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...