Nick in the Headlights: Part Two

Continued from 2/10/12 post

In November 2010, I made the request to DHS to withdraw Nick’s immigration charge, citing Nick’s age, the fact that he had been brought to the US at age 3, and that his DUI had been as a juvenile. I made the most of the letters of support, and included a drawing by Nick’s seven-year-old brother showing how sad he would be if Nick were deported. I showed Nick’s grade school and high school certificates of good behavior to prove that he had been in the US since before kindergarten. I got a one line letter from the DHS attorney assigned to Nick’s case: “The Department declines to exercise prosecutorial discretion.” Nick was still in deportation proceedings.

I called Nick’s mother, Sara, and requested a meeting with her, immediately. She told me that Nick could meet with me by himself, since his immigration case was his responsibility. No, it’s not, I said. He can’t do it alone. He must have your help. It was finally clear to me, at long last, that Nick couldn’t be alone in this. Sara reluctantly agreed to accompany Nick, and we met in mid-November 2010. Asylum is our only option now, I said. We have to file by December 10^th, Nick’s court date, and Nick needs help to get on the internet and look up what is happening in Mexico to US deportees. He has to know so that we can truthfully tell the judge if Nick is afraid to go there.

Nick’s 15-year-old sister, Maria de los Angeles, helped Nick research, and Nick told me on November 30^th, “My sister and I looked at what is happening in Mexico. Looks like a lot of bad things happening to people.” “Would you want to go there by yourself Nick, and live there without your family?” Nick said, “I don’t think so. Would I have a place to stay? I don’t think I know anyone there.” “Are you afraid to go there by yourself Nick?” “Yes”, he said, “I’m afraid.”

With help from Sara, we completed the ten-page asylum application and presented it to the immigration judge on December 10^th. The judge set the final asylum hearing for February 2012, in which we would document the threat of death that awaited Nick if he were deported to Mexico, and make the legal argument for asylum. I told Nick and Sara that we would start working on the argument and documentation in the case in November 2011, and to keep me informed of any changes in Nick’s situation.

In July 2011 Nick was arrested on charges of residential burglary and attempted theft. I got the call from his public defender, Cynthia. She told me that Nick was clearly functioning at a low intellectual level. She was ordering a psychological evaluation of his ability to stand trial and to understand the charges against him, in the hope of at least mitigating the sentence. She said that Nick had tried to attach himself to a group of his former classmates who were having a party, and come unbidden into the house where the party was being held. When the group left the house to avoid Nick, he stayed and started looking through a CD collection. The boy who lived in the house returned and saw Nick with the CD in his hand, and called the police. Nick was arrested, charged, and taken again to jail. Since the arrest was a probation violation, Nick was automatically found guilty of the juvenile DUI, and now sentenced as an adult. Cynthia told me that it was well worth it for Nick to stay in jail until the evaluation was completed; it could go far to help her get a lighter sentence on the theft charge, and would count towards serving his sentence on the DUI.

Nick spent four months in jail, and ICE put another hold on him. If ICE took him to detention again when his jail term was up, he would most likely lose his immigration bond, and I would have to present Nick’s asylum case while he was in detention. If I lost the case, which was nearly certain, I would have to appeal the denial while Nick stayed detained for up to a year while the appeal was being decided. Nick waited for nearly three months before the forensic psychologist could meet with him in jail, and another month to get the report. When it came, it was unequivocal. Nick’s intellectual capacity was borderline, just barely above the level that defines mental retardation. He could not read social cues, nor understand the consequences of his actions. But that wasn’t all the report said. Nick was an incipient schizophrenic, with delusions. He was at the usual age for onset of schizophrenia.

With this report, Cynthia was able to get a suspended sentence for Nick on not only the theft, but also the DUI. I requested and got the ICE hold lifted, with a promise that Nick’s parents would be responsible for making sure he showed up in immigration court. When Nick was released from jail, and walked out onto the street, he disappeared for nearly five hours. I got the call in the morning from Cynthia that he was about to be released, and told Sara so that she could catch the bus to downtown Seattle to pick him up. Sara called me hours later to say that she had been waiting at the jail with no sign of Nick. I called Cynthia, then the ICE officer assigned to Nick. Both affirmed that he had been released. He must have been put out on the street before his mother arrived, and just walked away. Sara frantically scoured the streets around the jail for hours, looking for Nick. He finally called her from a homeless shelter that gave him a free phone call, and she took him home.

Nick’s diagnosis had an electrifying effect on Nick’s parents and on me as his attorney. I went from sighing and getting annoyed about Nick’s crimes and lack of action on the tasks he had to do to in order to “look good” to DHS and thus have a better chance of getting out of deportation proceedings, to being passionate about proving that he didn’t deserve deportation. Once I understood that Nick wasn’t just being annoying and obtuse, but dealing with severe illness, I accepted Nick as he was. I was ashamed that I hadn’t read the clues about Nick before, and grateful that his public defender had. I turned to his parents for help. And this time, they were there for him.

Sara and Carlos, Nick’s father, asked me to have Nick’s evaluation translated into Spanish, and after they read it, we met to discuss next steps in Nick’s case. They too had made a turn-around about Nick. They told me that they didn’t know that Nick had an illness, and didn’t know that he had a hard time understanding the world around him. Sara cried as she told me that she regretted yelling at Nick for so many years to shape up, for not helping him in school, and for missing all the clues that he needed help. She said that not once had any of Nick’s teachers told her anything about Nick except that he needed to pay attention in class. She said they thought that if they left Nick on his own to find a job, and do what he needed to do for his immigration case, it would help him grow up. She and Carlos were ready now to do what they could for Nick’s immigration case.

To be continued...

Nick in the Headlights: Part One

Nicolas was 17 when he was arrested on a drunk driving charge in January 2010, but he hadn’t been driving. He had been drinking though. The boy who was driving did a quick scramble under Nick, who was sitting on the passenger side of the car, and pushed Nick into the driver’s seat after the state trooper pulled the car over. It was dark and the trooper didn’t see the move. Nick tried to explain that he didn’t drive, didn’t have a license, hadn’t been driving, but his speech was muddled. The trooper arrested him when he failed the walk-the-line test by the side of the road and booked him into jail in downtown Seattle. When I got to know Nick, I could see how it happened, his being shoved into the driver’s seat, and taking the blame for drunk driving. His high school classmates had called him “clueless,” among other more unflattering names. He was so guileless that he didn’t think the other boy had done anything wrong.

Nick’s public defender advised him not to try to defend himself by pleading that he hadn’t been driving, since the judge wouldn’t believe him. This was Nick’s first criminal offense, so he’d get a deferred sentence. That would mean no jail time and the conviction dismissed if Nick had no probation violations for five years. All this sounded good, and sounded good to Nick’s parents, too, so he pled guilty, then waited in jail for his sentencing hearing a few weeks after his arrest. The judge had set bail, but Nick’s parents didn’t have money to pay it, or any collateral to offer to a bail bond company. Even if they had bailed him out, he would not have been released. Immigration and Customs Enforcement (ICE) had placed a detention hold on him. He was charged by ICE with being in the country illegally.

Nick is an undocumented immigrant. His parents brought him at age three from Mexico, walking with him through the Arizona desert. Nick had never done well in school; in high school he flunked nearly all his classes, and finally dropped out at age 16. His parents repeatedly asked him to get a job, but even though he seemed to try, filling out applications for fast food restaurants and factories, he never got a call back. He was a tall, thin boy with a gentle manner, and amiable. He would have been good looking but for a vagueness about him; he didn’t look one in the eye, and his speech was disjointed. He answered a question, “Did you know that it was ICE who interviewed you in jail?” by saying “I was just sitting on the bunk, you know, and there was someone calling my name, and then I just went to a room and I sat there with a woman, who I thought I knew. I thought she was Mrs. Allbright, from the high school, and we talked for a while. She was nice.”

I met Nick in the Northwest Detention Center, and represented him in a bond hearing in April 2010. We got bail of $3000, the lowest bail usually given by judges in detention. Nick was only 18, was a first time offender, and had been in the country since he was a toddler. All that weighed in his favor. His parents’ church held a fundraiser for the bail money. His first immigration hearing was scheduled for Seattle in December 2010. Nick seemed unworldly to me, not able to connect actions with consequences, but his parents said he was just lazy; he needed to be responsible for himself. They told me to work directly with Nick; he needed to give me all the information necessary to prepare a request to the Department of Homeland Security (DHS) to drop the immigration charges against him. They seemed to wash their hands of him after he got out of immigration detention.

I told Nick that we needed to prove four things before we could ask DHS to drop charges: first, that he was getting a GED and enrolled in community college; second, that he was a volunteer for community organizations and had the support of many members of his community; third, that he was abiding by all the terms of his probation, including going to Alcoholics Anonymous and meeting with a counselor, and fourth, that he had the full support of his probation officer.

My plan was to show that Nick fit the DREAM Act criteria to have the immigration charge against him dropped, even though the Act was only a bill in both the Senate and the House, and a battered bill at that. The DREAM proposal was to give those who had been brought into the country undocumented before the age of 16, who had graduated from high school and fulfilled other requirements, a path toward legal residence and eventual citizenship. In late 2010 and early 2011, immigration advocates still held out hope that Congress would pass the DREAM Act. The bill at times looked as though it had enough bipartisan support to pass, and President Obama stood ready to sign it into law. The DREAM Act was Nick’s best hope; he would have no other way of staying in the country. If the immigration charge was not dropped, he would be deported immediately after his first court hearing in immigration court. There was one faint hope: asylum.

If we couldn’t get the Department of Homeland Security to withdraw the charges, and thus stop the deportation process, I would have a file an asylum claim for Nick. Such a claim had a zero percent chance of winning in court; federal courts in no instance that I could find had granted asylum to Mexican deportees from the US who feared that they would be targets for criminal gangs if they returned. Nick had no family in Mexico willing to take him in; he would be a homeless, destitute deportee who spoke Spanish with a US accent. It was clear to me that he would be easy prey in Mexico. It was equally clear that it didn’t matter a hoot to his chance of getting asylum. The only saving grace was the possibility, after we lost the asylum claim, that ICE would agree not to deport him, at least for long enough to benefit from immigration reform, that ever-receding chimera.

Nick called me every month to report on his progress with his four tasks. Every call was similar. I’d say, “So how’s it going with your number one task of getting into the GED program, Nick?” Nick would tell me, each time, a version of the same story. He had made calls, he had gone to the program to apply, he had filled out paperwork, and yet for a reason he didn’t know, somehow he was still not in a class. It was the same for the other tasks. He had asked at the youth program if he could volunteer, but the program director had not called him. He tried to find out where Alcoholics Anonymous was meeting, but he couldn’t get the information. He had the name of a counselor but the counselor had not called him.

Nick was unfailingly polite and cheerful during our calls. He always began them by saying, “Hello Margaret! How are you today? Do you have sun (or rain, or wind) over where you are? Over here, it’s really sunny.” He never reflected on his experiences, or seemed to learn new methods of achieving his goal. He didn’t blame anyone either, or seem bitter at his lack of success. In October 2010, I told Nick that we had one month left before I had to have all the information that I needed to show DHS that he deserved to have the immigration charges against him dropped. He had made no progress in getting any of the information I requested. I called his mother for help, but she said that Nick needed to learn that he was responsible for helping himself. She said she would ask people at their church for letters of support for Nick, but wouldn’t do more.

To be continued...

Representing Duncan McDonald: Part Two

Continued from 1/27/12

Jonathan and I strategized on next steps every few days. We decided to negotiate with Immigration for his release – after all, there was no immigration violation – if he had a sponsor who would give him an address to which he could be released, despite not having clear identity documents. We thought about people we knew who might be willing to help Duncan, but he surprised us by saying that he had a friend of a friend, a woman who lived in Seattle, who had agreed to let him stay with her for a few days. We didn’t know he had been in touch with anyone but us. Immigration did release him when we furnished an address for Duncan.

Jonathan and I were elated at our success, and we drove down together to the Kent jail to visit other detainees, and to pick up Duncan and bring him back to Seattle. Duncan was a fair, slight man with reddish hair, in his mid-30s, and handsome. He sat in the back seat of my car as we drove to Seattle, but didn’t talk much. He didn’t seem to be happy about the release, but I brushed that aside. Of course, everyone is happy to be out of detention. But all the same, I felt a chill coming from him. We dropped him off at a house where a middle-aged, kind-faced woman greeted him, and we added Duncan McDonald to our list of clients served. That was that.

Except that there’s more. A few years later, when I was back in Seattle for six months between overseas assignments and working on contract for an immigration law firm, I saw Jonathan again at an immigration conference. “Did you hear about Duncan McDonald?” he said to me, without waiting for opening pleasantries. He looked to be bursting with the news. I instantly remembered the name, of course. The case was one of our success stories, how we got Duncan sprung by our negotiation powers. I expected Jonathan to tell me that Duncan had fought extradition to the United Kingdom, and won somehow. It had to be big news, by the look of Jonathan.

“Guess where Duncan was born,” he said. “Ireland, Australia, Germany, France?” I said. “Maybe Holland or Belgium?” “Nope,” Jonathan said. “He was born in Indiana.” He paused to let that sink in. “But….” I said. “Yes,” Jonathan said, “Indiana. His name is Steve Richland.” I couldn’t get my mind around this news. “But why would he let himself be detained in Immigration detention for months? Why would he make up this elaborate story?” “Exactly,” Jonathan said, “he really enjoyed setting a trap and seeing us fall into it.”

Jonathan said that Duncan was arrested for residential burglary in Chicago for the first time when he was 25 after he cleaned out the possessions of a woman with whom he was staying; he served a few days in jail and was released. He did the same thing again in Minnesota, this time robbing another woman who had given him a place to stay. He robbed many more women he had charmed before he was arrested in Seattle on the traffic stop. By that time, he’d stolen enough passports and driver’s licenses to confuse his identity, and he’d managed to scar his fingertips enough to make it hard to take prints.

When he robbed the woman who had given him a place to stay in Seattle, she called the police, who found and arrested him, and he was sentenced and served time in Seattle, and then served prison time in two other states as well. When his public defenders tried to introduce evidence of his lack of mental competence to stand trial, citing the immigration detention story, Duncan refused to allow it; he insisted he was not ill, that he always knew what he was doing. And each time, the judge agreed: he seemed perfectly in charge of himself.

So in charge of himself that he spent nearly three months in immigration detention, in service of a story about fleeing from the British government. The pleasure he felt in fooling us must have been worth the stay. So much so that he was angry when he was released from detention. For years afterwards, whenever I saw Jonathan again, he’d greet me with “Hello. Duncan McDonald speaking,” in Duncan’s soft accent, and we’d laugh. The accent probably would never have fooled someone from the British Isles, and even his name, we would have known if we had investigated, is not an Irish Catholic name. But we were enthralled by the romance of the story, and our white knight role. Neither of us has ever had a client like Duncan again. But sometimes, when my clients’ stories are grim and I’m taking myself very seriously, I remember Duncan again, and laugh.

Representing Duncan McDonald: Part One

In 1999-2000 I was working a six-month stint as an attorney at Northwest Immigrant Rights Project in Seattle, filling in while the financially-struggling NWIRP sought funding for a permanent removal defense attorney position. I was waiting to go to El Salvador on a Fulbright fellowship to teach trial advocacy at the Jesuit university’s law school; the school term would start in six months. I had less than two years experience in removal defense, and I knew that I had no chance of adequately representing clients in complex removal cases without a mentor by my side. Removal defense is the most complex, intellectually challenging, rewarding, frustrating, and high stakes area of immigration law; throw in any criminal charges and prior removals, and it becomes an intricate puzzle that must be solved under pressure of court deadlines, imminent departure dates, and clients often in immigration detention.

Jonathan Moore was NWIRP’s long-time accredited representative (non attorneys who pass an exam administered by the Board of Immigration Appeals, and who work as attorneys for nonprofit organizations), and the most knowledgeable person in the Pacific Northwest in removal defense. He is a wiry man with shoulder-length graying hair, a uniform of t-shirts and jeans and sneakers (he put a suit jacket over this outfit when he had to go to court), a New York accent, and nervous energy. He is passionate about defending immigrants in an increasingly hostile immigration law environment, and has a grasp of case and statutory law that is unparalleled. He also had time to answer my questions, despite having at least a hundred cases at various stages of preparation. We shared a tiny office, perhaps 24 square feet of crumbling plaster walls that leaked moisture, sloping wood floor covered with a thin film of stained, ancient shag carpet, and a warped wooden window that wouldn’t open and a view of a parking lot. We had word processing computers, no internet connection, and law books and updates that came by mail, for our research.

In my first days on the job, Jonathan gave me a stack of cases to review for basic facts and deadlines. We met by turning our office chairs to each other while I balanced the files on an unsteady typing table between us. I told him the facts of a case, and he told me next steps, and where to start research. He was seldom too busy, too tired, or too stressed-out to give me direction, but he was a fearsome sight when he read another bad judicial decision limiting immigrant rights. And those cases were coming down every day. Jonathan would read a new decision, then jump up from his desk with the decision in his hand, tear into the hallway from which the rest of the staff offices opened, then stomp up and down shaking the crumpled decision in each doorway, shouting “The f**ers! The absolute f**ers! You will not f**ing believe this!” When Jonathan tried to give a summary of the week’s legal decisions at our case meetings, he was often overcome by emotion and could not continue. Every one of the attorneys and legal workers in the organization understood. It was the worst time ever in US history to be an immigrant. Jonathan’s angst, his very public rage and despair, gave the rest of us permission, in a way that we understood but did not articulate, to let Jonathan bear our anger, so we didn’t have to put ourselves through the physical effects. Jonathan was expressing anger for all of us.

Congress had passed the Immigration Reform Act and Illegal Immigration Responsibility Act (IIRAIRA – pronounced eye-rah eye-rah) in April 1997, changing the immigration landscape dramatically. Among other provisions, it slapped “unlawful presence” on millions of intending immigrants, requiring that those who were in the country unlawfully must leave the country in order to request an immigrant visa; they could only return to the US by winning a waiver. The waiver is based on a showing of “extreme hardship” to a US citizen or permanent residence parent or spouse, and is denied more than half the time in Mexico, less often in other countries. IIRAIRA also imposed a “permanent bar” on those with unlawful presence in the US who had more than one illegal entry, changed the standard for winning a visa in deportation proceedings from “extreme hardship” to “exceptional and extremely unusual hardship” and limited such visas to 4,000 a year for the entire country, and barred those with certain types of crimes, including simple misdemeanors, from ever getting a visa.

It was a grim time, and requests for NWIRP’s services – disability waivers for citizenship applicants, asylum, family-based visas, visas for victims of domestic violence, suspension of deportation for Central Americans, and court representation for those detained in immigration detention who had a good chance of winning a visa – skyrocketed at same time as funding began to dry up. NWIRP, between executive directors and staff, was too busy with the flood of clients to work on fundraising. New callers were carefully screened to determine if they fit the criteria for representation and the financial guidelines, and many more than half of the callers had to be turned away or placed on long waiting lists.

One day in January, caller Duncan McDonald made his way through the phone screening. He was detained at the county jail in Kent, about 30 miles south of Seattle, not accused of a crime, but housed there with other immigrant detainees. In 2000, the new immigrant detention center in Tacoma that would house 1200 detainees by 2003 was not yet built, and detainees overflowed the old Immigration building near downtown Seattle. That building was never intended to be a detention center when it was built in the 1920s; it was an office building. It looked and felt like a surreal boarding school with barbed wire where detainees often slept on mattress in the hallways. Detainees would hang out the windows on the upper floor where they were housed, and call and wave to the people walking on the street below. It was pre-September 2001, and the building had relaxed vibe that is almost unimaginable today. Immigration detention looks and feels exactly like prison, now. In the late 1990s, the Immigration Service took to buying space in county jails to house the overflow detainees, where they lived side by side with criminal defendants, and under the same conditions.

Duncan called the main NWIRP phone number, and like all those detained, was connected to a screener at once, since we couldn’t call detainees in detention. Normally, the detainee would be told that a NWIRP paralegal or attorney would visit him the next time we had a scheduled visit to the Kent Jail, and the detainee’s name and basic intake information would go onto the detention visit list. That is when the staff would make the decision about if we would represent, and at what stage of the proceedings, or if the client would be referred to a pro bono attorney, or a list of private attorneys, or given information on representing himself. But whatever Duncan said, it must have been persuasive and urgent, since the screener forwarded his call to me. “He really needs to talk to an attorney right away,” our screener told me.

Duncan said that he was an Irish Catholic, from Northern Ireland, and had come to the US less than a year ago on a visa waiver (no visitor visa needed for nationals of certain countries) to escape retribution from the British government for his service as a young teenager for the Irish Republican Army, a guerrilla group opposed to British rule of Northern Ireland. He said he had refused to work for the IRA after he was 16, and had gone into hiding in the Republic of Ireland so that the IRA couldn’t find and punish him for leaving them. But the British government had him on a wanted list, and someone gave information on his whereabouts. So he went in a disguise to the airport in Belfast and flew to Boston, then rented a car and drove to Seattle where he had some cousins.

He didn’t have time to look for the cousins, since the Seattle police stopped him for speeding on a side street when he had just arrived in town. In the car, the police found three passports from three different countries – the UK, France, and Germany – in three different names and with his photo, and two different US driver’s licenses with different names and his photo. The police charged him with identity fraud, and jailed him at King County Jail in Seattle for a few weeks until Immigration put a detainer on him and transferred him to immigration detention. The county prosecutor didn’t want to prosecute, and Immigration didn’t know what to charge him with. Immigration would not release him until they knew he was. The cousins could not be found, Duncan said, and there was no one to bail him out. Immigration bail was set for $10,000.

Duncan was sure he could prove his identity and get out of detention if he had some help to contact some friends in Ireland who could get his birth certificate and other identity documents. He said he was afraid of asking the British Consulate to prove his identity since he was on a wanted list, and that he had all the passports and driver’s licenses in order to confuse his identity and throw the British government off his trail; he had ditched his own passport when he got to the US. He had already been in immigration detention for a month.

Duncan had a soft voice, a charming accent, and told his story well. I was riveted. I told Jonathan right away about the case and the need for delicacy; we could contact the Irish friends, get the correct identity documents, ask the judge to reduce bail, and get him out with few of our resources. Jonathan visited him a few days later; he too was eager to help, and we started calling and writing the Irish friends. But the phone numbers didn’t work and the letters went unanswered. We began taking phone calls every few days from Duncan. He always began, “Hello. Duncan McDonald speaking.” If Jonathan wasn’t available, Duncan would ask for me. Both of us enjoyed talking to Duncan; he had stories of being recruited at age 12 by IRA operatives who made him swear in a blood ceremony never to betray them, and who burned his fingerprints off with acid after he was caught once by the British, so they couldn’t identify him again. He gave us more names of people to contact in Ireland and Northern Ireland who could help us prove his identity but we couldn’t locate even one.

To be continued...

Justice Detained: Harlingen, Texas 1988

Sometimes I think I must have imagined it, that it couldn't possibly be true. But it did happen, I did see it. An immigration judge foamed at the mouth while screaming at my client, a Nicaraguan asylum seeker, while he was testifying in court in Harlingen, Texas in January 1988. It was a riveting sight, and I had to blink to make sure of what I was seeing. I’d never seen anyone foam at the mouth before, and haven’t since. It wasn’t just spittle flying out of his mouth as he screamed; foam formed in globs at the corners of his mouth, visible at ten feet where I sat at the defense counsel table.

The judge sat in his black robe at a huge judicial desk elevated about five feet above the floor of the courtroom, and attorneys and defendants had to look up to him. My client was a very thin man dressed in government issue thin blue pants and t-shirt; I remember his thinness in particular because the judge made him pull up his t-shirt to prove that he had scars from the beatings he said that government soldiers had given him in Nicaragua. The man’s ribs stood out starkly over his nonexistent belly. He was sweating, and I watched a trickle of sweat run down the middle of his back along his protruding vertebrae as he stood with the t-shirt pulled over his head.

The judge said he couldn’t see scars, peering down over the edge of his great desk. Only an eagle could have done so from the height at which he was sitting. The judge didn’t wait to sit back down in his chair before he started screaming. He stood shouting about lying asylum seekers and how he hated (yes, hated) their brazen attempts to cheat the system and come to the US where they would freeload, lying about government persecution in their home countries. “Opportunist!” he screamed. My client and I were stunned into silence as we watched the judge. Apparently the INS attorney was used to this behavior, and didn’t look up from his files while the judge ranted.

Of course the judge denied asylum to my client on the basis of lack of credibility. I slunk out of the courtroom as if I had behaved badly, completely abashed by the ranting. I was a new attorney, new to asylum defense, and afraid of provoking the judge even more. He could have found that my client’s claim was frivolous, and that ruling would have made the appeal even harder. My client was taken back to the YMCA gym where INS had made an improvised immigration detention center in nearby Brownsville. His wife and three children were also detained there; they were on his asylum application. He looked confused and frightened. I had told him the night before trial that he had a good case.

There were many strange things that happened the month that I volunteered as an immigration attorney in south Texas, as the Immigration and Naturalization Service (INS) scrambled to manage the flood of Central American asylum seekers coming over the Texas border. The civil wars in El Salvador, Guatemala, and Nicaragua were at their heights in those last years of the 1980s, and all three governments and their guerrilla opponents massacred civilians with impunity. The US supported the murderous governments in El Salvador and Guatemala, and the “contras”, the guerrilla group in Nicaragua, with arms, ammunition, training, equipment, and advice on strategy. When civilians fled their homes to seek refuge in the US and Mexico, they often had vague stories of “men with arms” who had wiped out their villages seeking informers, or enemy supporters, or just for food and goods, or sometimes, in Guatemala, in genocidal rage. Most of the time, civilians didn’t know who was after them, or why. But that is precisely what US law requires them to know.

US asylum law provides that those fleeing persecution – defined as a threat to life or liberty – from their government or forces that the government cannot or will not control, may qualify for asylum (and then for legal residence) in the US if the persecution is on account of their race, nationality, political opinion, social group, or religion. These five categories are known as protected grounds. There must be a connection between the persecution and the protected ground, and the asylum seeker must show that connection. For instance, if you claim persecution from the government, you must prove why you were persecuted. Was it because of your religion? How do you know this? And how do you know that it was the government?

This seemingly simple statutory scheme has given rise to an ever more complex body of federal judicial and Board of Immigration Appeals interpretation in the last twenty-five years since asylum seekers from Central and South America, Asia, and Africa began to come in much greater numbers to the US. These decisions are precedential, meaning that they change the way in which the law is applied. Add to this judicial hidden or overt bias and active US support of the regimes from which asylum seekers claim refuge, and the asylum maze becomes a nightmare for almost all seekers. From 1985-1991, the years of most intense warfare against civilians in Guatemala, Nicaragua, and El Salvador, the US asylum grant rate for citizens of these countries averaged three percent.

INS was struggling to control the southern border; within a few months in 1986, the stream of Central Americans coming over the border ballooned from the normal dozen or so a month, to hundreds, and then thousands by 1987 as the civil wars took a turn towards efficient and country-wide massacres. INS responded with increased border patrols, and by setting up detention and “processing” centers along the border, in existing jails, empty school gymnasiums, old YMCA buildings, tents in fields fenced with barbed wire, and even an unused church camp. Immigration courtrooms were rented in county courthouses. Nonprofit social services groups began to set up camps alongside the detention centers to help get people on their way once they were released from detention. They offered bus tickets, food for the journey, and a place to stay for a few days while refugees decided on where to go and what to do. The border scene was chaotic, confusing, shifting, and high-stakes; in short, normal for a border in wartime.

In 1987, a group of volunteer immigration attorneys and legal workers began showing up to represent asylum seekers for free in Harlingen, Texas where one of the busiest immigration courts is located. Within a few months, they formed a nonprofit, ProBar, to raise money for an office and a couple of staffers, and the American Bar Association, among other donors, provided funds. The ABA helped ProBar recruit volunteer attorneys from throughout the US to come for weeks at a time to represent detainees in asylum hearings, and that is how I came to Harlingen. I volunteered for a month’s stint, arranged for a motel room, and flew to south Texas to join the ProBar founding attorney director, ProBar’s paralegal, and Mark Silverman, an experienced and passionate attorney from San Francisco who volunteered to guide the rest of us in preparing and presenting our cases in court.

During my month, there were from two to four volunteer attorneys at a time; we had little to no asylum law experience, and heavily depended on Mark’s advice and suggestions for strategies. We each represented an average of one client a day in immigration court, a pace that meant long hours meeting with clients, taking their declarations about why they fled their countries, writing briefs about their eligibility for asylum, preparing them for oral testimony, and presenting the case. We also wrote briefs for cases on appeals.

ProBar volunteers won only a handful of cases while I was there. We told each other that at least we were making good records for the appeals, to console each other. We worked as a team from about 8 a.m. to nearly 11 p.m. every day, in a cramped office with two desks, office supplies that we bought ourselves, and two word processing machines; in detention centers where our clients were afraid and confused; and in courtrooms where judges were often rude and even sometimes crazed. But I was not discouraged, or tired, or frustrated, and neither were my co-workers. It was one of the most exhilarating times of my life, like soldiers’ wartime experience of camaraderie.

I rented a car to get from my motel – a room inhabited by a large family of south Texas’s stinking bugs, which are harmless and not stinky unless you step on them -- on the outskirts of Harlingen to the two detention centers, located about 30 miles apart from each other, and about 15 miles from Harlingen where the courtrooms and ProBar offices were located. The roads were mostly empty, built straight through cotton fields, and I sped along them listening to the few cassette tapes I’d brought along. Paul Simon’s Graceland album is still linked in my mind to that south Texas landscape: flat, humid, empty of all but cotton fields, and a feeling of happiness and freedom. I was doing exactly what I went to law school to do. On Sundays, we often went to South Padre Island to lie on the beach for a few hours. On Saturday nights, we went to a bar where we turned up the jukebox and danced.

The detention center outside of Brownsville was a rented YMCA gym; it housed families and single women. Each family and each of the single women had a space on the floor of the gym marked off in red tape, with mattresses, and a supply of sheets and towels. Meals were served cafeteria style outside under tarps, with long lines of wooden picnic tables, and detainees were assigned a time for meals and for showers. They were free to go outside into the big fenced and barbwire-festooned yards surrounding the gym, at any time, with few guards. There was nothing to do there for the detainees except wait for their court hearings, meet with their attorneys, and share information with one another.

Most detainees learned early on that they could get released only if they had an address where they would be staying, and to which INS would send the notice of their next court hearing. Since almost no one had an address to give, there was a lively exchange of names and addresses among detainees. “Here’s my sister’s address and phone number. You can use it.” Sometimes detainees sold the address, but often my clients told me that the addresses were freely given among friends. The same sister might have six or seven people using her address; INS wouldn’t release a detainee if the sister said she didn’t know the person about whom they were calling, but might release detainees with children to a local refugee shelter upon request. It was rare that detainees stayed more than a few weeks at the center. The atmosphere was hopeful, as unlike an immigration detention center in 2012 as a family church camp is to a federal prison. Detainees said that they felt safe for the first time in a long time, and that they were grateful for the meals and the place to sleep.

The Port Isabel center for single men, the majority of those fleeing over the border, was a collection of big tents fenced with barbed wire; the courtroom located in one of the tents. It was nicknamed El Corralon – the big corral – for its rakish south Texas cowboy vibe. Guards were mostly friendly, recently hired to handle the influx, and stays were short – a few weeks at most for most detainees. It definitely did not have the atmosphere of the family church camp; perhaps more like a minimum security work camp for prisoners with misdemeanor time to work off. Today, with high prison-like security and conditions at detention centers, the Y turned detention center and El Corralon seem almost quaint, a marvel of gentleness.

And in the end, for many Central American refugees in the late 1980s, things turned out well. INS released most detainees before their court hearings, and the courts did not schedule the hearings for years. The Board of Immigration Appeals held off on deciding many of the appeals filed in these cases. American Baptist Church’s immigration unit sued the immigration court for its politically-motivated denials and won a settlement that gives a right for all Guatemalans, Salvadorans, and Nicaraguans who had applied for asylum in those years to apply for suspension of deportation and thus gain legal residence. Advocates pushed bills for temporary protected status for Salvadorans and Hondurans, and Congress designated nationals of those countries as protected from deportation. Many of those who fled war in those years are citizens and permanent residents today.

When I listen to Graceland again, it takes me back to south Texas and to our small band of advocates supported by a national network of smart and determined legal organization staffers. So much seemed possible then – that the US could really make good on its promises protect the victims of human rights violations, that a small group of advocates could change the world. One of my closest friends, a Guatemalan who came across the Rio Grande in 1989, won legal residence based on the ABC settlement. He’s married to a citizen and about to apply for citizenship himself. He has his own business now, and is a generous supporter of organizations to help people start their own small, environmentally sustainable farms. Without the national effort that mobilized advocates to fight for fair hearings, he would have been thrown back to Guatemala at the height of the war there. We as a country would have been the poorer without him and asylum seekers like him. And he owes his life to the passionate advocacy of attorneys who never knew him who didn’t give up.

Two Sisters: Fleeing Two Wars - Part One

Salvadoran sisters Zelda and Rosa del Carmen both fled their country’s wars; twenty years apart. The civil war of the 1980s propelled Zelda to the US in 1989, and the gang war against El Salvador’s people forced Rosa in 2009 to the US border. They both sought asylum in the US. Their reception as asylum seekers has parallels, and both those similarities and differences are instructive.

Rosa del Carmen Ayala and her two boys, Lucas, age 14, and Gilberto, age 12, from El Salvador, walked over the US border from Mexico one September morning in 2009, and were arrested immediately by US Customs and Border Patrol. They were detained at a checkpoint for about twelve hours while CBP checked their identity documents, and listened to their story about fleeing the murderous rage of a criminal gang in their neighborhood in San Salvador, El Salvador’s capital. Rosa, a small woman with curly black hair usually covered by a knitted cap, looks much younger than her 35 years, and is shy. She has a way of ducking her head and looking upward towards those with whom she is speaking, then ducking her head again. The effect is charming. Maybe that was part of the reason that she and the boys were released after only a few hours, and given a notice to appear in court to present their asylum claim.

Almost all asylum seekers who come over the Mexican border are detained for months in Immigration and Customs Enforcement detention centers in California, Arizona, and Texas. Asylum seekers comprise less than five percent of those who entered the US without documents at the Mexican border in the decade beginning with the Bush administration and continuing under the Obama administration. They come primarily from Central America, but there are some from Mexico, and a few from Africa, South America, and Asia. For Mexicans, the word on the streets of border towns is that they will be detained for more than six months, and then deported, if they try for asylum. Instead, Mexicans make no claim of persecution, and they get expedited deportation at the border when they are caught. Most will try to cross the border again the next day.

Rosa gave the ICE officer her sister Zelda’s address, in central Washington State, and the officer sent notice to the immigration court in Seattle to schedule the first hearing for asylum. Then Rosa and the boys boarded a bus for the trip from Texas to Seattle. Zelda told them to ask for a bus to Wenatchee when they got to Seattle; she would pick them up there. Zelda lived in a small town about 20 miles north of Wenatchee, in the Cascade Range of the Rocky Mountains, with her 20 year old son and his wife and new baby. Rosa had work within two days of her arrival at the fruit packing company where Zelda and her son and daughter in law worked; it was minimum wage and no benefits, but there were bonuses for packing faster. Experienced packers made up to fifty percent more than newcomers. The boys went to school in Wenatchee, taking the bus there and back every day. They were in English classes with other children of fruit packers. The house that Zelda rented was packed with six people and a baby, but Zelda was strapped financially, and Rosa would be helping with the rent.

Zelda is the oldest sibling in the Ayala family. When she was a young woman in the 1980s, her small town three hours from the capital was contested ground during El Salvador’s twelve- year civil war. The government suspected that the town was a guerrilla stronghold, supplying arms and supplies to rebels in the capital, and imposed martial law. Soldiers occupied houses at will, and behaved with impunity. Zelda was raped by several of the soldiers who had taken over her house. The army captain in command declared that Zelda was a guerrilla sympathizer, and when her husband protested, he was murdered, along with their two toddlers. Zelda fled on foot with a friend, Beatriz, whose husband and child had also been murdered; neither of them believed they had anything left to lose.

Very few women victims of war left El Salvador alone as they did; in almost all cases, women stayed in place, despite horrific violence. It was the young men who fled. But Zelda was unusual. She had gone to high school, the first and the last in her family to do so. She was a community educator in her neighborhood’s Christian base community, the movement of the Latin American Catholic Church that electrified poor communities throughout Central and South America with its “preferential option for the poor.” The communities met to study the Bible in the 1970s and 1980s and to seek to apply its message of radical social equality in their lives and in their communities. From the beginning in El Salvador, these groups were suspected by the government of socialist leanings, and their meetings were disrupted, their churches desecrated, and their members jailed. When the civil war broke out, the government engaged in wholesale roundup and murder of those involved with Christian base communities, so as to wipe out any possibility of support for the leftist guerrillas.

Zelda and Beatriz walked at night, moving north, hiding in the day, and made their way through Guatemala’s civil war, and then through Mexico on foot. They had no money, and lived on food and water they found and the kindness of strangers. It took them five months to walk to the US border in Brownsville, Texas. They were arrested and detained in an old YMCA gym that served as a stop-gap detention center for the unprecedented floods of Salvadorans, Guatemalans, and Nicaraguans fleeing their civil wars. The gym/detention center with its blankets and pillows scattered on the gym floor, its three meals a day, and its high roof were a comfort to the women, and they were reluctant to leave after their hearing with an immigration judge who accepted the applications for asylum that a volunteer legal worker from Houston had filled out for them. Zelda didn’t know what asylum was, but the volunteer, who didn’t speak Spanish well, said it was a way to stay in the US. The judge told them they were free to go until their next hearing on their claim for asylum. He said that the notice about the next hearing would be mailed to them at their addresses.

They had nowhere to go. They had given the immigration officer at the detention center the address of a person in Seattle who they didn’t know; it was a common practice in the makeshift detention centers in those years for refugees to help one another like this: if one had an address, he or she would share it with another, so that they could be released. Without an address to which the next hearing notice could be sent, the system would flounder, detainees would be stacked to the ceilings. If the immigration officers and judges knew that the addresses were shams, they didn’t let on.

Zelda and Beatriz walked the ten miles from the detention center to Brownsville, and found a refugee shelter where they were given a meal, $20 each, and two bus tickets. They chose Seattle since it was the only name of a city they knew, and rode in what seemed to them deep comfort for the six days it took to arrive at the Greyhound station in Seattle. They stayed in a downtown women’s shelter for a few days, long enough to hear about farm work in the Yakima Valley, picking apples, and got two more bus tickets to Yakima. It took less than a day for them to find a farm labor contractor and to start picking apples that September in 1989. They slept in a worker’s camp and used their daily pay to buy food from a woman who cooked for migrants.

Zelda didn’t hold out much hope that she would win asylum in the US. She had heard that a tiny percentage of Salvadorans fleeing the war since the early 1980s got asylum. But she wasn’t tempted to avoid the immigration court, either; she was determined to make her stand and speak out against what was happening there. So she wrote the court with her new address, a migrant workers’ program office in Sunnyside, outside of Yakima. She had asked one of the workers at the program office for a description of what asylum meant, and this is what he gave her:

Asylum is legal protection against deportation. It is the status sought by non-US citizens who enter the U.S., either legally or illegally, asking for refuge based on claims of persecution or fear of persecution in their home country.

In a couple of months, the apple picking season ended. Beatriz left the migrant camp and moved in with a labor contractor and his four children; she was to receive pay for taking care of the children and the house. The contractor offered to let Zelda sleep in the living room for rent, but Zelda declined. The camp was closing up for the winter, but she didn’t like the man; she suspected he would sleep with Beatriz and consider that it was payment enough for her labor. She heard that there was a company north of Yakima in the small town of Wenatchee that was looking for fruit packers to work through the winter. The company provided barrack housing to workers who needed it. She thought she’d work there until her asylum hearing. She wasn’t sure what would happen if she won asylum, but she imagined that her life would open up with possibilities, with perhaps even a chance at a good job as a social worker for migrants.

To be continued...

Mattress in the Courtroom: The Muddy Path to Court

On a fresh, cool early morning, we left the capital, Lusaka, in a big USAID SUV with a driver and the Mission’s democracy officer, a Zambian attorney, to see how the court system in a small town operates. As we drove away from the hotel, the government buildings with their tended grounds, the shopping mall, the big old trees and the neatly stucco-walled compounds of upper- and middle -class housing complexes gave way to dozens of one-story storefronts lining the road, with litter blowing on the bare packed red earth. There were no trees. Women with lengths of brightly-patterned cloth wrapped around them for skirts carried large flat round baskets of fruit or vegetables on their heads, and men pushed wooden gurneys loaded with enormous burlap bags of produce or grain. Along the railroad tracks, people spread cloths on the red muddy ground on which to display all kinds of goods: clothes, cell phones, shoes, bars of soap, CDs and CD players, coat hangers, baskets of straw and plastic containers. There were women cooking over open fires, offering hot food for sale.

In less than an hour, we came to Kafue (ka-few-ee), and turned off the main road where a white metal sign announced “Kafue Subordinate Court”. We drove, very slowly, over a deeply rutted road, and parked on marshy land in front of three small white stucco buildings – the courtroom, the jail, and the court offices. There were no other cars in sight. People walk here – the state of the roads demand it, among many other reasons.

We picked our way over the wet ground, stepping a small stream on the way to the court administration building, where the chief judge awaited us. His office held statute books from 1995; he had never received any supplements. When he needs to know if the law has changed in the last 14 years, he calls lawyer friends in Lusaka who can help him. His court mainly hears criminal cases, primarily rape and incest, with some robbery and theft.

Once a week, he hears civil cases: debts, inheritance, and defamation. He showed us the record of appeal from the local (customary law) court decision that he was deciding that day: it was handwritten by the local court judge and held that the divorced woman in the case could not share in the property from the marriage because she had not worked outside the home. It’s a wrong decision, the judge said; we had a Supreme Court case years ago that said women are entitled to half of all property acquired during the marriage, but the local court judges don’t know it. I try to train them, but there are so many other things to take care of. He had a kind face and a gentle manner; he was humble too, about his role deciding the fate of thousands of people every year. I would have wanted him to judge me, were I in the dock in Zambia.

After we met with the chief judge, we walked to another building, the courtroom, to see a trial in progress. There was a double-size foam mattress in the very middle of the courtroom, on the floor. It was covered with a tattered, torn, and very dirty sheet, and a big blue carpet was heaped on it. There were three prisoners in the dock, the judge at the bench, and a police prosecutor at the counsel table. There are no state prosecutors for local and subordinate courts, which hear at least 95% of the country’s criminal cases. People were seated on the benches for the public; we quietly walked in and took seats at the back. Of course, we stood out, and the whole room, including the judge, stopped and looked at us before the judge continued.

The accused, two women and a man, were charged with stealing the mattress, the carpet, and some documents from a house. The man was in jail, but the women were out on bail. There were no bailiffs in sight, no handcuffs, no shackles. The accused were not represented by counsel, which is the case in nearly all criminal cases here. The judge asked if the accused were ready to go forward in their own defense; no, the prisoner said; the case was continued until March 25. He’ll stay in jail for another week, until then.

There’s so many problems in administration of justice in Zambia that donors (or as we say, “international cooperation”) have stayed away in droves from it, mostly because the leaders themselves don’t seem to want change or think it’s possible. Everyone in the justice system here is aware of the grave deficiencies but throw up their hands about leading for change.

So I wasn’t prepared for this courtroom trial. I thought I’d see grave miscarriages of justice, and put one more stroke down in my notebook against Zambian judges and police, with notes about police brutality, forced confessions, overcrowded court systems, untrained and unprofessional judges, lengthy pre-trial detentions, unconscionable delays, and on and on. Yes, all that may be true, but I didn’t see it here. The continuance was for a short time; the proceedings were translated into the local language, Nanja; the judge read the accused their rights; and the evidence was hauled into court. There was no sense, at least to me, of us-versus-them, we the good people, you the despised prisoner. It did seem to be a judgment of peers, a gathering of the people. At least what I saw that day fits with the traditional goal of justice here – to restore harmonious relationships, not to break them beyond repair. After the judge left the courtroom, the prisoner did too. He walked on his own back to the jail, tailed by a policeman.