Representing himself, asylum seeker fights ICE in Tacoma immigration court — and wins

Dmytro Khrystych stepped alone into his immigration hearing at Tacoma’s Northwest Detention Center on Jun. 5, 2018.

Facing down an experienced immigration judge and a well-equipped prosecutor, Khrystych, with the help of an interpreter, proceeded to argue — without a lawyer — his own case for asylum.

A month later, the judge released his written ruling. Khrystych won.

It’s not unusual for people to represent themselves in immigration court. Winning is another matter.

About 85% of people in ICE detention centers do not receive legal representation and must argue their own cases, said Tim Warden-Hertz, Directing Attorney of Tacoma’s Northwest Immigrant Rights Project.

Among immigrants who must represent themselves, between 2 and 4 percent win their cases, Warden-Hertz said.

Data from New York, where several detention centers have started providing legal representation to every detainee, suggests many of these immigrants only lose their cases because they lack a lawyer. With a lawyer, nearly half win their cases.

“If 48% are able to have a successful outcome in their case with a lawyer and only 4% without,” Warden-Hertz said, “there’s then 44% of folks who the laws ought to have protected but who aren’t, because they don’t have the protection of a lawyer.”

Though Khrystych was glad about the positive decision, he said the weeks of waiting had made him “very anxious.”

‘Worst conditions you can imagine’

Originally from Ukraine, Khrystych, 34, now lives in Seattle with his wife and child. He owns his own construction machinery company, Dimex Machinery LLC.

Khrystych holds a degree in mechanical engineering from the National Transport University in Kiev, Ukraine. He speaks five languages: Ukranian, Polish and Russian with fluency and also knows German and English. He took classes in English at university.

A quest for asylum took Khrystych from Ukraine to Finland, Mexico, Arizona, California and eventually to the detention center on Tacoma’s Tideflats.

A dispute involving Interpol led Khrystych to leave Ukraine for Poland in 2010. Following the 2014 Ukranian Revolution, he believed conditions for him would have changed, and he returned to Ukraine. When he returned, Khrystych said he was arrested on fabricated charges.

“When I was arrested, I had no idea why,” he said.

Khrystych first tried to apply for asylum in Finland, but his case was denied. The best option he had left, he said, was to enter the United States through a port of entry at the Mexican border and apply for asylum here.

He and his pregnant wife presented themselves at the border in Tijuana, Mexico and were placed in border detention center, where they spent five days.

“(It was the) worst conditions you can imagine,” he said.

Forty to 50 people spent days and nights packed into an incredibly small room, Khrystych said.

ICE separated him and his wife. Though he asked repeatedly, no one put him in contact with her or told him where she was. They reunited only when he was released.

“No-one replied,” Khrystych said. “It was inhuman.”

Representatives of national ICE did not respond to requests from The News Tribune to detail their policies for conditions in detention centers at the border or about allowing married couples in detention to contact each other.

Legal representation

The Sixth Amendment guarantees everyone, both citizens and non-citizens, access to a lawyer in criminal cases.

Immigration hearings are classified as civil cases. Lawyers are not guaranteed in civil cases.

Warden-Hertz believes legal representation in immigration cases is essential for fair trials.

“It’s hard to see the statistics, (and) it’s hard to watch in court without feeling as though a lawyer is required,” he said.

Tanya Roman, public affairs officer for ICE in Pacific Northwest, said that “federal immigration law provides robust procedures for aliens to challenge their removal from the United States before an immigration judge.”

In June, Pierce County Council member Derek Young made a proposal to allocate $100,000 to support nonprofit organizations which supply legal defense to Pierce County immigrants.

“At its core for me this is about justice,” Young said.

On June 25, a majority of the council voted no.

Councilwoman Pam Roach opposed it. Roach said Pierce County does not allocate money to support legal defense funds in civil cases.

She added that Young’s proposal would not have excluded undocumented immigrants from receiving legal aid.

“If we’re going to do it at all, we’re going to do it for illegal aliens instead of citizens?” she said.

Young said that the proposal would not have helped undocumented immigrants.

“State law prohibits us from spending funds to help anyone here illegally,” he said.

Limited resources

Khrystych spent four months at the Northwest Detention Center.

To study for his hearing, he used a small law library located within the detention center, stocked with some law books and a few computers with law databases. None of the computers had internet access.

ICE’s Performance Based Detention Standards lay out the resources ICE believes each detention center in the country must have. Each center should have a law library with a few law books in English, and a Spanish-to-English law dictionary, among other materials.

ICE provides inadequate resources, Warden-Hertz said. Because computers don’t have internet access, immigrants in detention might end up using outdated material without knowing it.

“If you’re not online, you’re always going to be a bit behind,” Warden-Hertz said. “Just in the last six months there have been significant changes in the way courts have interpreted the law.”

ICE’s standards say “the list of the law library’s holdings shall be kept up to date, and shall include the date and content of the most recent updates of all legal materials available to detainees in print and electronic media.”

The Northwest Detention Center restricts the amount of time detainees can use the library, Warden-Hertz added.

ICE’s standards says detainees can use the library for at least five hours a week.

Khrystych did not employ an immigration lawyer to help with his case. He said the expense would have been too high.

Diego Aranda Teixera, an attorney who handles immigration cases, said fees for clients in detention generally run around $5,000 at his firm. Other firms often charge higher rates, he added.

Aranda added ICE has transferred his clients out of state without his knowledge, raising the cost for his firm.

“The administration is trying to basically price immigration lawyers out of business,” he said.

Roman said that “ICE is required to notify attorneys when a detainee is transferred.”

Immigrants in detention cannot hold regular jobs. Those in detention can work in the center, for the pay of $1 a day, Warden-Hertz said.

In 2017, Washington State’s attorney general sued the operator of the Northwest Detention Center for violating minimum wage laws, The News Tribune reported.

Warden-Hertz said the practice continues despite the lawsuit.

“If you’re making a dollar a day, you’re not affording a lawyer at that amount,” he said. “Especially when folks are the main income earner in their households, it’s often incredibly difficult for their families. On top of that, to afford an attorney is nearly impossible.”

Roman said that ICE cannot comment on ongoing litigation.

Immigrants in detention must fill out the paperwork for their applications for residency or asylum in English. The center does not provide a translator to assist them, Warden-Hertz said.

“ICE cannot assist individuals in any way, in the preparation of their cases before the immigraion court or in any applications for benefits before any other federal or state entities,” Roman wrote.

Both Aranda and Warden-Hertz emphasized the complexity of U.S. immigration law, which can prove difficult even for those with an education in law.

‘No one helps you over there’

During his hearing, Khrystych encountered some difficulties. His interpreter mistated some of his statements.

“Instead of persecution, the interpreter said harassment,” Khrystych said.

This distinction was especially important in Khrystych’s case, since he applied for asylum based on “persecution for a political opinion” in Ukraine.

“They’re just biased against immigrants,” he added, commenting on the aggressive behavior of the prosecutor.

While in the detention center and since his release, Khrystych has helped some other detainees inside the Northwest Detention Center. He helped translate an asylum case for a Russian detainee, using his proficiency in the language.

“No one helps you over there,” he said. “You are deprived of your liberty.”

This story was originally published July 25, 2019 at 6:00 AM.