E-H-‘s case is “withholding only,” which as I learned means that she’s not eligible to apply for asylum because of a prior removal. That removal order was automatically reinstated when she entered the U.S. again in July 2014. Despite the pro bono project’s several attempts to gain her release on bond, so far two different IJs have determined that they lack jurisdiction to consider bond for E-H- because she wasn’t served with a Notice to Appear (NTA) following her most recent arrival. My education was just beginning.
At the end of that first week in San Antonio / Karnes, Christina Brown persuaded me to consider representing E-H- for her merits hearing at a date to be determined, hopefully by the end of February. A couple of days after arriving back in Boston I agreed to represent E-H-. Looking back on this, I really had no idea what was involved. Stephen Manning convinced pro bono project veteran and fellow Oregonian Philip Smith to mentor me. Other veterans such as Karin Tolgu, Dan Thomann, Shobhana Kasturi, Megan Boelstler have helped along the way as well. And then there’s Megan Kludt from Massachusetts who guided the preparation of the briefing package for the merits hearing, and did so much more.
We had our work cut out for us from the start. With no access to political asylum, a client who has a “withholding only” case is in a terrible legal posture. The gap between establishing a well-founded fear of persecution for an asylum case and proving that one’s life or freedom will be threatened if returned to one’s country of nationality is enormous. Add to that the logistics of representing a detained client in Karnes, TX, almost 1,800 miles from Boston, and a waning project presence in San Antonio, and matters were further complicated. One of the most frustrating things about contacting E-H- is that “residents” at Karnes cannot accept phone calls, not even collect calls. Instead, the attorney must call the facility and leave a call-back number for the resident, who will then return the call. If she doesn’t have any kind of calling card account set up, her attorney can set up an account so that the client can initiate calls. This arrangement sounds more like a jail or a prison than a family-friendly environment – especially when it can take hours before the client returns a call to her attorney, which makes one wonder how long it takes the facility personnel to pass along the message. And then there’s the issue of the calls being dropped. In fact, on the first occasion when the client tried to return my call, it took 6 attempts before the call actually went through and we could have a conversation. And each time the call was disconnected the client’s pre-paid account that I had set up for her was drained by a dollar. (How’s that for due process, Mr. Lucero?)
Beyond communication with her attorney, a detained client faces other strategic and logistical problems galore, some of which are severe. For example, how does she collect evidence to support her case? What about witnesses?
On my third visit to Karnes, on a Sunday just 16 days prior to E-H-‘s scheduled merits hearing, she handed me copies of the I-286 notices that were dated on March 10th regarding the children. I had filed my notice of appearance a week prior to March 10th, yet have yet to be served with a copy of the I-286 notices. (Hello, Mr. Lucero? Is this how ICE acquits its due process obligations in Karnes? Is your staff too preoccupied with providing a safe and sound environment for the residents to bother with silly legal requirements like proving notice to counsel?) In the designated interview area the guard – excuse me, the resident advisor – allowed E-H- to make copies of the I-286 notices, which I wanted to bring to my rental car in order to call Stephen M. to ask about the significance of these notices. But not so fast! The guard at the x-ray check-in station informed me that Karnes policy is that once an attorney leaves the facility he may not reenter on the same day. As she explained, “I could lose my job” if I let you leave to make a phone call and then re-admit you. Huh? Persuaded to call her boss, the guard agreed to do so and then reported that “just this one time” she would permit me to reenter after making the phone call. More hospitality from the family friendly folks at Karnes! We and our clients are one lucky bunch. (Not!)
The next day, client’s case was before IJ Martinez for the children’s bond hearing as well as our Motion to Reconsider the IJ’s dismissal of her own bond motion for lack of jurisdiction. The IJ was thoughtful and considerate, but not ready to make a decision until he had time to study our legal argument more thoroughly. (Our position: 8 CFR 1236.3(b)(2) gives the IJ the authority to consider mom’s release concurrent with the release of her child when there is no responsible adult to assume custody of the child upon the child’s release.) Observing that this legal theory is compelling and unique, the IJ reset the bond hearing for the following Monday. While the IJ deserves our respect for his thoughtful consideration, it meant one more week in detention for E-H- and her children. I don’t know which I found more painful: the reality of one more week in detention for E-H-, or the blank look on her face as she realized that this was the immediate outcome of the IJ’s decision on this day.
I don’t believe that volunteers invest in this pro bono work to carve out compelling and novel legal arguments; if this is what happens along the way, all the better. But what matters most is to help our clients to get out of detention as fast as possible so that they can have a swinging chance in their fight to stay in the United States. And while the IJ may ultimately order E-H-‘s release, on this day he did nothing to reset her inner pilot light. The blank look on her face will haunt me for who knows how long.
After the bond hearing I met with the ICE trial attorney who will handle the merits hearing for the government. Nice fellow, reasonable demeanor. He had told me 10 days earlier that he’d have the A-file available for our meeting, but no such luck. After skimming through our briefing package for 2 or 3 minutes he observed that client’s case is “just like all the other” asylum and withholding cases that he and his colleagues see day after day. In his opinion, the client essentially “has no case,” “there’s no persecution here,” “no particular social group – a family? Really?” Paraphrasing here: “Her abusive father is a jerk, a bad guy; but that doesn’t make your client a refugee. And the gang that committed all manner of brutality on her and her family, why they’re just a bunch of criminals; but they’re not persecuting her.” There’s no doubt in my mind that this trial attorney will be looking for inconsistencies during the merits hearing; he said as much. It occurred to me that his search for inconsistencies will trump any genuine pursuit of justice by the government. That’s just the way it is.
Justice is a big part of why we volunteers do this work. In the end, it’s all about our clients and the efforts to ensure that they have a fair shot at making their cases, and that genuine justice will prevail. Until now I’ve never been involved in such a meaningful professional endeavor. Exhaustion has set in. There are other work obligations, like a couple of dozen H-1B cap cases that were sitting on a table in my office, shouting for attention last week. Meanwhile, the effort to help achieve justice for these women and children continues, as it must.
Written by Frank Johnson, AILA Member and Volunteer
If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at email@example.com – we could really use your help.
To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.