understanding why an individual would undertake such an endeavor is equally important when determining the reasonableness of any fear in returning to their home country. Awareness for an individual's perspective requires developing cross-cultural competency, which is now an American Bar Association (ABA) requirement. With a shift in the legal profession that intentionally addresses bias and discrimination in our justice system, law schools need to explore the meaning and importance of cross-cultural competency.

To incorporate these skills in the law school curriculum, one suggested approach to help students develop a meaningful understanding of cross-cultural competency is analyzing the reasonableness of someone's actions. Cross-cultural competency can be viewed through the lens of any number of laws that include a reasonableness standard. To highlight how to develop cross-cultural competency, this Article utilizes immigration law 8 CFR § 208.31 (§ 208.31) for LGBTQ Latinx individuals seeking asylum or withholding of removal due to reasonable fear of persecution or torture if removed. The focal point of this Article explores how to incorporate a practical activity addressing a specific culture into the law school curriculum. This practical lesson plan highlights what the word “reasonable” means in the context of immigration law when an individual seeks asylum or to withhold removal under Section 208.31, while empowering students to develop their own cross-cultural competency and professional identity.

Part II of this Article explores various definitions of cultural competency and its importance to the legal profession. Additionally, this Part discusses the updates to the ABA Standard 303 and relevant Interpretations related to cross-cultural competency and professional identity. Part III discusses different approaches to implementing cultural competency into the legal classroom. This Part also explains reasonableness and how it intersects with cultural competency and developing a professional identity. The connection of reasonableness and cultural competency is explored through Section 208.31.

Then, Part IV provides a practical activity that addresses reasonableness and cross-cultural competency through analyzing the regulation. The lesson utilizes a discussion of real stories of LGBTQ Latinx individuals who faced removal. This Part also includes student learning objectives related to developing professional identity and improving cross-cultural competency, along with reflective questions to further students' critical thinking. The Article concludes with a student handout that can be tailored to fit individual classroom needs in providing cross-cultural competency training based on analyzing and reflecting on reasonable fear determinations under Section 208.31. With a country rich with multiculturalism and diversity, and a legal system filled with the reasonableness standard, law school curricula must shift the focus toward practical skills that improve cultural competency and help students develop their professional identity.

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Developing professional identity through improving cross-cultural competency is a new factor in legal education. Where to implement this and other cross-cultural trainings into the law school curriculum is an important consideration. Law schools can address this change by planning intentional lessons and activities that enable students to gain self-reflection skills to understand the nuances of culture. Focusing on immigration law Section 208.31 through the perspective of an LGBTQ Latinx individual allows an intersectional approach to cross-cultural competency. Not only will students learn about the cultural perspective of an immigrant who seeks asylum or requests withholding of removal from the United States, but students can also begin to appreciate the perspective of an LGBTQ immigrant and what cultural differences these individuals face in the world.

An important piece to remember: this approach is just one way to implement cross-cultural competency training into law school education. Law schools are also now required to introduce students to cross-cultural competency at the beginning of their law school careers. Orientation is a suggested time to incorporate cross-cultural competency training and allow students to embark on their legal education with self-reflection skills to start developing their professional identity. One suggestion is to integrate implicit bias instruction and require new students to complete Implicit Association Test (IAT) assessments during orientation. Given how personal the results from an IAT can be, students should not necessarily be required to share the outcome of the tests. Instead, students should be encouraged to reflect and respond to their results--an imperative aspect in advancing professional identity. Then, students can take the IAT assessments near the end of their legal education to further reflect on their growth and development.

Apart from implementing cross-cultural competency training at the forefront of the law school journey or when starting field placements, the next step is to find applicability in other educational settings, especially in doctrinal classrooms. Every law student will take these core classes and implementation in the standard courses ensures each student is provided the opportunity to grow from the experience.

The ABA embraced the intentional development of cross-cultural competency and professional identity. Now law schools and law professors must strive to implement these goals across the curriculum. One way to accomplish this goal is helping future lawyers learn how to support their clients facing the reasonableness standard.!

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J.D., Capital University Law School, 2022. B.A.E. Art Education, The Ohio State University, 2015.