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.