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.
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