One does not simply walk into an immigration detention facility. There’s a lot of waiting. Whispered phone calls, flipping of binder pages, quizzical looks when you—again—repeat your position and purpose: representing Pacific Standard, here to watch the EOIR’s court proceedings.
Whether the migrants have crossed illegally or face deportation because of illegal activity in the United States, they must trudge through a judicial process overseen by the Executive Office for Immigration Review. By all accounts, the recent influx of migrants across the Mexican border—about 414,00 last year, a 14-percent increase from the year before, and a number that’s expected to be surpassed this year—has put an unprecedented strain on the EOIR.
By the end of 2013, “there were 350,330 cases pending at the immigration courts, marking an increase of 22,901 cases pending above those at the end” of the previous year, according to material EOIR officials provided me. As for this year, Time magazine recently reported that “at the end of June, the number of cases pending in U.S. immigration courts had climbed to a record high of 375,503.”
Think of it: 375,503 cases. Almost the entire population of Cleveland. And that was four months ago. Plenty of stories talk about the migrants flooding across the open border, only to arrive dusty and tired, willing to surrender to authorities out of base desperation. But what of the other ones, safely across but stuck in the uncertainty of a physical and legal no man’s land?
It was a courtroom in miniature. Six, short pew benches of hard wood near the rear. On the right sat four men with fresh, neat haircuts, dressed in orange jumpsuits with blue slip-ons. On the left sat nine women in blue jumpsuits and orange crocs.
I had arrived at the Port Isabel Detention Center in Texas to see exactly that.
JUST A 30-MINUTE drive east of Port Isabel is South Padre Island, with its tropical vibe and laid-back locals. As a reminder of just how close the facility is to cheap paradise, palm trees line the quarter-mile stretch of road leading up to the tall gate topped with a barbed wire canopy. The land around the facility is all compact sand and beach shrubbery that merges abruptly into a shore of concrete and asphalt.
There are 59 immigration courts nationwide, 18 of which are housed inside detention facilities like Port Isabel, one of three such dual-use operations in Texas. (There are nine total immigration courts in the state.) While these detention center courts essentially serve as an annex of well-guarded fortifications, they are technically open to the public. Given the circumstances, there’s some cognitive dissonance in showing up at the front gate and asking to be allowed inside the prison campus, while offering the occasional reminder that it’s a constitutional right to do just that.
Trading my ID for an official pass, I followed instructions and headed directly to the court—a newish-looking building with a sleek, corporate-style glass front—itself a separate structure from the detention center proper. The guard manning the metal detector at the entrance clearly did not like my scent. What seemed to offend him was not the Old Spice but my simple curiosity. Few, if any, bystanders simply watch the proceedings at immigration hearings. He made it clear, in no uncertain terms, that he didn’t want me to proceed, asserting his authority in as many ways and directives as possible. No recording devices. No phones. Repeat, no recording devices.
It took some polite insisting on my part that I had every right to attend the hearings. Finally, it was determined that if, huff, I had to be let through, I’d also have to be escorted like a detainee past the windowless steel door, down to the courtroom itself. Mean Guard made this his duty, reminding me several times as we walked the institutionally clean hall that I’d have to leave the courtroom should there be sensitive testimony involving child abuse and violent crime. At the end of the hall, a guard sat at the desk, not looking terribly concerned. Mean Guard kept calling to her as we walked forward, asking repeatedly if my arrival was acceptable to court protocol.
I’M NOT SURE WHAT I expected, exactly. Perhaps a giant courtroom packed with road-dusted, coughing immigrants being paraded in chains toward a dais while a judge banged his gavel and said adios in an unending parade of malevolent deportation. The reality, well, it beamed in from somewhere else.
It was a courtroom in miniature. Six, short pew benches of hard wood near the rear. On the right sat four men with fresh, neat haircuts, dressed in orange jumpsuits with blue slip-ons. On the left sat nine women in blue jumpsuits and orange crocs.
Seen from the very back pew on the men’s side, the jumpsuited bodies created an oddly complimenting symmetry of color and order. Despite the hard and angled pews, the detainees barely moved at all—a fluorescent stillness that filled up an otherwise empty room.
Instead of a judge holding court, there was a large TV with a judge inside of it. A camera, like the one used for traffic, sat atop the monitor. Proxy adjudication.
“[Video teleconferencing] provides coverage to locations where EOIR does not have a physical presence and in areas where EOIR does have a physical presence,” an EOIR representative would tell me later. “[VTC] creates greater flexibility in docket management by enabling non-local judges to assist with hearing cases.”
The judge for the day was working out of the Harlingen court, about 40 minutes away. A border immigration lawyer says that “most of the [regular] hearings at the Harlingen immigration court have been suspended,” in lieu of dealing with the crisis at the detention centers. The clients who were going through the immigration process legally, or whose questionable status had taken months or years of litigation, had their cases effectively put on hold. The lawyer says most of his “regular” clients weren’t too terribly upset. Or, as another immigration attorney out of Houston cheerfully put it: “Justice delayed is just about the right amount of justice for immigration.”
The VTC is one of several efforts to help make the judicial deluge more manageable. Nationwide, the EOIR spokesman says there are 242 judges. With 375,503-plus cases pending, that’s about one judge for every 1,551 cases. As a result, EOIR is currently in the process of hiring an additional 32 judges, as well as establishing “an interim rule enabling us to designate or select up to 15 qualified personnel as to serve as temporary immigration judges.”
“Even though there’s the will on the part of attorneys to provide free legal services, the location of that detention facility makes it nearly impossible to get full representation.”
Occasionally, the teleconference’s audio would crack, the judge’s statements reduced to a few indefinite articles and the rising inflection of a question mark. The translator, sitting beside the judge in the TV set and speaking in the torqued-up speed of Spanish, lost whole sentences to technology.
From the monitor, the judge called a woman to the defense table. After she opted to represent herself, the judge proceeded with a scripted and mundane reading of the charges. About a month ago, she had allegedly entered the United States, in Brownsville, with no documentation and without going through inspection. In all but one of the cases that day, those were the charges.
“These proceedings are adversarial by nature,” went the spiel. The speech continued: You will have the right to present your own evidence and witnesses. You have a right to appeal the decision. If you wish to leave the United States voluntarily, you can ask the court how to do that. Any questions?
The woman had one.
“I would like to ask for my deportation,” she said. She wanted it ASAP. The judge had her cop to the charges and asked her what she wished to do. Return to Guatemala, she said.
“OK,” said the judge, “have a nice day.”
OF THE 13 DETAINEES, only three had lawyers—none present, each one patched in for the phone conference and each sounding very young and inexperienced, tripping over their words like a toddler learning to walk. “I indicated she was from Mexico?” squeaked one lawyer’s voice in the speakerbox. “Oh, yeah … that’s a mistake…. Someone put a typo…. Sorry judge.”
The proceedings for those without representation went much faster. A woman who’d been caught in Rio Grande City, Texas, on June 14 was making her second appearance before the court. First time, I tried to find an attorney but they were too much, she explained, requesting more time to find a lawyer “who will charge less.” The judge rescheduled her hearing for two weeks hence.
Lawyer or not, she still faced some pricey charges. Andrea Guttin, an associate attorney with Human Rights First who has seen the judicial detention process first-hand, says the national average of bond is $5,200. The cost often varies from court to court, judge to judge.
When I asked EOIR reps if there was common bond amount and how much of it actually gets paid back to the court, EOIR reps referred me to the Department of Homeland Security, which never responded. However, according to the Houston Chronicle, between 2006 and 2011 “illegal immigrants … paid $977 million in bail bonds” to ICE. As for the woman appearing before the TV screen, her bond was set at $7,500, the same as others at Port Isabel, though not as low as the $3,500 bond some received.
“Have a nice day,” said the judge.
ANOTHER WOMAN, WHO WAS apprehended in early July, had her bond set at $3,500. If it came to it, she’d prefer to be sent back to her home country, El Salvador. She, too, was representing herself and still trying to find a lawyer. My dad went to an attorney in Nebraska and they asked for a lot of money. It’s a problem most migrants are facing.
“If possible … I just want to get deported as soon as possible.”
“Anecdotal evidence and the things we’ve seen [suggest that] many, many of them are not going to have attorneys,” says Michael Soller of Public Counsel, a pro bono law firm that’s been dealing with migrant issues for years. According to the EOIR’s annual report, 71,653 of the 173,018 completed cases in 2013 had no legal representation. That number, 41 percent, however, is “a little misleading,” Guttin says.
“The way that EOIR counts who has representation is if you’re represented at even one stage of the process you’re counted as having representation throughout the process,” Guttin says. “Most often it’s just … the bond process. Even though there’s the will on the part of attorneys to provide free legal services, the location of that detention facility makes it nearly impossible to get full representation.”
Most of the lawyers I spoke with seem to agree that non-representation is the norm, despite being, as Soller says, “a make or break difference. … We’re thinking about how somebody can really get through the system…. Even to understand which door to walk through it can be very difficult.” In a 2001 study of immigration representation in New York state, the Cardoza Law Review found that the success rate of those in a detention facility with representation was 18 percent and the “combination of not having representation and being detained at the time of case completion drove the success rate down to just 3%”
BRENDA—WITH HER BRAIDS looped around the back of her head like a falling crown—had last appeared before a judge in mid-July. She was also lawyer-less. Like the others, she’d brought no documents with her to the defense stand. If she were to be sent back, she said she’d prefer it be her home country of El Salvador, but “I’m afraid to go back to it.” The judge asked if she’d like to file for asylum.
Yesbut does that mean I have to pay my $7,500 bond?
Yes, said the judge, that has nothing to do with seeking asylum.
Would it be possible to have my bond reduced?
“Everything is possible.”
Asylum falls into the “everything” category, but, for someone like Brenda, it’s still unlikely.
“Asylum is a very difficult, they’re very exacting requirements for an asylum case,” says William Holsten, executive director of the Human Rights Initiative of North Texas. “I’ve been practicing, doing pro bono legal work for asylum seekers for the last 20 years, and it is a very difficult area of law. And most lawyers that are not experienced in this area couldn’t manage to do it without training.”
The odds of asylum in general are slim. Data compiled by Syracuse University’s TRAC project shows that the asylum denial rate “has reached 50.2 percent during the first nine months” of 2014. That half of the asylum seekers are denied is due in part to new DHS guidelines, which raised the standards needed to qualify for pre-asylum approval—known as “credible fear proceeding.” Before the guidelines were changed in February, the number of migrants approved for credible fear proceedings had skyrocketed by 250 percent last year, according to the Los Angeles Times. On the bright side, although that is a five-year high, TRAC notes that “it is still much lower than ten years ago when almost two out of three (62.6%) individuals seeking asylum lost their cases.”
APART FROM THESE OCCASIONAL clarifications, the detainees didn’t really speak. Once, the bailiff at the edge of the courtroom sneezed. Salud, replied several tiny voices from the pews. For the most part, they sat in silence, moved to the defense table in silence, only muttering a soft gracias after their cases were heard.
“Good morning, your honor,” said Hector, politely, after he sat down. Except for the rimless glasses, he was dressed like the others. And, like most of the others, he was representing himself. Hector looked like a college student, not a day over 30. He’d been in the U.S. since 1981, a permanent resident, and spoke perfect English, telling the judge he’d prefer the proceedings to be conducted that way. So accustomed to speaking in Spanish, and thanks in part to teleconference’s spotty quality, the translator had to be told to stop translating. Hector sounded very intelligent. He’d been convicted of a serious cocaine charge—intent to distribute—in 2010.
“Any reason you should not be removed?” asked the judge.
“No sir,” said Hector. Then he continued, with a restrained pleading in his voice. “If possible … I just want to get deported as soon as possible.”
“I will sign the order today,” said the judge, “and tomorrow you shall be deported to Mexico.”
And with that case complete, it was time for lunch. Outside, on the prison campus, a new line of detainees in their bright colors left the detention facility, heading toward the courthouse next door. They shuffled along, two by two.
