Collision With Justice

Arnoldo was 17 when he left his farm laborer parents and four younger brothers and sisters, and made his way from a tiny village in the Mexican state of Puebla to the US border. It was 1994, when getting over the border without arrest by the border patrol in Arizona was hard, and dangerous, but not next to impossible, as it later became. After three arrests and immediate returns to Mexico, he made it over, and took a bus to his uncle’s house in Los Angeles. He found work in restaurants, sent money back to his parents as he had promised to do, and met and married Maribel, who was also undocumented, in Los Angeles. They heard stories about how much easier it was to find work in Seattle, and took a bus north, with their two daughters, in 1999.

Arnoldo worked in restaurants as a prep cook; his English was never good enough to be a server, and his passion for cooking never strong enough to want to endure the pressure of being a chef. He and Maribel had four more children by 2005. Maribel took care of the children while Arnoldo worked day shift, and he took care of them while she worked the evening shift at a fish processing plant. Money was tight, their apartment small, and the six children had their needs. Sometimes Maribel and Arnoldo argued, but they never came to blows. They had converted to Mormonism shortly after coming to Seattle, and both of them found solace in the teachings, and an outlet in the parents’ groups they attended.

One day in 2010, when Arnoldo had just been fired, for the third time in three years for not having a valid work permit, he and Maribel shouted at each other about who was going to clean the apartment: Maribel who worked full-time at the plant, or Arnoldo, who was home with the children. The argument had its foundation in other issues, as well. Maribel couldn’t understand why he kept getting fired, since she herself had never been called to the plant office to prove her legal status. She suspected he wasn’t a good worker. She also resented that she was the primary cook and cleaner, even now when Arnoldo wasn’t working. Arnoldo knew that Maribel thought he was lazy, and that rankled, since he believed he was working as hard as he could to take care of the children. He pointed out to her that he was the one who spent time with the children on their homework, and that without him, they wouldn’t be doing as well as they were in school.

They shouted at each other, and the children cried. Their new neighbor, who heard everything through the thin apartment walls, called the police to report that there was a fight going on. When the police arrived, they arrested Arnoldo, even though Maribel and Arnoldo both tried to explain that Arnoldo had not been violent. Their lack of English skills had never hurt them so much before. They had no idea what would happen next, and the police could not explain it, either.

Arnoldo was booked into jail in downtown Seattle, and charged with domestic violence assault. He stayed three days before he met with the public defender assigned to his case. In those three days, other Spanish-speaking inmates advised him to plead guilty, since it was the only way to get out of jail quickly. Arnoldo asked his defense attorney about the process, but couldn’t understand him well. He thought the attorney said that the choice was to stay in jail and go to trial, which would take about six months, or plead guilty and get out in about a week. The attorney didn’t ask Arnoldo what had happened. He was in a hurry, since he had several other clients to see. If Arnoldo had been able to speak to his attorney, he would have told him that he hadn’t hit Maribel. Arnoldo would have called Maribel to come to court during his arraignment. She would have told the judge that it had been only an oral argument, and that she wasn’t afraid of Arnoldo. The case would have likely been dismissed.

Arnoldo went to his arraignment and pled guilty. He was sentenced to one year of jail, with 360 days suspended, and credit for the five days he had already been jailed. The judge ordered him to pay $2000 in court costs and fines. Then, just when jail staff were processing Arnoldo for release, Immgiration and Custom Enforcement (ICE) notified the jail that they had a hold on Arnoldo, and would take him within the next three days to immigration detention. Arnoldo was detained a month before friends at the family’s church could raise money to pay the immigration bond so Arnoldo could get out while awaiting his deportation proceedings.

Two years after his arrest, Arnoldo had his immigration court hearing to determine if he would be able to stay in the country. He had to prove three things: ten years of physical presence in the United States, good moral character, and exceptional and extremely unusual hardship to his children if he were to be deported, if they had to live without him in the US, or live with him in Mexico.

His immigration attorney had explained how hard it was to prove such a high standard – exceptional and extremely unusual hardship. She told him and Maribel that the “ordinary” hardship of separation from their father would not be enough. The “ordinary” hardship of living in Mexico without the same quality of life, without reading and writing Spanish, and in poverty would not be enough. There must be other reasons that the children would suffer, far beyond what other children would suffer if they had to go to Mexico in order to keep the family together.

There was a hope: Mario, their ten year old, was in special education classes for his delays in reading and in math. If Mario had to live in Mexico, he would not get a chance to have such help in the countryside where he would live with his parents. This just might win the case, the attorney told them, if Arnoldo could win on the character issue. The domestic violence conviction would weigh heavily against a finding that he had good character. Only ten percent of the people who asked for this relief from deportation got it, but in Arnoldo’s case, he had no choice. It was either try or get deported.

During the hearing, the government prosecutor, a young man, cross-examined Arnoldo about the domestic violence charge, When Arnoldo said he hadn’t hit Maribel, the prosecutor was disbelieving. “Why would you ever, ever plead guilty when you weren’t?” he asked Arnoldo. Arnoldo answered, “Everyone knows that if you plead guilty you get out of jail, and if you say you are innocent, it will take months to have a trial that you may lose. My family needed me.” The prosecutor was silent for a moment, then said, “No further questions.” The judge gave Arnoldo legal residence.

The conviction for domestic violence was the means for Arnoldo to get his residence. If he had not been arrested, he would not have been in immigration court where he could fight for his legal status. Sometimes he thought about bad leading to good, and felt lucky. But sometimes he thought it just as likely for good to lead to bad. On the whole, he thought it prudent to avoid any further contact with the legal system.

Debra Donatello: Walk on the Wild Side - Part Two

Continued from 3/30/12 post

Harry’s parents had returned to England when Harry was a young man; his father had died and now his mother, in Bristol, was ill and needed help. Harry and Debra went to Bristol together during Debra’s vacation from the office, and helped make arrangements for her move to a nursing home. When their plane landed in New York on their return, Harry presented his British passport, and was told by the immigration agent to step aside into a small windowless room. Debra tried to go in with him, but the agent wouldn’t let her. After a few hours, while Debra mostly stood where she could see the door, Harry was led out in handcuffs. She tried to run up to him, but the agents wouldn’t permit it. Harry shouted to her that he was being deported back to England, and he’d call her. Go home, he said.

Debra flew back to San Diego. Harry called to say she would have to go to London, where he’d make the arrangements for them to marry. Then she’d have to go back home, find an immigration lawyer, and start the process to bring him back to the US. Debra told her daughters what she was doing; they advised her not to go. But Harry has changed, Debra said. Her daughters said they didn’t believe it.

After the wedding in London, Debra paid a retainer for a San Diego lawyer to investigate Harry’s case. After reviewing Harry’s immigration records, the lawyer said that Harry’s case was impossible. He was barred from the US with no relief possible for twenty years, even if he was married to a US citizen. Harry had never become a permanent resident of the US; when the rest of his family got their residence cards, Harry had been in jail serving time for a string of thefts. When he got out, he had never bothered to see if he might be eligible for residence. He’d racked up a drug conviction record too, including one in the late 1990s for possession of cocaine, and two other theft convictions right before he met Debra. There was no hope of getting a waiver of Harry’s unlawful presence in the US, his crimes, and his deportation at the airport. The two 1997 theft convictions made him an “aggravated felon” in immigration law; he could not apply for any kind of visa to the US for twenty years. I don’t believe it’s impossible, Debra told the lawyer, politely. The lawyer just as politely suggested that she consult other attorneys, for a second opinion.

And so Debra did. She consulted with four more attorneys before she found one who agreed to take Harry’s case for a waiver of the deportation, the crimes, and the unlawful presence. The lawyer asked for $7000 for the case; Debra paid it. The lawyer developed a case for the waiver based on hardship to Debra if he could not return to the US, and filed it with the US Embassy in London. It would take about seven months to decide the waiver; Debra took leave from her job and spent the seven months in Bristol with Harry at his mother’s old house. When they got the denial, Harry and Debra were stunned. They hadn’t thought of the possibility of a denial. The lawyer said it was denied because Harry was ineligible for any relief because of his crimes; he was an aggravated felon. They could appeal the denial; it would cost them $5000 more and take two years.

But Debra couldn’t take any more time off work if she wanted to keep her job. She asked Harry if he would consider staying in England, and petitioning for her residence there. Are you kidding, he said. We have no money here, the house goes to my sister, I’m too old for a job, and our friends and our house are in the States. Besides, I don’t like it here; it’s too closed in and fussy. You are going to have to smuggle me in, over the Mexican border. But, Debra said, I know that is a felony; if I’m caught, you will be deported again and I will go to federal prison for five years. Debra knew this because she had already asked the attorney about this possibility. Do it, Harry said.

So that is what Debra did. She flew to San Diego, rented a car, and went to Tijuana. Harry flew to Tijuana and met Debra. He got into the trunk of the car, and she drove over the border. She wasn’t stopped, although she had a rough half hour waiting in line when she saw the cameras, sniffing dogs, and guards opening trunks. But somehow she wasn’t questioned or stopped. She didn’t stop the car until she got to San Diego, when it was dark, and she let Harry out of the trunk on a quiet side street. They went home, and that is where they are today, two years after Harry came back.

Harry mostly stays home while Debra works, and they stay close to home on the weekends too. Lately, Harry has been asking Debra to do all she can so that he can get his legal residence, get a driver’s license, and get social security payments for him. Debra once again is consulting attorneys. She is hopeful, even though several attorneys have already told her that it’s impossible.

Debra Donatello: Walk on the Wild Side - Part One

Michael found a new love when he and Debra had been married for seventeen years. He sold sports equipment to college teams on the east coast, and met Linda in Florida at the small college where she worked in purchasing. Debra found out about the affair when he brought Linda home to Pittsburgh to meet his brother. The brother’s wife told Debra, because she thought she ought to know, and Debra asked Michael to attend counseling with her, to save their marriage. She was confident that Michael would agree; they had too much riding on the marriage: two teen girls, a mortgaged house in a nice section of town, and a close family on both sides. Not to mention their Catholicism, so many years of shared history, and five years’ worth of “marriage enrichment” retreats put on by their church. Plus, Debra had never worked for pay, and had no idea of how to support herself and the girls. She and Michael had married immediately after high school.

Michael did not agree to counseling. In fact, he left Pittsburgh and his family, quit his job, and moved to Florida to live with Linda and her three children. The divorce was protracted, complicated by Michael’s inability to pay child support without a job. Debra sold the house, and lived with her parents for a time while she thought of what to do next. Her friend Karen, who had moved to San Diego in the early 1970s right after high school, told her that she could get a job in the swanky health club where Karen worked as a masseuse. There was an opening for front desk receptionist, and all that Debra needed was her good looks and smile to do the job. She could live with Karen until she found a place to live.

Debra surprised herself and her family, and moved to California. She had never been out of Pennsylvania in her life, except for a high school drama club trip to New York City. She liked the job, found an apartment, and put the girls in school. She got a certification as an aerobics instructor, and supplemented her income by teaching classes at the club after her reception shift ended. She was popular and good looking as an instructor, and when one of the men in her class asked her to sub for the host of an exercise show he produced on a cable TV station, she agreed. Within six months she was hosting the show; it was soon syndicated statewide, then nationally. Keeping Fit with Debra pioneered, in the late 1980s, the outdoor aerobics setting for TV. Debra did her weekly show on the beach at La Jolla, and sometimes took the show on the road to a mountain setting in Vail, Colorado; the Arizona desert at the base of the Sandia Mountains; to a Maui beach in Hawaii; and a ski resort in Utah.

She bought a house in an expensive section of San Diego, and dated the producer of her show. When the relationship ended by the mid-1990s, so did her show. She thought she could find another producer, but by then, aerobics were beginning to seem dated; yoga and dance exercise shows were proliferating, and there seemed to be no room for a 40-something to get started again on TV. She wrote an illustrated aerobic exercise book and made dozens of video tapes, but in 1997, internet sales were still in the future, and she did not find a publisher.

Her daughters were out on their own. Debra sold the big house, thought about and then decided against moving back to Pittsburgh, and got a job in the San Diego Park District as an administrator. It paid for her expenses, gave her health insurance and a pension, but seemed rather tame after her years in TV. She was wondering what her life was about when she met Harry, a neighbor in her apartment complex. Harry was nothing like either Michael or the TV producer. He owned and ran a bar near the navy shipyards which navy men frequented. He was ten years older than she, rode a motorcycle for sport, took her scuba diving on dates. He wore his dark hair tied back at the nape of his neck, spoke in slightly English accent, and swept Debra off her feet. He was gallant, generous, and possessive of Debra, which she thought was charming.

Harry had been divorced, and had grown children. He had immigrated with his parents to the US from England when he was 12, he said. He had spent years as a long-haul trucker before he had had enough, and bought the bar. Debra and Harry bought a condo together, and Debra started helping out at the bar after office hours. The first time Harry saw Debra talking and laughing with one of the bar patrons, he took her to the back room and hit her so hard across the mouth that one of her front teeth cracked in half. As he staunched the blood flow and applied an ice pack to her swelling face, he told her never to make him angry like that again.

Debra had her tooth capped, considered leaving Harry, and then decided against it when he was contrite. He hit her regularly, but only, as he insisted, after she did something to deserve it. Her daughters were horrified at Debra’s appearance and her newly-timid air. They suspected that Harry was abusing her, but the more they didn’t like Harry the more Debra defended him. She saw her daughters infrequently because it was too stressful for Harry, she said. One day, after two years together, Harry pushed Debra down the stairs of their house. Debra’s leg broke in two places, two of her ribs cracked, a concussion permanently affected her memory, and three more of her teeth fell out. Harry took her to the hospital and nursed her through her recovery. She told the suspicious social worker at the hospital that she had slipped down the stairs.

After that, Harry didn’t hit Debra anymore, or even threaten to do so. He took himself to counseling. Debra was happy; the memory of the beatings was vague. They sold the bar, Harry retired, and they moved to a small house in the suburbs with a garden where Debra played with her grandchildren after work, and Harry took care of the shopping, cooking, and cleaning. They rode Harry’s motorcycle along the coast on weekends, and developed a community of friends who played golf and line-danced at country-western bars.

To be continued...

Bev and Francisco

Beverly was three-times divorced, with two grown daughters and difficult teenage son. She had a college degree, a job in an accounting firm she had for the last twenty years, and a yen for some more excitement in her life. She was fifty, good-looking, and fit from years of line dancing at the country-music bars she favored on most weeknights. She had money in the bank, a house in a small town in western Washington state with a mortgage she had nearly paid off, and a deep sense that life had to hold more for her than this. She told her brother and her friends that she was either going to get a red convertible sports car, buy a horse farm (she had loved horses as a teen), or have a certifiable breakdown. None of the men she had met since her last divorce ten years ago held any interest for her. She abhorred church-going, didn’t like joining clubs, and was politely not interested when her son’s counselor suggested she look for deeper meaning by doing good works or developing her spiritual life. Her clearest virtue was her storytelling ability; she usually had a crowd around her at the bar, eager to hear what true story from her life she’d tell next. She could make nearly any story interesting and funny, even a trip to the dump.

Francisco was an undocumented immigrant from a rural area in the state of Guerrero in Mexico. He had not graduated from high school, didn’t speak English except for a few basic phrases, had never been married or had children, and worked seven days a week as an all-around handyman at a horse stables a few miles outside of town. He was thirty, sent most of the money he made home to his parents in Mexico, and went out rarely. Most restaurants and bars in town did not welcome Hispanic folk, and he didn’t have much interest in finding the places that did. After work, he carved sculptures of the animals he saw on rides on horse trails in the Olympic mountain range, and dreamed of returning to Mexico with enough money to buy a ranch of his own. He was not interested in marriage except as a distant possibility, when he had a place and a living well-established in Mexico. He didn’t drink or smoke, disliked talking about himself, and would have gone to a Catholic church if he had found one with a Spanish mass nearby.

In short, they had absolutely nothing in common. They met one night at the bar. Bev was there earlier than usual, having a quick BLT before the dance crowd arrived. It was Francisco’s five year anniversary of work at the horse stables, and Bob, his boss, insisted on taking him out for a drink. They settled on bar stools next to Bev; she struck up a conversation, as she would have with anyone sitting next to her. When Bob said that they worked at a stable, Bev had a flash of certainty: that was what was missing in her life – horses! She made arrangements to come to the stables for riding lessons, and asked specifically for Francisco to give her the lessons. She liked his calm demeanor. Bob said Francisco didn’t speak English; Bev said it was better that way, so he had to show her, instead of tell her.

One thing led to another, and Bev and Francisco fell in love. Both of them. Bev was surprised since she thought she was through with men. Her first three husbands, in order, had been violent, gay, and alcoholic. Francisco was surprised since he planned to return to Mexico before even thinking of a woman. She liked his seriousness and his calm way with horses and people. He liked her liveliness. At first, they didn’t talk of living together. Bev bought a horse farm, and Francisco quit his job at the stables to come to manage the farm. He learned more English, and Bev picked up a few words in Spanish. Gradually, Francisco moved in with Bev, and then, a year after they met, they married.

Five years later, the horse farm was prospering, with a full stable of horses boarding. Bev was getting ready to take early retirement from her firm since the farm was enough to support them and 18-year old Michael, her son, and send money to Francisco’s parents as well. Bev’s brother, sister, mother, and many friends thought of Francisco as the first good man in Bev’s life. Bev rode for exercise, and took care of the books and advertising for the business. Francisco did the rest. They went to the casino on Saturday nights to dance and gamble, and meet their friends. They talked of going to Mexico to visit Francisco’s family, someday when the immigration law would change and Francisco could get his papers. Michael grudgingly accepted Francisco’s presence in his life, and Francisco wisely did not try to direct Michael, or complain about his behavior. Michael had dropped out of high school in his sophomore year, didn’t work, smoked copious amounts of pot, slept through the days, did nothing to help with the house or farm, and kept getting arrested and convicted of malicious mischief for his behavior on the streets of their small town at night.

One day in early August, Francisco fell from the high deck of their house, where he had been painting, and gave himself a mild concussion. The skin on his scalp split open and blood poured from the wound. He staggered up the steps into the house, and then lurched towards the stairs to their upstairs bathroom so he could get towels to staunch the blood flow. Michael was standing in front of the staircase and didn’t move when Francisco tried to get by him. Francisco pushed Michael out of the way and continued up the stairs. Michael immediately called the police and reported domestic violence. When the police came, Michael reported that his stepfather had hit him; Francisco was upstairs trying to wash blood off his clothes when the police arrested him, charged him, and hauled him off to jail. Immigration Enforcement put a hold on him in jail, and even though Bev had Michael wrote a letter to the prosecutor retracting the false charge, Francisco was transported to Immigration detention and stayed there for a week before Bev could figure out how to get him bonded out.

Francisco was in deportation proceedings: he had to go to immigration court and fight for his ability to stay in the country, as long as he could show that Bev and Michael needed him. But not just needed him. The law held that her and Michael’s need to have Francisco in the country had to rise to the level of “exceptional and extremely unusual hardship.” Bev stayed in a panic the entire year it took for the case to go to court. She decided that if Francisco was deported, she would go with him, selling the farm, retiring, and taking their savings with them. Michael – she was done taking care of him. He would have to take care of himself.

Bev steeled herself for the trial, but she was so nervous that she barely slept for two weeks before it. She and Francisco had worked for months with Francisco’s attorney to prepare evidence and testimony, including psychological evaluations of Michael, her medical records, financial records, and many letters from family and friends, and Bev and Francisco’s oral testimony. At trial, with more than a dozen friends and family in the courtroom, Francisco testified first. Even in Spanish, he was not an articulate man; the attorney had practiced with Francisco twice, and he got through the ordeal, but it was clearly hard for the judge to get a sense of the extraordinary hardship it would be to Bev and Michael if Francisco weren’t allowed to stay in the US. Then it was Bev’s turn.

After responding to the attorney’s first few questions, Bev took flight with her narrative abilities and nothing could stop her. Usually, the judge or the prosecutor or both would have tried to rein the witness in, and insist that they answer only the question, specifically, that the attorney asked. But not this time. The entire courtroom was spellbound. Bev told the story in detail of her first three marriages, and of her life raising three children alone while trying to support them all. She talked of Michael’s problems, and how only with Francisco’s help could she try to give Michael the love and discipline he needed to get his life on track. She talked of her dream come true of the horse farm, and of her love for Francisco. She talked of their good times together, and how he changed her world from boredom and lack of purpose to meaning. She said she would follow him to Mexico if he were deported, and Michael would have to make his own way. When she was finished, there was silence. Then the judge, seasoned by more than 20 years on the bench, and a well-known curmudgeon, said with admiration in his voice, “Ma’am, that was quite clear. Thank you.” Francisco won his case, and got his lawful permanent residence.

Now Bev and Francisco are planning that trip to Mexico. They will be gone a month. Bev’s brother and his wife are taking care of the farm. Michael moved out to live with a friend, and it looks as though he may get a job in a restaurant kitchen. Bev is taking salsa dance lessons in preparation, although Francisco told her his parents live on a very small farm in a completely rural area where the only dancing is occasional folk dances at fairs. She doesn’t care, she said. She’s so happy she can dance anywhere, even in a corn field alone.

Two Sisters: Fleeing Two Wars - Part Three

Continued from 3/6/12 post.

It was impossible to get much of what the attorney wanted; Rosa’s brother said he would get the death certificate of their nephew, who had been murdered by the gang, but he was turned away at the national registry office; only the murdered boy’s mother or father could get the record, he learned. And both of them were dead as well. But Zelda told Rosa not to worry; she had been through this asylum system twenty years before, and most likely all would turn out okay, somehow.

But Rosa did worry. In the month before the final hearing, she and the boys went to Seattle twice to meet with the attorney to prepare their oral testimony, now that the case with its proof, written declarations of the facts, and the attorney’s legal argument had been filed with the court. Facts and dates, so many of them, kept slipping through her head, and she couldn’t remember any longer when the gang had first approached her boys to recruit them, and when and exactly where she had started hiding the boys. She dreamt, a few nights before the hearing, that she said the dates wrong to the judge, and he, a towering figure, pointed his finger at her. The judge’s finger kept getting longer and longer until it pierced her chest, and she woke sweating. Lucas was now 16 and Gilberto was 14; they were happier in school at last, after a rough first year of being taunted for not speaking English, for being newcomers, and for not knowing how to use a computer.

At the final hearing, she testified first, then the boys, and then the expert on gang violence in El Salvador that their attorney had found. The judge listened silently. The government attorney questioned all four of them, and asked over and over how they knew that the gang was targeting the boys any more than any other boy in El Salvador was targeted by the gangs. If every teen boy in El Salvador was a gang target for recruitment, then the judge would not award asylum to the family. They would have to prove that there was a characteristic of these particular boys that made them a target of the gang.

Rosa’s attorney had prepared them for these questions, and Rosa said, as she had said in her written declaration, that her boys were targeted specifically by the gang because of their extended family’s well-known opposition to gangs. She spoke of her nephew’s murder because he refused recruitment, and of her sister’s rape for refusing to let her child be recruited. She told the judge of two other nephews’ severe beatings by the gang, and of their fleeing the country. She said that her family, her seven brothers and sisters still in El Salvador, and their children, were marked by the gang for their opposition, and had all left the capital to live in rural areas. All her nephews had left the country to live in Mexico or the US, and the gang did not target her nieces. She told the judge that there was nowhere to hide if they returned to El Salvador, since the 18^th Street gang had a network throughout the country, and would find them and kill them for their trying to escape.

When she came down from the witness stand, Rosa was shaking. She sat with her head bowed while her boys testified about what had happened to them in El Salvador. The government attorney was seemed just as hard on the boys as he had been on Rosa, even though the attorney had told them he probably wouldn’t be, since they were so young. Then the expert on gangs in El Salvador testified by telephone; he said that it was true what Rosa had said of her experience, and that it was certain she and the boys would be marked for death if they returned.

The judge said that he would write his decision in the case and send it in about six weeks, and then the hearing was over. Rosa and the boys went back to Wenatchee. The attorney had said that it was nearly impossible to win these cases, since the law was so harsh. She had said, though, that it was important to do a good job on the case and present all the evidence, since the case would most likely have to be appealed. Only a well-prepared case would have a chance on appeal.

Five weeks later, the attorney called. The judge denied asylum to Rosa and the boys. The judge made many mistakes of law and when he denied the case, the attorney said. That means an appeal will have a strong basis. Did she want to appeal or return to El Salvador? If she appealed, and the appeal argument was good, she might have another year or even two before the decision. Rosa’s decision was instant: I want to appeal, she said. I can’t go back. I came here to protect my boys. They will be killed as soon as we return.

The attorney appealed the case in January 2012. Rosa asked her sister Zelda why things were so different for her, why Zelda got legal status based on a war, and why Rosa didn’t. “I think that everything changed in twenty years in this country,” Zelda said. “Back then, I think people here had more hope about life. Now, I don’t see that. I don’t think it’s to do with the truth. The truth is that the war El Salvador is in now is much worse than the war of the 1980s. We would never have thought that was possible. Thank God we can’t see ahead. It would be hard to go on.”

Two Sisters: Fleeing Two Wars - Part Two

Note: Part I was posted on November 4, 2011

Summary of Part I: Zelda Ayala fled El Salvador’s civil war in 1989 for the US border. She was placed in deportation proceedings in the Texas border town of Harlingen, and requested asylum. While her case was pending, she sought work in central Washington State picking apples, and then packing fruit at a plant near Wenatchee. Part II begins with her hiring at the packing plant.

The company barracks for women was cheerless, draughty, and dark; the company cafeteria served an unrelenting menu of bland, grayish food. Zelda lived in the barracks until January, when she and Emilio, a Mexican who worked as a supervisor at the packing company, rented an apartment together. Zelda liked Emilio well enough; he was serious, kind, and unflappable as a supervisor, and generous as a friend. She knew he was married, with a wife and children in Mexico, like many migrant men, but she also knew that she couldn’t afford an apartment on her pay, and she was bone-tired of being on the run and in temporary shelters for so long. She wanted to save some money, too. When the notice from the Seattle immigration court came, she planned to go to Seattle to live, and find a lawyer there. She heard that there were plenty of jobs available, if you were willing to work on the factory fish trawlers that shipped out from Seattle and stayed for two or three months at a time offshore in Dutch Harbor, Alaska.

Spring came, and still no notice from the court. She had written to the court again, with her new address, and sent it by certified mail, so she would be sure the court had it. Then summer and fall passed with no notice, except this: she was pregnant with Emilio’s child, due in April. Emilio was glad enough at the news, but Zelda was blindsided by grief for the first time since her husband and children were murdered more than a year ago; the pregnancy brought the memories of them, and their deaths, back to her in force. She gave birth to Evaristo, named after her father; she could hardly bear to look at the baby for the mixture of joy and fear she felt. Later, when it became clear that Evar, as everyone called him, was developmentally disabled and would need special education, it didn’t lessen her joy in her child.

Zelda’s court notice never came. No notices ever came for the vast majority of Salvadoran and Guatemalan asylum seekers who came to the US from the early 1980s to the early 1990s, when the wars there ended. Lawsuits by immigrant defense organizations against the US government for summarily denying Central American asylum applications without due process froze most of the cases before they even got in court. The litigation dragged on, seemingly hopeless of solution, until the Department of Justice suddenly settled the lawsuits in 1997 by giving many of the asylum seekers a chance to apply for permanent residence. Zelda applied for her residence in 1997, and got it. She sought out training as a community health organizer for state government outreach to Hispanic migrants, and started a new job as a de facto social worker, getting migrants and their children linked up with social and health services. She was popular with migrants for her problem-solving skills and her doggedness in getting benefits for them, and a number of infants born since 2000 in her district are named Zelda, in her honor.

Zelda stayed with Emilio for nearly eight years, but they had no more children together. Emilio went to Mexico every other year, for two months at a time, and fathered several more children with his wife. When he became a citizen, he decided to bring his wife and children to the US to live with him, and Zelda and Evar moved into a house Zelda bought outside of Wenatchee. With a sizeable down payment on the mortgage from Emilio and the monthly child support that he paid, she could afford to live alone. She wasn’t bitter about moving out, or when she saw Emilio around town with his family; she knew about his other family from the beginning, and she had taken a friendly interest in them. When Evar was 18 and Emilio’s child support obligation ended, Evar went to work packing fruit, and helped with expenses. He married a schoolmate, Brenda, who he knew from his special education classes, and they had a child, Olivia, before Evar was 20. Zelda was glad to have them live with her; she loved spending time with her grandchild.

Shortly after the baby’s birth, Zelda was laid off after twelve years with the state migrant health outreach program; the state slashed funding for all non-emergency health care in the wake of the 2008 recession. Zelda went back to work at the fruit packing company, at half her state salary, and with no health insurance or any other benefits. The lifting strained her back and the standing hurt her feet. At fifty-five, she could no longer keep up a pace sufficient to earn bonuses. She made $10 an hour, and came home too tired to cook and clean and wash. So when her sister Rosa moved in with her two boys, she welcomed the help at home, as well as Rosa’s pay.

One of the conditions of Rosa’s release by Immigration and Customs Enforcement was that she and the boys report monthly to ICE in Seattle, to confirm that they hadn’t fled the jurisdiction of the court. Each month for the two years it took for Rosa’s asylum case to be scheduled in court, Zelda and Rosa asked for the day off work, and Zelda drove her sister and nephews the six hours to Seattle for the check-in at 11 a.m. on the first Tuesday of every month. Zelda did research to find a Seattle immigration attorney who took Rosa’s case, and Rosa met with that attorney every month after her ICE check-in, to prepare her case. It took two years of the monthly meetings to get ready for trial, going over and over their stories of why they had fled El Salvador.

They had two preliminary court hearings before the final hearing to present their stories of why they should win asylum. The night before the first of the preliminary hearings, Gilberto carefully packed a suitcase and stowed it in the car trunk. He believed that the judge would order their deportation at that hearing, and they would be taken immediately away. He heard the attorney say that this hearing was just to tell the judge that they were seeking asylum, and to get a date by which to file the asylum application, but he didn’t really believe it. He tried to take the suitcase into the courtroom, but the guard wouldn’t allow it. Gilberto had to take it back to the car in the parking lot; when he left it in the car, he said goodbye, he thought for forever to his favorite new shoes.

The case preparation was wearying for them all. The attorney asked for proof for everything Rosa said about their lives in El Salvador: proof that the boys went to school where she said they did, proof that they lived in the neighborhood she claimed, death certificates to prove her sisters’ children had been murdered, and proof of where her brothers and sisters lived now. The attorney also went over and over the story of their lives in El Salvador, so that she could write down the details of how it happened that the 18^th Street gang took over the neighborhood, and threatened to kill her sons if they did not join the gang and start carrying out gang leader orders.

Nick in the Headlights: Part Three

It was already mid-November, and we would have to start working on Nick’s asylum claim to be ready to file the legal argument and supporting documents with the immigration court in January. But now everything had changed. We had a new reason to ask again for DHS to drop the charge against Nick: he had incipient mental illness and low intellectual functioning. Is this really the kind of person the US wants to deport? And could he even understand what it means to be in deportation proceedings? After all, he had been brought to the US as a three-year-old.

I asked for Sara and Nick’s help to prove that Nick had wide support from his community to stay here, and that he was receiving the mental health services he needed. With this, and the evidence of his diagnosis with incipient schizophrenia, we might be able to get the charges dismissed. It was a long shot, since the DHS attorney had already denied our request once. But the evidence of his illness was compelling. In a week, Sara gave me ten letters of support for Nick, and in another week, we had a report from his new mental health therapist.

The report from the therapist was grim. Nick had regular debilitating delusional episodes, and had suicidal thoughts. The therapist urged immediate psychiatric intervention, including medication for psychosis. I was stunned. Nick suicidal? But he was like a child! It was as if a nine year old was thinking of suicide. How did he even know about suicide? Sara said she was doing all she could to get Nick to a psychiatrist, but without health insurance, the waiting lists were long.

I filed the request immediately with DHS to withdraw the charge against Nick, with copies of the forensic diagnosis of Nick’s intellectual abilities and his delusional thinking, the therapist’s report, affidavits from his parents that they had no family in Mexico able to take Nick in, and an affidavit from Mexico’s former attorney general stating that Nick was very likely not to receive mental health care in Mexico and that he would be an easy prey for criminal gangs. The request included letters from Nick’s parents’ church community showing that many US citizens and permanent residents were standing in support of Nick and his family, and my argument that it would be far more conservative of DHS, court, and ICE resources to withdraw the charge against Nick than to face long court proceedings to determine if Nick were competent to stand trial.

I didn’t hold out much hope that we would get the charge dismissed, since the same DHS attorney who had denied my prior request to withdraw charges was still assigned to Nick’s case. But there was a possibility, particularly in light of new guidance from DHS headquarters, issued November 17 to all DHS attorneys, regarding “low priority” cases that DHS attorney should agree to dismiss. If the person in deportation proceedings had long residence in the US, had no immigration violations in the last five years, and had no serious criminal charges (driving drunk and domestic violence, among the most common crimes, were serious crimes), DHS should consider dismissing the case. The last factor listed in the guidance memo gave me the most hope: those in deportation proceedings with serious physical or mental illnesses should be considered for case dismissal. We were walking a fine line with Nick. How much weight would DHS give to Nick’s mental illness, balanced against his drunk driving charge?

The answer came two days after Christmas: no weight at all. The letter from the DHS attorney did not even mention Nick’s mental illness. The attorney cited Nick’s juvenile drunk driving charge as the reason for denying the request. There was no appeal. I hadn’t waited for the response anyway. Nick’s asylum case was almost ready to file. The asylum argument hit hard on persecution in Mexico of those with mental illness. The country’s documented human rights abuses of those confined to government mental institutions. We would complete the case and meet our filing deadline by January 31, 2012. In early February, I’d begin to prepare Nick for his testimony, and his parents to testify by telephone in court that Nick would not have anyone with whom he could live in Mexico. They could not risk testifying in person, since they were undocumented.

Meanwhile, although it was a long shot, I filed a motion to continue the asylum case with the immigration judge, citing new evidence of Nick’s mental illness and requesting time for the court to make a determination about Nick’s ability to understand the charges against him, and what deportation meant. I would not likely get word of the judge’s decision before the deadline to file the asylum case, so we had to file the case by the deadline. But if the judge granted the motion, we could win precious time, time for the DREAM Act to gain traction in Congress, maybe, or time for DHS to assign a new attorney to Nick’s case. A new attorney might be more approachable, and more open to dismissing the immigration charge against Nick.

In the second week of January, Sara called to ask me if I would talk to a group that she had heard about. It was a network of undocumented university students and their supporters in the US, called End Now. The network rallied support for passage of the DREAM Act, and in individual cases like Nick’s, they built community support that could change a government attorney’s mind. I said I would talk with the group, if Nick gave his okay. Nick did, and I spoke to a quietly determined young woman in Seattle about his case. Yes, she said, it sounds complicated, his case. But we’ve been successful in getting immigration charges dismissed in tough cases before.

To be continued…

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 Brian Collins: 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 Brian, 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 Brian.

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 Brian and bring him back to Seattle. Brian 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 Brian Collins 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 Brian Collins?” 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 Brian sprung by our negotiation powers. I expected Jonathan to tell me that Brian had fought extradition to the United Kingdom, and won somehow. It had to be big news, by the look of Jonathan.

“Guess where Brian 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 Brian 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, Brian 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. Brian Collins speaking,” in Brian'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 Brian again. But sometimes, when my clients’ stories are grim and I’m taking myself very seriously, I remember Brian again, and laugh.

Representing Brian Collins: 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 Brian Collins 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.

Brian 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 Brian 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.

Brian 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, Brian said, and there was no one to bail him out. Immigration bail was set for $10,000.

Brian 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.

Brian 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 Brian. He always began, “Hello. Brian Collins speaking.” If Jonathan wasn’t available, Brian would ask for me. Both of us enjoyed talking to Brian; 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.