https://www.nybooks.com/articles/2019/10/10/inside-the-deportation-courts/
Inside The Deportation Courts
Madeleine Schwartz
October 10, 2019 Issue
Port Isabel Detention Center is at the end of a long road lined with bush and cotton fields in the Rio Grande Valley of southern Texas, ten miles from the Mexican border. Around 1,200 people detained by US Immigration and Customs Enforcement are held there at any given time. Some were apprehended at the border. Others were arrested after a traffic violation. In 2015 the US Civil Rights Commission found that the center violated the Fifth Amendment rights of migrants detained there because it did not offer due process protections, although the conditions resembled those of a jail. A few years ago, a former guard was sentenced for groping female detainees when they were alone in the infirmary. Reports of abusive behavior by guards are common, as is retaliation—last year, one woman was forced into solitary confinement and was "subject to starvation" for trying to tell a visiting official that she had been separated from her child. Still, one local immigration lawyer told me, it's not as bad as other places a detained migrant might end up. At least there's a library. At least there are medical services.
On Wednesday, August 7, buses sat in the parking lot ready to pick people up or drop them off; men walked through the courtyard of the facility in a straight line. A family in the waiting room sat by a machine called "GettingOut," through which relatives can send money and photographs to inmates, for a fee. A cart highlighted Port Isabel Detention Center's annual food drive, "Feds Feed Families." A green and cheerful holiday resort, with a golf course and peaceful bicyclists, was only a short car ride away.
All three flags in the parking lot were at half mast. Four days earlier, a white man had brought a gun to a Walmart in El Paso and killed twenty-two people. In a document he posted online, which the media were calling a manifesto, he decried "the Hispanic invasion of Texas." The Rio Grande Valley is over 90 percent Hispanic. Shoppers worried about copycats. A Walmart in Weslaco, about five miles north of the border, closed because of threats against it; a mother brought her thirteen-year-old into the police station the next day to confess. In Harlingen, a few miles east, police looked for a twenty-one-year-old who had threatened to shoot up the Walmart in that town. News reports talked of tense malls, despite the back-to-school tax breaks. Kids begged their parents not to buy groceries.
At Port Isabel, inmates in a small courtroom were struggling to understand how to put together an asylum claim. Many of them did not speak English. The court requires evidence—court documents, police reports—that proves that a migrant is endangered in his or her home country, and this evidence must be translated into English by a certified translator.
Immigrants have no right to appointed counsel, unlike American citizens; if they cannot access or afford their own lawyer, they must defend themselves. Only two of the defendants that day in the Port Isabel Detention Center had lawyers with them. All the defendants wore blue or orange suits labeled PIDC, and sat separated by gender: men on one row of wooden benches, women on the other. I sat in the back of the courtroom, where a guard made sure I could not talk to anyone.
One man, Mr. S, explained to the judge that he had escaped Nicaragua after participating in political marches. "The police beat me and abused me," Mr. S said.
The judge, Frank Pimentel, seemingly sticking to a script, asked if he was brought as a slave or sex trafficked.
Mr. S continued: "I just want to say: the national police came to my house and beat me."
The judge referred him to his application and said, "You don't have to tell me your story right now." The crowded daily docket did not provide time for any individual stories. Mr. S would have a chance to tell it if he went through the asylum hearing, at which point the court would decide the merits of his claim. Judge Pimentel denies nearly 90 percent of the asylum claims before him.
Another inmate was unable to complete his application, and assented to voluntary departure, in which an immigrant agrees to leave the country at his or her own expense. "You'll be on your way back to Mexico today," said the judge.
President Trump's transformation of immigration law is being executed at sixty-odd courts like Judge Pimentel's around the country, dedicated to processing migrants. The administration, guided by former attorney general Jeff Sessions and current attorney general William Barr, has taken legislation passed quietly over the years and used it to drive through large-scale changes to immigrant rights. Unlike the judges in federal or state courts, immigration judges like Judge Pimentel don't have judicial independence. They are part of the executive branch rather than the judicial branch. They can be fired or reassigned by the attorney general, and they face sanctions if they don't process cases rapidly.
The Trump administration has hired nearly two hundred new judges and plans to add at least a hundred more. Nearly half of sitting immigration judges were appointed by Trump, and about half of these new judges had previously been attorneys for ICE, according to the Associated Press.
Immigration judges are relatively new participants in the immigration process. The Immigration and Nationality Act of 1952 called for a hearing officer in immigration proceedings, a role that gradually became that of a judge. But immigration judges still act in large part as administrators—they were not required to wear robes until 1994.* They have long chafed at their lack of autonomy.
Trump's administration has only decreased immigration judges' ability to act independently. It has set a quota for cases—seven hundred a year—that is designed to increase the number of people removed from the United States. It has eliminated the ability of judges to administratively close cases and increased the power of the attorney general over individual cases. It has also pushed for the use of videoconferencing to get through a large backlog. This backlog is largely of its own making: ever since Sessions eliminated judges' power to close cases, all 350,000 cases that were previously administratively closed could be reopened.
Because immigration courts are under the control of the attorney general, the executive branch can issue new rules that send lawyers scrambling for new ways to represent their clients. Both Sessions and Barr have done this, limiting the meaning of asylum by redefining who counts as a legitimate victim. Immigrants who fear for their lives because of domestic violence find it much more difficult to obtain asylum, as do immigrants whose lives are threatened because their relatives were threatened or killed. One immigration official I talked to compared the attorney general's role to that of the appeals courts, whose decisions bind judges in lower courts. But appeals courts are meant to act independently of the executive branch, not to further its interests. Trump has often called the idea of asylum a "loophole" in the immigration system.
In a speech Sessions gave last year to what he called "the largest class of immigration judges in history," there was no talk of justice or mercy. Instead, he told his new employees:
Your job is to apply the law—even in tough cases. As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over…. The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let's deliver it for them.
Trump's attempts to close possible paths to immigration have meant ramping up activity in court. Some immigration judges operate out of courthouses, others work out of detention centers, and some have been transferred—both in person and virtually—to courts along the border. Over the course of a week in the Rio Grande Valley, I visited four courts: two immigration courts, one federal court, and new tents set up for immigration hearings. It was common to see people be forced to leave the US after hearings lasting minutes.
At Port Isabel, one of the defendants had been charged with credit card fraud and picked up by border patrol at a local jail. The credit card charge was dismissed, but it raised another matter: the government claimed that he entered the country illegally. The evidence for this was an I-213, a "Record of Deportable/Inadmissible Alien" filled out by border patrol. In a state or federal court, the agent who completed the form might be brought in for questioning. Here in immigration court, the form was evidence enough, as Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council, later explained to me. Judge Pimentel took the statement of illegal crossing as indisputable.
He told the man that the "charge of removability" was "sustained by clear and convincing evidence." He referred to the man's wife, a US citizen, who had come to the courtroom in elegant clothes and heels. "You've got a path to come back lawfully. Don't mess it up."
The man's lawyer, Cesar de Leon, later told me that with a record stating that his client had entered the country illegally, he would likely face an "inadmissibility bar." It would be impossible, that is to say, for him to return to his family in the United States.
Harlingen, Texas
There is no principle of innocent until proven guilty in immigration court. The primary allegation on the "notice to appear" that tells an immigrant he must go to court is that he is not an American citizen. The second allegation is that he is a citizen of another country. If a judge determines that the allegations are accurate, the immigrant can remain in the United States if there is a form of "relief," such as asylum, cancelation of removal, or adjustment of status. Voluntary departure is considered a form of relief. In the days I spent in immigration court, I often saw judges encourage defendants to depart "voluntarily."
On August 6, Judge Sean Clancy in the Harlingen court was getting to know a lawyer named Jennifer Mossack. The Harlingen court is located in a small building off a highway; it shares the space with the Social Security Office of Disability Adjudication and Review. Mossack had recently started work with the South Texas Pro Bono Asylum Representation Project, which advocates for children and adults in court. "I have an interest in last names," he told her. He asked if "Mossack" was Slovakian. Prussian, she told him. He asked for geographical precision. Where was her family from? "Around Koenigsberg? Or Gdansk?"
Mossack's client was there to voluntarily deport to Guatemala. She was fifteen years old and spoke only Kʼicheʼ, a Mayan language. She could not understand the Spanish-language interpreter that the court hires to talk with immigrants. The judge pressed a button: a service announced itself as "InterpreTalk" and warned that calls could be monitored or recorded. Kʼicheʼ interpreter #675003 was sworn into the record.
The girl agreed to leave the US before October 7. When that had been decided, the judge asked if her family would be ready for her return. He asked if she was eating enough. She assented to both and left, carrying a packed lunch from the shelter.
Five teenagers—four boys and one girl—arrived at the court wearing wrist bands that indicated where they were being detained by the United States. They were preparing to hear their rights from a judge, a practice usually done in groups for the sake of efficiency.
"I'm going to ask all of you to make a promise to tell the truth," said the judge. "There's a crime called perjury that pertains to breaking this promise after you've made it…. If you think you can't make this promise, you should probably tell me now."
They raised their hands, looking hopeful and sleepy.
"The nature of these proceedings is adversarial," said the judge. Later, he repeated, "As I said, these are adversarial proceedings."
He went over the documents necessary for changing addresses, which the kids would have to fill out if they were released to sponsors. All the forms were in English. The teenagers tried to follow along. One hung his head over the back of the bench, looking bored.
"I know that's a lot of information to consider at one time, but it's important information," Judge Clancy told them. He asked if they had any questions. When none did, they filed back to meet their wardens, who would take them back to the shelters in which they were detained. The judge added, "Have a good day, kids."
In another courtroom, Judge Melissa Joy Garcia was finishing up her morning docket with some deportations in absentia. If an immigrant should miss a court date because it was scheduled in the wrong part of the country, or because he did not inform the court of his new address, or because the address on file has some technical inaccuracy, he can be deported without a hearing.
This morning, the judge was going over six notices to appear in court sent to La Posada de Providencia, a nearby shelter. None of the immigrants had arrived in court, possibly because they had not received their notices to appear.
The judge listed the notice to appear as exhibit one. The notices that were then mailed and returned to sender became exhibit two. She noted into the record that a clerk had gone out to see if anyone was left in the waiting room and found no one. Immigration documents were exhibit three.
"The court has considered all the evidence at this time," said the judge. The evidence was "clear, unequivocal, and compelling." She stated into the record that the court would sign an order reflecting the removal.
"Good timing," said the attorney for the government.
"We did it before noon," said the judge.
McAllen, Texas
Who decides what happens to someone crossing the border? This is a question without an easy answer. A person might be held in ICE custody at a facility like Port Isabel. He or she might receive a notice to appear at a court like Harlingen. A third option is arrest: criminal proceedings that run parallel to the immigration court system. None of the lawyers I spoke to could point to any written rules dictating why one migrant might go through one system while another might go through another. It depends on the resources of the government and the whim of the officers.
The men and women arrested at the border are driven to court at dawn. They are led to the eighth floor of the Bentsen building, McAllen's federal courthouse. They are tried there as a group. Their hands are shackled, as are their feet.
The misdemeanor Section 1325 of Title 8 of the United States Code, "improper entry by alien"—criminalizing unauthorized entry into the US—has been on the books since 1929. It was conceived by Coleman Livingston Blease, a senator from South Carolina who spent much of his career in politics defending lynching and railing against racial intermingling. The statute was enforced in the 1930s against visiting Mexican workers who refused to pay a toll at ports of entry. It was then mostly ignored until 2005, when President George W. Bush launched an offense on migrants call Operation Streamline. After Sessions's push for "zero tolerance" of illegal entry, arrests under 1325 drastically increased, taking away resources from other areas of law enforcement such as drug smuggling and sex trafficking. This law and its counterpart, 1326 (which makes unauthorized reentry a crime), are currently the most prosecuted federal crimes in the United States, according to the American Immigration Council.
Under Bush and Obama, twenty to thirty immigrants a day would appear in these McAllen court hearings. Ninety percent of them had a criminal record. The others had crossed numerous times. At the height of zero tolerance last year, a typical Monday could see 250 people in court, many of whom had never crossed before. Zero tolerance is no longer government policy, but its effects linger at the border. The group of thirty people brought in to the Bentsen courtroom on August 8 was made up mostly of people who had never previously come to the United States.
The shades were closed in the courtroom. Lawyers from the public defender's office met with the immigrants. The sound of the shackles competed with the conversation. When they were done conferring, the marshals unshackled each right hand, so that the immigrants could take the oath.
Ricky Garza, a lawyer from the Texas Civil Rights Project (TCRP), a legal nonprofit with an office nearby, asked if any of the handcuffed adults had been separated from a child. Trump signed an order in 2018 stating that his administration would stop family separations, and a federal court now prohibits them as well, unless the parent has a criminal history or "communicable disease." But TCRP still sees up to ten cases of separation a week in McAllen. The government uses vague allegations of criminal history, such as gang affiliations that it points to but refuses to prove, to justify these separations, according to recent papers compiled by TCRP, the ACLU, and other groups. They argue that relatives crossing together are not a real family. "When I was down [at the border], I saw a forty-to-fifty-year-old man with about an eighteen-month-old girl, and you know, listen, I know children can be fussy…. I just looked at that situation right there and that is not his daughter," Republican Senator Ron Johnson recently asserted in a Senate hearing. He did not provide any evidence for this claim.
A young woman entered and sat in the back, wearing blue scrubs. Her husband, who I'll call Jorge, was in the front. His was the first case to be heard that week. They had been married for nine years and have a child who is two. She worked in the valley as a medical assistant; her husband had lived in the US since he was five. He had no family in Mexico.
The judge, magistrate Juan Alanis, asked each prisoner, "Did you have a chance to review the charges against you with an attorney this morning?"
"Si," they answered. "Yes," said the court interpreter.
"Did you have a chance to review with an attorney your right to remain silent and a right to trial?"
"Yes."
"After meeting with an attorney are you willing to give up these rights?"
"Yes."
"To the charge of illegal entry, sir, how do you plead, guilty or not guilty?"
"Guilty."
"Is it true you are a citizen of [another country]?"
"Yes."
"Is it also true that you entered the US on [a date a few days earlier]?"
"Yes."
"And you did so by rafting across the Rio Grande River?"
"Yes."
"When you crossed the river did you have permission or authorization to be here in the US?"
"No."
"Have any promises been made in exchange for your plea of guilty?"
"No."
"Has anyone in any way threatened, forced, or coerced you in exchange for pleading guilty?"
"No."
The interrogations continued this way, one after another, as the judge went through both rows of immigrants. The first-timers received only time served. The ones who had crossed several times received days to months, as a deterrent.
Only one man diverged from the script. Hunched and crying, he told the judge he'd been kidnapped. He was taken off a train in Mexico, where he hoped to live with his wife. He was brought to a ranch, where drunk men put him in a barrel. He said:
I was able to cut ties holding my feet and arms…. I managed to escape…. I ran through the dry brush…. I came across the river…. I ask you to be merciful with me. There were a lot of people in that house near the river that I was able to get away from. I would ask that you do what's possible to help the people left behind.
"That is one of the dangers of trying to come to the US, is unfortunately these things do happen," said the judge. He noted that the crime did not occur within the court's jurisdiction. The man was put at the end of the docket. Later, the judge decided that because the man had only come to the United States to escape his kidnappers, he should receive only the punishment of time served.
As for Jorge, he had prior deportations, and more than one DUI. The government asked for a sentence of 150 days. The lawyer interjected: He has a wife and child he supports. He's been on the right side of the law.
The judge asked Jorge if he wanted to speak on his own behalf.
"No," said Jorge.
Next to me, his wife shook her head.
The judge ordered 150 days in jail plus a special assessment of $10. After that, he would likely have to go through immigration proceedings. The judge cited Jorge's "extensive criminal history." His wife counted the months on her fingers. Jorge was escorted out by the court marshal. The marshal wore a plastic glove on the hand he used to lead away his new charge.
Brownsville, Texas
The newest courts in the Rio Grande Valley were still being built: they are tents, or as the government calls them, "soft-sided facilities." You can see them from the entrance to the Gateway Bridge that crosses the river from Brownsville, Texas, to Matamoros, Mexico, in a complex about as large as a city block. Walls of beige brick prevent passersby from looking inside. (The tent courts opened this week, and journalists and public observers have not been allowed inside.)
Brownsville is at the eastern point of the Texas–Mexico border. A section of the wall was built here in 2009, more than a mile north of the border at the Rio Grande, through an area of low ranch houses and a nature preserve. Driving from one point to the next, you cross one section of the wall and another, never sure which side you're on.
The new tents are part of the Remain in Mexico program, which the government has rolled out over the course of the last year. Remain in Mexico, or Migrant Protection Protocols (MPP), makes migrants with a court date wait on the other side of the border. Some 37,000 people are currently waiting in Mexico in cities like Ciudad Juarez, across from El Paso, or Tijuana, near San Diego, according to the International Organization for Migration. The immigrants waiting in Brownsville are being sent to Matamoros, in the state of Tamaulipas. The Department of Justice will see 720 cases a day in these tent courts using videoconferencing, according to The New York Times. Ken Cucinnelli, the acting director of the US Citizenship and Immigration Services, recently called the technology through which judges conduct hearings "very impressive."
In Mexico, some people sleep in tents in an encampment by the bridge. Others sleep on the ground. There had been portable toilets, several people told me, but Mexican officials took them away. When residents started going down to the river to bathe, a fence was built to keep them away. Migrants fear kidnapping and extortion; in Nuevo Laredo, about three hours northwest, criminals kidnapped Aarón Méndez, the head of a shelter, when he tried to protect his guests. MPP is currently being challenged in court, and it's not clear whether it will be upheld.
I crossed the border on the evening of August 10, following a group called Team Brownsville, local volunteers who make dinner and bring supplies like sanitary pads and clothes to people who have been forced to wait. Once a week, lawyers come too, led by local immigration lawyer Jodi Goodwin, to do client intakes and set up legal workshops. They do this work pro bono. It's difficult to get a lawyer as a migrant coming to the United States, and nearly impossible to get a lawyer while in Mexico. A recent survey places the number of immigrants in MPP who have representation at around 1.3 percent.
One of those migrants is a young woman I'll call Sandra. Sandra is currently seven months pregnant. In her home country, she worked in a beauty salon until she was threatened by a gang member she had identified to the police. She had arrived in Mexico a month and a half earlier. She got in line at the border to be allowed to request asylum—for which there is a strict daily quota—a process known as "metering."
On July 19, she crossed the bridge but was detained at the American border. A woman talked to her and was nice enough, she said. Then she sat in an office with a man who yelled. When she started to cry, he told her how happy he was not to have a family. He didn't want to live with people who would cry like her, he said. He told her how grateful he was that all he had were two little dogs. For two nights, she slept on the floor with other migrants. On her third day, she was returned to Matamoros.
She told me this while sitting on a street curb near the tents. Occasionally, she wiped her face with a towel. The temperature reached a high of 100 degrees that week. Her shoes did not have laces. They had been taken at the border.
At her court date she'll be asked to line up on the bridge leading into the United States. Court proceedings start at 8 AM. She must line up by 4 AM.
Sandra had not seen a doctor. Someone, a Mexican official, she thought, promised an ambulance, but it never came. Her court date was scheduled for the end of September. The baby was due at the beginning of October. "If you fail to arrive at the appropriate date and time," said her notice to appear, "you may be ordered removed in absentia." She hoped that court would come first.
—September 12, 2019
See Amit Jain, "Bureaucrats in Robes: Immigration 'Judges' and the Trappings of 'Courts'," Georgetown Immigration Law Review, Vol. 33, No. 2 (June 2019). ↩
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