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.