Expediency rules in immigration court

IvestigateWestSeptember 9, 2012 

A narrow passageway separates the interior of the sprawling Northwest Detention Center in Tacoma from three federal courtrooms where the fate of the majority of men and women in the center will be decided. It is a courtroom of first appearances and, for many, last hopes.

The hallway, just off one they call the “gray mile,” is short by design. It expedites getting people from detention into the court system that, while sagging under sheer numbers of cases, is set up to speed them out of the country.

Speed matters from a cost-saving standpoint: Immigrants are detained at taxpayer expense.

The Tacoma court, operated by the U.S. Dept. of Justice’s Executive Office of Immigration Review, is one of 59 immigration courts nationwide that are handling record numbers of deportation cases. It has two full-time judges and last year handled a total of 11,249 hearings. Many detainees have multiple hearings before they are ordered deported, released on bond, or their cases dismissed.

On a typical morning, the docket already is packed with 40 cases. In Judge Theresa Scala’s courtroom, men – most appearing to be in their 20s and 30s – fill the half-dozen pew-like benches. Each man wears a uniform that signifies his criminal history or threat: Blue if no criminal history, or only minor charges or convictions; orange for mid-level offenses, such as drug-related crimes; red for those with assault charges or convictions. Women, who make up only about 10 percent of the detention center population, wear yellow. On this day, the courtroom is a sea of mostly navy blue.

The morning’s Master Calendar Hearings are the first step in determining whether a detainee meets the criteria for deportation. For straightforward cases, the time from detention to deportation can be as little as a few days. Government-chartered flights filled with deportees leave twice a week from Boeing Field for Mexico, the largest country of removal.

Last year, the court ordered 3,702 such removals. Only 74 detainees had their cases terminated, which means their cases were closed because the court found no grounds for deportation. Another 230 were granted some form of relief that allowed them to stay in the country legally.

For the rest, this courtroom is where they are ushered into the labyrinth of immigration law, a move that leaves many in a kind of limbo with their lives upended, families split apart, facing an uncertain future.

“It’s incredibly disruptive,” said Elizabeth Hawkins, an immigration attorney who handles some detainee cases. “People lose jobs, they can’t pay their bills, it puts enormous stress on relationships. I’ve seen marriages break up.”

At 8:30 a.m., Judge Scala takes the bench and calls the first case. She begins a litany of questions she has asked thousands of times before. A translator echoes them in Spanish.

The judge refers to a document in front of her.

“The government handed you some documents, including a record of deportable alien. ... is it OK with you, sir, if the court considers it in your case today?”

Jose Aguilar-Gomez – standing before her, buzz-cut and in blue – hesitates. Like most of the detainees in the room, he has no attorney to represent him.

Appearing in immigration court does not give them the right to a court-appointed one, and few among them can afford to pay their own counsel. Groups, such as the Northwest Immigrant Rights Project, provide some pro bono help. But last year, the group reviewed 4,842 cases and through a process of triage, was able to represent only 55. The rest rely on orientation sessions the group runs at the detention center to help equip detainees to represent themselves. Still, the process can be bewildering.

The other men in their seats listen intently. Some seem anxious. Some seem to try to take up as little space as possible, as though wanting to not be noticed. A few lean forward.

The judge presses on.

“This notice to appear says you are not a native and citizen of the United States. Is that true?”

“Yes,” he replies.

“Are you a native and citizen of Mexico?”

“Yes.”

The proceedings take on a rhythmic cadence, a call and response gathering momentum toward what, for many, is a foregone conclusion: a seat on a plane.

“Did you arrive at the United States at an unknown place on an unknown date?”

Again, he balks.

“I don’t remember.”

“When you arrived in the United States, sir, were you inspected and admitted or paroled by an immigration officer?” the judge asks.

“When I arrived, yes,” he responds.

“Someone gave you permission to legally enter the United States, sir?”

“No.”


The judge continues. “The government believes you are removable because you entered the United States illegally. Do you agree with that charge?”

The man’s shoulders slump.

“Yes,” he says.

“Based on your statement, sir, along with evidence submitted by the government, the court will find you are removable as charged and the government met its burden by clear and convincing evidence.”

ENFORCEMENT PRIORITIES

The scenario repeats over and over, throughout the morning. The cases are as similar and as different as fingerprints. Stepping before the judge on this particular day will be an auto mechanic, a man who worked in a nursery, a man whose job was picking clam meat in a seafood processing plant.

Some came legally and overstayed a student or tourist visa. Some came illegally, but have lived here long enough they may qualify to stay – if, for example, they are victims of a crime and have lived here for three years. Some came as children. Some have children, born here, who are U.S. citizens, or parents, siblings and other relatives who have obtained legal status. Some of them have jobs and businesses. They came to the U.S. to visit ailing relatives, or for love, or opportunity.

They wound up in immigration court because they got caught. Their offenses range from infractions as minor as driving without a license to more serious ones, including driving under the influence, theft and assault.

About 90 percent of cases funneling through the Tacoma court originated in local jails and prisons, part of a stepped-up emphasis on deporting criminals who are a threat to public safety or national security, according to U.S. Immigration and Customs Enforcement.

Many of those coming from the jails have not been convicted of a serious crime. Or they may not have been convicted at all.

“We had a guy whose student visa was no longer valid, who wound up in detention for jaywalking in Federal Way,” said Betsy Tao, directing attorney for the Northwest Immigrant Rights Project’s Tacoma office.

Advocates say anecdotal evidence abounds that local law enforcement officers “profile” individuals and take them to jail for offenses that most Americans would only be ticketed for, essentially guaranteeing they will be identified for possible deportation.

“We definitely see discriminatory policing,” said Jorge Baron, executive director of the Northwest Immigrant Rights Project. “A significant number of people end up (in detention) for very minor things.”

Detective Ed Troyer of the Pierce Co. Sheriff’s Dept. disputes this is happening.

“We do not look for people who are illegally here,” he said.

However, local law enforcement does cooperate with ICE.

ICE officers routinely canvass jails for potential illegal immigrants, finding them through interviews and transporting them to the detention center whether they’ve been charged with a crime, or the charges have been dropped.

When subjects are booked into the Pierce County Jail, for example, they are asked where they were born. Every day, a detective culls the list of new inmates for those who have indicated they are foreign-born, and sends that list to ICE, according to Troyer.

The same thing happens at jails throughout the state, including Seattle and King County, said Baron. Seattle and King County are the only two places in the state with so-called “sanctuary laws” that prevent local law enforcement from asking about someone’s immigration status if they are stopped by police. But ICE can still put a detainer on an inmate once he’s booked.

“Even though the SPD has a good policy, it gets undermined and almost destroyed when the jail is turning people over,” said Baron.

ICE sends an immigration officer to the Pierce County Jail daily. The officer asks for photos and reports on those they want to interview further. After ICE conducts a face-to-face interview, the officer may place a detainer on an inmate for transfer to the Northwest Detention Center.

Last year, the jail released 366 inmates to immigration custody, down from 398 in 2010, but up from 340 in 2009. Through the end of May of this year, the jail had released 133.

This kind of jail surveillance is part of the federal Criminal Alien Program, the goal of which is to identify and arrest illegal immigrants who are in local, state and federal jails and prisons.

The federal government reimburses states and local jurisdictions for the costs of incarcerating certain illegal immigrants. For the years 2009 through 2011, Pierce County received a total of $964,088 under the Bureau of Justice Assistance’s State Criminal Alien Assistance Program (SCAAP) funding.

Behind the scenes, ICE also keeps tabs on fingerprints that jails send to the Federal Bureau of Investigation. The jail gets an alert, known as a “blowback,” if ICE flags someone with an immigration issue, said Troyer. An immigration officer usually comes calling soon after.

That process is expected to speed up now that all jails in the state are required to participate in Secure Communities, a federal program that shares local law enforcement’s fingerprint data directly with immigration officials. Yakima, Franklin, Lewis, Benton, Grays Harbor and Pacific counties started the program last year. Pierce County, along with the rest of the counties in the state, began in April this year.  

The goal of Secure Communities is to help enforce immigration laws by identifying illegal immigrants the government considers a priority for removal, including criminals, those who pose a threat to public safety, and repeat immigration offenders.

“If there are fewer serious criminals on the streets whether they are here legally or illegally, the community at large benefits,” said Troyer.

Secure Communities provides a potential advantage to law enforcement, he said “It does provide more consequences for those who commit serious crimes in the community and happen to be illegally in the country.”

Critics of the program, however, worry Secure Communities will sweep more low-priority individuals – such as those without criminal records – into immigration proceedings.

Troyer says it doesn’t work that way.

“Secure Communities deals with people after they are in jail due to arrest,” he said “This is after we have determined that there is probable cause to believe they have committed a crime. So more people are not being booked into jail by PCSD as a result of the Secure Communities initiative.”

A 2011 study by the American Immigration Lawyers Association concluded that the majority of cases now flowing through the immigration court system are individuals who pose no risk to public safety.

“About 80 percent of people in immigration proceedings were charged under a basic immigration violation, not a criminal one,” said Hawkins. These violations include things like not appearing for a scheduled appointment with ICE, overstaying a tourist visa, or not staying in school.

“Illegal can mean different things,” said Bonnie Wasser, an immigration attorney in Seattle. “Like a student who went from carrying 12 credits to five because he got sick, and (as a result) got out of status. Or it can mean murder.”

Of the 396,006 people deported last year nationwide, 1,119 had homicide convictions.

SEEKING RELIEF

Judge Scala is not done yet with Aguilar-Gomez.

Once the court deems someone removable, more questions remain. The judge must assess whether the person might be eligible for asylum or another form of relief. Relief in this case means a reason that would allow them to avoid deportation.

“Sir, are you afraid to return to Mexico?” she says.

“If I have fear? Well, yes.”

Deportees to Mexico are flown to several different drop-off points. Among them is Matamoros in the state of Tamaulipas, where tensions between drug cartels run high. The U.S. state department has issued a travel warning for people crossing the border there, and imposed a strict curfew on government employees. The warning states that no highways running through Tamaulipas are considered safe from armed robbers and car-jackings.

But the bar for claiming asylum is also high. The judge cautions that to make a frivolous claim or to falsify evidence of credible fear can permanently bar someone from gaining legal status.

“Do you have fear you will be persecuted on account of your race, your religion, your nationality, your membership in a particular social group or your political opinion? Or do you fear torture if returned to Mexico? If you fear any of that, you have the opportunity to apply for protection in the United States and apply for asylum or relief under the Convention Against Torture. Would you like the opportunity to apply for that relief?”

“No,” Aguilar-Gomez replies.

“So you do not fear returning to Mexico?”

“No.”

There are other forms of relief as well. The simplest, and most common, is voluntary departure, which allows someone to leave the country at his own expense to avoid the legal taint of deportation. Those who leave voluntarily typically have between 60 and 120 days to depart and must provide proof of their departures to the U.S. consulate in their home countries. They can apply to come back legally without penalty.

If someone is offered voluntary departure, but then doesn’t leave and winds up back in immigration court, he forfeits any future chance to leave voluntarily. It’s a one-strike law.

The judge is careful to explain this, over and over. About half those appearing before her on this day have already used up their one chance.

Beyond voluntary departure, the various forms of relief get increasingly complex with various combinations of criteria based on how long people have been in the country, whether they entered legally or not, or now have legal status, the nature of any crimes committed, whether they have spouses, children or other relatives who are U.S. citizens or legal residents, what country they’re from, what year they came here, how many times they’ve come and gone, whether they’ve been found to be a person of “good moral character” and finally, whether their deportation would cause “exceptional and extremely unusual hardship” for those left behind.

The choices can be mind-boggling, the documentation required to prove their cases daunting, and the financial obstacles to moving forward – posting bond, affording an attorney, or even paying for a ticket home – seemingly insurmountable.

They can prove exhausting, both for the judges, and for those who come before them.

Scala tries to make her questions sound less rote, but as the morning wears on, the strain of repetition begins to show in her voice and manner. She shifts in her seat, occasionally dropping her chin in her hands, and closes her eyes when a detainee tries her patience by giving long, detailed answers to yes-or-no questions.

Her words are firm, her voice carefully neutral, but not unkind. She reminds the detainees of their right to appeal her decisions, even as she spells out the ways in which they are unlikely to prevail. She listens. Sometimes she tries to argue them into acting in their own best interest.

Before the morning is up, she will try to persuade a new father, who has lived here since he was a child, to fight for legal residency. He chooses to go. She will offer a student from Honduras the chance for voluntary departure, but faced with his inability to raise $400 for a one-way ticket back, she reluctantly deports him. She offers to set a bond reduction hearing for a man so he can get out to gather the documents he needs to proceed with a longstanding case. In frustration, he says it will make no difference, and tells her she might as well deport him.

FINAL ORDER

For Aguilar Gomez, there are no such options. He crossed illegally and has been in the country for nine years, not long enough to apply for cancellation of his order of removal. He has no relatives here with legal status who might petition for him to stay. He has a domestic violence charge on his record. He doesn’t meet the standards to qualify for asylum. And he’s already been offered a chance for voluntary return during a previous interaction with immigration.

Scala informs him she is signing his removal order that day and that if he is caught crossing without permission again, he could go to prison for up to 20 years.

“Do you accept this is a final decision, sir, and waive your right to appeal?”

“So I’m going to leave today?”

Aguilar-Gomez’ voice sounds more resigned than uncertain.

The judge explains there are travel documents to secure, details still to be worked out.

The average length of stay at the Northwest Detention Center is about 38 days, according to statistics provided by ICE.

Scala gives Aguilar-Gomez a last chance.

“If you disagree with this decision – it is your right to appeal if that’s what you’d like to do.”

“No – what I want is to leave to Mexico.”

The hearing took 15 minutes.

Reporter Lewis Kamb contributed to this story.

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