We Built the Wall Read online

  When Yamil first got to Eloy, he knew what he was in for: six weeks earlier, his wife, Claudia, had been in the same place. I hear two versions of the story: one from Claudia in Kansas, where she returned after a judge released her while her asylum case was being decided, and Yamil’s version in the visiting room in Eloy. Each one shares details of their lives together, precious memories they cherish during these long months of separation.

  Claudia’s family moved to Durango from Tijuana when she was ten years old. They lived there for three years until her father was murdered, forcing the family to flee Mexico. Claudia, her three sisters, and her mother started their lives over in Wichita, Kansas. By a coincidence that some people might call destiny, Yamil, also from Durango, moved there too when he was nineteen after deciding to migrate north. Yamil and Claudia met at a dance in Wichita in September 1998. They got married four months later, and their son was born in 2000. Claudia started baking and selling cakes and volunteering at their son’s school, while Yamil worked as a painter and played soccer in a semi-professional league.

  The life they built together came crashing down in 2005. One day, as he was driving home, Yamil was pulled over for a minor traffic violation. When the police officer asked to see his identification, the authorities discovered that the document Yamil presented was false. Even though his son is a U.S. citizen, neither he nor Claudia had been able to legalize their status, and Yamil was deported. Then Claudia had to make a hard choice: stay in Wichita, in her home with her son, or go to Mexico so the three of them could be together. In 2006, she and Yamil Jr. went to join her husband in Torreón, Mexico, where his family was then living.

  The culture shock they had both experienced as arrivals to the United States took hold once again. Claudia and her husband tried to adapt to a way of life that was no longer theirs, while their son found himself in a completely unknown world. The boy started having problems in school, and was bullied for being an American. Claudia and Yamil could not find work, and the violence that roiled the country during Felipe Calderón’s six-year presidential term started flaring up in the area. Gun battles and killings became a part of everyday life: one day Claudia and Yamil Jr. saw two bodies hanging from a bridge. Then extortion became commonplace. And one day, it was their turn.

  “I will never forget it, it was January 26, 2012, my son’s birthday,” Claudia recalls angrily. She tells me the whole story over the phone. “We were in a very difficult financial situation. I was teaching classes at night at the university and Yamil ran a little hamburger place.” The family had recently purchased a used truck. That day two men approached the couple and insisted the truck had been reported stolen, and that they needed to confiscate it and take Yamil with them. A few hours later the family got a phone call demanding ransom for Yamil’s release. A cousin lent them the money, and he was set free. But a few weeks later, two other men pulled him over while he was driving and demanded money before they would let him go; then one day, armed gunmen took the truck.

  “After that, for three days, they would come by and check out my business,” Yamil tells me, his arms resting on the table in the visiting room at Eloy. We have been talking for a half hour, and this is the only point in the conversation where a shadow passes over his face. He doesn’t seem bitter, but this is clearly something he can’t forget. “I had to shut it down.”

  A few months later, the couple went to the municipal offices to file a complaint: in an extreme act of bullying, their son had been beaten up by six other boys, who called him “gringo” and “pocho.” As Yamil gave his testimony, he recognized one of the police officers. It was one of the men who had stolen his truck.

  In July 2013, Claudia and her son joined a group of young adults who had also grown up in the United States, returned to Mexico for one reason or another, and now wanted to go back to the country they considered theirs. They passed through the turnstile at the border crossing into the United States, and requested political asylum. A few weeks later, Yamil made the same trip with another group. Given that it is up to a judge’s discretion whether to release the asylum petitioner on their own recognizance or hold them in detention, that decision varies case by case. Claudia and their son were released, but Yamil was not. And even though he could voluntarily return to Mexico at any time, he chooses to stay in prison.

  Yamil worries about his case. Other detainees have been released on their own recognizance, but the lawyer handling his case is not optimistic, he tells me. Still, he tries not to despair. March 30 will be the first in a series of appearances before a judge. Claudia and his son will come to accompany him, he tells me with the same unguarded emotion he reveals whenever he talks about his family: the time when he and Claudia were dating and got caught in the rain; the time when the family traveled throughout the United States for Yamil’s soccer games. It’s only when he tells me about his last Christmas that a lump rises in his throat, and he can’t continue. Two seemingly endless minutes tick by.

  “When I talk with them, I know we’re doing the right thing,” he says. “My son says he misses me, and I tell him to stay strong. Now he’s playing soccer at school. They’re going to have a tournament, and he’s the captain of the team.” He glows with pride. “And I feel fine about Claudia. I sent her a picture of myself a little while ago, so she could see that I’m okay, I’m in good shape. So she’ll see I’m worth the wait,” he says with a playful laugh.

  When evening comes in this part of the Arizona desert, twilight paints the sky in brilliant oranges, magentas, and violets, warming the clouds. The light kisses the golden, arid land, in a gorgeous, wide-open panorama of light and freedom. But from the concrete buildings in Eloy, the detainees can only catch a glimpse of this spectacular sunset through the narrow windows facing west. In Eloy, the boundless freedom of the American Dream barely filters through the bars.

  For detainees in an immigration detention center, having a lawyer is critical. One of the system’s problems is the separation between the immigration courts and the criminal justice system. Immigration courts are administrative courts, so the legal and ethical system designed to guarantee a fair process to those accused of committing a crime does not apply—unless the individual with a case in immigration court is also facing criminal charges. People have fewer rights in the immigration detention system, and fewer resources to ensure that they can exercise the rights they do have. Immigrants have the right to be represented by an attorney, but they have no right to a lawyer at no cost, financed by the state. Many in immigration detention therefore do not know that they have a right to legal representation, or do not know how to get a lawyer, or cannot afford one. As a result, 84 percent of people in deportation proceedings have no attorney, and only 3 percent of those without representation win the right to stay in the country.2

  These myriad deficiencies facilitate abuse and prompt some immigrants to leave the country voluntarily rather than risking a deportation on their record, assuming that having a “clean” immigration record will allow them to enter the country legally in the future. (A person cannot reenter the United States for ten years after being deported.) Many detainees are unaware of legal mechanisms that would allow them to stay in the country. Some opt for voluntary removal just to escape a prolonged detention. And unlike people arrested under criminal charges, immigrants are rarely eligible to be released on bail.

  Deportation proceedings for those who reject voluntary removal are often lengthy, and while they wait for a final decision, immigrants remain locked in detention centers. An Amnesty International study found that although the average wait time was ten months, some people had waited as long as four years for a judge to issue a ruling.

  In January 2012, Maria Odom, then executive director of the Catholic Legal Immigration Network, was explaining in an interview why she had been working pro bono for years as an immigration attorney, providing representation for those unable to pay.

  “Through pro bono work, you get to know the most incredible people you c
ould ever meet,” she said. “And you’ll learn things you wouldn’t learn in your regular law practice. You grow, and you’ll work on the cases that will define you as a lawyer for the rest of your professional career.”

  With a tawny complexion, short dark-brown hair, warm eyes and an open smile, Maria talked enthusiastically about her day-to-day work at one of the most respected organizations protecting asylum seekers and refugees in the United States. At that moment Odom, originally from Puerto Rico, probably had no idea that eight months later, her career path would lead to the federal government. But that September, she was appointed Citizenship and Immigration Services Ombudsman for the U.S. Department of Homeland Security (DHS), responsible for improving the quality of service and advocating for the rights of those processed by that department, including refugees and asylum seekers.

  In her annual report presented in June 2015,3 Odom admitted that there was a substantial backlog in affirmative asylum cases pending before the U.S. Customs and Immigration Service (USCIS), which “has led to lengthy case processing times for tens of thousands of asylum seekers.” According to the report, the increase in applications based on credible, reasonable fears had compelled the department to redirect resources that had been previously earmarked for affirmative asylum cases; that, on top of the rising number of new cases, had caused the backlog. There were 9,274 affirmative asylum cases pending by the end of 2011. By the end of 2014, that number had ballooned to 73,103, an increase of 700 percent. In 2011, there were 11,337 cases based on credible, reasonable fear. By 2014, that number had quintupled, reaching 51,001. USCIS, the report explained, had taken measures to address the situation such as hiring additional personnel and adjusting scheduling priorities. But, Odom wrote, “the backlog continues to mount.”

  According to USCIS procedure, asylum officials rule on the declarations of credible and reasonable fear to determine if asylum applicants meet the requirements for having their case decided by an immigration judge. Since many of these applicants are in detention, the USCIS gives these cases priority. Up until December 26, 2014, the agency prioritized the most recent applications over the ones that had been waiting a long time, partly to discourage what they considered to be a “frivolous use” of this legal measure to get a work permit quickly.

  Between October 1, 2014, and March 5, 2015, of the approximately 600 requests for assistance4 related to refuge and asylum received by the office of the ombudsman, 68 percent involved applicants who had yet to be scheduled for their first interview in the asylum process. Twenty-five percent had completed their interviews but still had not received a final decision on their cases. Many applicants also expressed fear for the safety and well-being of family members outside the United States, whose only possibility of entering the United States depended on a successful outcome of their asylum petitions.

  Of the applicants who requested the ombudsman’s intervention in their cases, 26 percent had been waiting for two years for their cases to be resolved, 27 percent between eighteen months and two years, 29 percent between one year and eighteen months, and 16 percent between six months and a year. In only one of the cases requesting intervention had the applicant been waiting less than six months after initially applying for asylum.

  After receiving these complaints, Odom’s office contacted the authorities in charge of asylum at different points in the application process to evaluate possible measures to address pending interviews and to minimize the damaging effects of prolonged wait times. One recommendation that resulted was to hire more staff. USCIS went from 203 officers in 2013 to 350 in 2015, although there is a high turnover rate; the average asylum officer stays in the position for only fourteen months. New scheduling priorities were also established for interviews: rescheduled interviews were now first priority; applications from children were second priority; and all the other cases pending would be processed in the order they were received. Critics of these changes worried that they would attract false applications and that adjustments to the credible fear interview process could compromise the effectiveness and overall quality of the interviews.

  I asked Claudia if she had ever heard about the ombudsman for the immigrant detention center system, charged with ensuring that their rights were protected. Claudia had never heard the word “ombudsman.”

  7

  The Business of Locking Up Migrants

  “Hello. This is Delmy, at the Detention Center.”

  Delmy Calderón’s voice reaches me from Texas, where it must already feel like Christmas, just like it does here in California. I have been waiting for Delmy’s call all morning. But I had not expected the voice on the other end to sound so weak. Maybe it was because Delmy and nine other women detained with her were three days into a hunger strike. Or maybe it was because, after six months in detention, hopelessness was gaining ground.

  “I’m desperate. Sometimes I feel like I can’t take it anymore,” she tells me, her voice breaking, and I’m afraid she might hang up. The people detained at the center cannot accept telephone calls, so I had to leave her a message and deposit money in a Western Union account linked to the phone at the center so that Delmy could call me back. “I won’t leave here because it’s not safe to go back to my country, but I don’t know how much longer I can stand this.”

  Delmy, forty-two, is one of 800 migrants held at the immigration detention center in El Paso, officially known as a “processing center”: a complex of buildings located between a golf course and the airport. There, people without documents who have been arrested by immigration agents, or who have voluntarily surrendered in U.S. territory or at a border entry point and have applied for a humanitarian visa or political asylum, wait for a judge to decide their case and either let them go free or deport them back to their countries of origin. Most of them are from Mexico, but there are plenty of detainees from Central American countries, and even some from China, India, and Australia.

  Delmy is from El Salvador, where she lived with her four children and owned a restaurant. Although they were hardly wealthy, her family had been financially stable. Going to the United States had never even crossed her mind until July 2013, when members of the MS 18 gang demanded money for letting her run her business. Delmy told them she could not pay them the amount they asked for. The gang threatened to hurt her family. Just a week before, a neighbor had been murdered by the same gang.

  Delmy decided to close her restaurant and head north. After crossing the border into the United States, she was arrested by border patrol agents. Delmy explained her situation, requested asylum, and just a few days later was interviewed by a judge to establish that she had a “credible fear”—a real reason to fear for her life. The judge decided in her favor and assigned her a case number. Following asylum protocol, a legal process then began which could take as long as seven years, given the current backlog: in late 2016 there were over half a million asylum cases pending, and a total of 277 immigration judges in the entire country.

  While they wait for their cases to make their way to court, asylum applicants stay in the United States. If they do not have a criminal record and do not pose a threat to public safety, they are released under their own recognizance and given a temporary work permit. These applicants are called “low priority.” At the end of the process, if they are granted asylum, they are granted residency. If asylum is denied, they are returned to their home country.

  After passing her “credible fear” interview, Delmy was taken to the detention center in El Paso in September. Because of her low priority status, a judge should have granted her release within a matter of days. But the weeks passed, and she remained there. A week before Christmas, she decided to go on a hunger strike.

  Cases like Delmy’s are not unusual. A few days before I spoke with her on the phone, members of Dreamactivist, a national organization of undocumented youth who perform acts of civil disobedience to call for the passage of a law to legalize their status, went undercover in the El Paso detention center. Santiago García, a
member of the group, turned himself in to immigration agents on November 21 to report from the inside on what it’s like for people who spend weeks and months behind bars while waiting for a resolution to their case.

  In a phone conversation from inside the detention center, Santiago, then twenty-three, told me about some of the things he had seen. There were at least a hundred other cases like Delmy’s—people who had passed the credible fear test before a judge, but were still being held behind bars.

  “I’ve met people in here who should have been released months ago. They’ve been in here as long as nine months, locked up, and a lot of them don’t even know that legally they could have been let out by now,” Santiago told me. “These people didn’t come here to find the American dream, they came because they had to leave everything to save themselves from violence, or because of their sexual orientation. If they get deported, death is waiting for them in their country.”

  Dreamactivist had tried to call attention to the cases they found at the El Paso detention center in September, in an action called #Dream30. Thirty undocumented young people who had grown up in the United States and been deported back to Mexico took part in the action. They turned themselves in to immigration agents at the border crossing in Laredo, Texas, requested asylum, and were then transported to the detention center in El Paso. But something very unusual happened: all of the thirty Dreamactivist cases were resolved in less than six weeks.

  Dreamactivist says their members were treated differently from the rest because of political, economic, and even media-related factors. “We think in our case, because they know we were trying to organize people inside and explain their rights to them, and because they were getting calls from the media about our cases, they released us as soon as possible,” said Santiago, who was released less than two weeks after being detained, under the same low priority category as Delmy.