Inside the Chaos of Immigration Court
Gabriel Thompson | Longreads | September 2020 | 6,849 words (24 minutes)
The Equitable Life Building, at 100 Montgomery Street, sits in the heart of San Francisco’s Financial District. Named after an insurance company, it was the first skyscraper built in the city after the Depression, a symbol of optimism rising 25 stories high with marble walls that sparkled in the sun. Today, it is home to all sorts of buzzy Bay Area companies, from Spruce Capital Partners (“investors and thought leaders in the Life Sciences industry”) to the OutCast Agency (“strategists and creatives” with “a hyper-growth mindset”). To get away from the hectic pace of investing, strategizing, and creating, tenants can burn off calories inside the building’s private gym or take their lunch break atop a luxurious rooftop deck.
The Equitable Life Building is also home to the San Francisco Immigration Court, though it’s easy to miss. On my first visit last winter, the only hint that a court lay within was the scores of families in the lobby, clutching summonses and looking confused. The court is above, occupying the fourth, eighth, and ninth floors. Up here, the elevators opened into a slightly off-kilter dimension: A security line snaked into a cramped waiting room, which led to a winding and windowless hallway, from which one entered identical windowless courtrooms. It was deeply disorienting. I often encountered people fumbling around in the hallway, not sure how the hell to get out.
Last December, on a Thursday afternoon, I met Francisco Ugarte, who manages the Immigration Defense Unit of the San Francisco Public Defender’s office. Ugarte, who is 48, was dressed in a dark gray suit, and had a neatly trimmed beard and a youthful face. Unlike most people I encountered, he appeared at ease and well rested. His client, an Iraqi man named Abbas, sat nearby, bouncing his right leg and radiating anxiety.
In San Francisco, where the battle for the soul of the court was raging before the pandemic, what first struck a visitor was the chaos.
The cases Ugarte takes tend to be complicated. Some of his clients have criminal records — often drug convictions — that can trigger deportation, and he maneuvers within the thickets of criminal and immigration law, a field known as “crimmigration.” Abbas, a broad-shouldered man with a prominent mole on his left cheek, had a case more complicated than most. Born in Baghdad, the 52-year-old had deserted the Army as a teenager, during the Iran-Iraq war. He was apprehended by Saddam’s security forces, tortured for six months, and forced to reenlist. In 1991, during the First Gulf War, he deserted again and went into hiding near his parents’ house in Baghdad. One night, U.S. missiles rocked the residential neighborhood. Abbas ran to the scene, where he discovered his childhood home had been leveled. He pulled his dead parents and siblings from the debris.
After the bombing, Abbas fled toward the southern city of Nasiriyah. Within sight of Iraqi and American soldiers, he ran forward waving a white T-shirt, but was shot by Iraqi soldiers in the neck and leg. He woke up two months later in a hospital in Saudi Arabia, and spent the next two years in a refugee camp. In 1993, he was granted refugee status and relocated to San Francisco, where he moved into a small apartment in the Tenderloin neighborhood. More than two decades later, Abbas would be diagnosed with PTSD and begin to receive treatment. At the time, he turned to drugs. After many legal twists, his habit had finally landed him here, seated next to his teary girlfriend. In 20 minutes, he would go in front of a judge and learn his fate.
“If he’s deported, he will be tortured and killed,” Ugarte said. He told me that he would normally have little doubt he would win Abbas’ case: He had amassed reams of evidence, from decades-old documents to extensive expert testimony. Still, Ugarte was nervous. “Things are different now,” Ugarte said. Under Trump, new rules have been put in place to make it more difficult to win asylum, while immigration courts — which operate largely outside of public view — have been packed with judges with prosecutorial backgrounds. In San Francisco, traditionally one of the most immigrant-friendly courts, 19 of the 26 current judges have been installed by the Trump administration. The new judges include nine former ICE attorneys, two former prosecutors, and a controversial former circuit court judge in Illinois, Nicholas Ford, with a history of having his cases reversed on appeal, including one in which he dismissed claims that a 15-year-old boy had confessed to a crime after being tortured by police.
“The federal administration is trying to weaponize the courts,” Ugarte told me. “It’s arbitrary and crushing. We can’t assume anything.”
* * *
For several weeks last winter, I spent nearly every weekday at San Francisco Immigration Court. I had visited immigration courts before, following particular cases, but this time I camped out all day — observing dozens of hearings, interviewing immigrants, taking notes on judges — seeking to understand how Trump’s relentless attacks on asylum seekers were unfolding in one of the nation’s busiest immigration courts.
I filed my story just before the first coronavirus cases began appearing in Washington and California. That was about eight months ago. It now feels, of course, like a period that belongs to another decade. COVID-19 has since swept through the country and upended immigration courts while presenting grave new threats to immigrants. In San Francisco and elsewhere, the courts initially remained open despite shelter-in-place orders, and the government even instructed, albeit briefly, that posters by the Centers for Disease Control and Prevention (CDC) on measures to prevent the spread of the virus be taken down inside.
Crowded courtrooms were eventually shut down and most have remained closed to date. But inside detention centers, where some immigrants are held as their cases proceed and where social distancing is virtually impossible, the virus has spread rapidly. To date, more than 5,000 detained immigrants have tested positive for COVID-19, likely a severe undercount since testing has been patchy; and at least five, according to ICE, have died from the virus. Meanwhile, Trump has used the pandemic as yet another weapon against asylum seekers, introducing in July a proposal that would ban people from seeking asylum if they were from countries where an outbreak is “prevalent or epidemic.”
COVID-19 has profoundly disrupted immigration courts, just as it has disrupted every other aspect of life in the United States. We long for a vaccine, anticipating that it will return us to our previous lives, where some sense of order and routine existed, where life felt (at least sometimes) sustainable. Immigration court is different. The coronavirus has essentially frozen hundreds of thousands of immigration cases. Those cases are now beginning to thaw, as more courts across the country reopen — including San Francisco, which is set to resume normal operations on September 28. When immigration courts return in their previous form, there will be nothing orderly or sustainable about them.
* * *
To understand immigration court, it helps to forget much of what you know about traditional courts. Immigration courts are not a check on the executive branch; they are the executive branch, run by the Department of Justice and overseen by the Attorney General, the country’s top prosecutor. If the Attorney General doesn’t agree with a decision, they can overrule it. The judges aren’t typical judges, either. They are, instead, “non-supervisory career attorneys” selected by the Attorney General who are tasked, according to federal regulation, to act “as the Attorney General’s delegates in the cases that come before them,” with little control of their court docket and increasingly micro-managed by supervisors.
The court, especially under Trump, is a battlefield on which the rules are constantly shifting. At the front line of that battle, two conflicting imperatives meet. The first is Constitutional: the right to due process — for an immigrant to receive a full hearing in front of an impartial judge. The second is political: Trump wants to deport asylum seekers quickly. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” Trump tweeted in 2018.
In some courts, the battle is largely over. There are courts, usually far from cities and lawyers, where judges deny nearly all asylum seekers, often in rushed hearings. The newest courts, held inside hastily constructed tents near the border with Mexico — temporarily closed due to COVID-19 — approached a sort of platonic ideal for Trump. There, asylum seekers are forced to wait in Mexico’s dangerous border cities — where some have been kidnapped, raped, and murdered — and face judges who appear via video and are prosecuted by attorneys they cannot see. In December, the San Diego Union Tribune reported that of the 24,000 asylum seekers who have gone through the Remain in Mexico program, only 0.4 percent were granted asylum.
In San Francisco, where the battle for the soul of the court was raging before the pandemic, what first struck a visitor was the chaos. One hearing I attended was postponed after the judge realized he had been given a file for an asylum seeker from El Salvador, while the person in front of him was from Honduras. In too many cases to count, the court double-booked hearings, leading to cancellations. Sometimes a translator couldn’t be located, or the translator was located, but didn’t speak the language of the immigrant. Even when hearings went ahead as scheduled, judges struggled to keep a grip on the most basic of facts. After hearing testimony about a harrowing escape from gang violence, the first question a judge asked was whether the woman still had any family members living in Guatemala. She didn’t, because as she had just explained, she was from Honduras. A few minutes later, the judge asked if her partner had remained behind in Guatemala.
When immigration courts return in their previous form, there will be nothing orderly or sustainable about them.
Much of the chaos is due to the volume of cases, caused by the record number of asylum seekers and the chronic underfunding of immigration courts. Over the last three years, the number of pending cases has skyrocketed, from nearly 630,000 in 2017 to more than a million in 2019. In San Francisco alone, the current backlog is 72,000 cases. In 2019, the government opened two new courts in California in an attempt to alleviate this crush. If those courts are having any impact, it’s hard to discern. One day, I squeezed into the waiting room and studied the docket posted on the wall for the day. There were 533 names listed, from 16 countries, who spoke 17 different languages. Taken together, a diverse village. All were people the government sought to deport.
The responsibility to defend this village falls on the shoulders of immigration attorneys. They’re the people who dart between courtrooms as they juggle appearances, cart around oversized bags filled with their client’s files, and have books like Empire of Borders tucked under their arms. They don’t look nervous so much as exhausted. Under Trump — whose framed portrait hangs, crookedly, in the waiting room — judges have been ordered to close at least 700 cases a year. When I asked one attorney how she maintained a work-life balance, she laughed. Another was back in court six hours after the birth of his first child.
* * *
On a crisp morning last December, I joined Emily Abraham and Gautam Jagannath as they wove between traffic en route to court. The couple, both 35, founded a nonprofit called the Social Justice Collaborative in 2012, and have represented hundreds of asylum seekers, many of them indigenous Guatemalans who do not speak Spanish. (The organization has four staff members who are fluent in Mam, a Mayan language.) Even for immigration attorneys, they manage an absurdly heavy load; this week they will appear in 11 individual hearings, which are akin to trials in criminal court.
As they walked, they discussed the case of a woman who had recently come in for a legal consultation. They planned to represent her, but were unable to attend her next court date, so handed over a business card to show the judge. This had always been sufficient to secure an extension. This time, the judge — a new appointee and former ICE attorney — ordered the woman deported. Now they had to appeal the case, a bureaucratic process that, if successful, would further clog the court.
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This morning they were in front of Judge Joseph Park, another former ICE attorney, representing a woman from El Salvador. Abraham had only learned about the hearing the previous week. “I told the court I couldn’t make the new date,” she said. “But they told me I didn’t have a choice. They dump us wherever they want.”
Inside, another attorney was waiting to appear in front of Parks; he, too, had received a call alerting him to the hastily arranged hearing. Abraham let out a sigh of frustration and shook her head. A clerk spoke to the other attorney, whose case was bumped to the following month.
“It’s a form of mistreatment, the constant moving around,” said Jagannath. “It’s mistreatment for everyone: clients, attorneys, and judges.”
Inside the courtroom, the confusion continued. Abraham had filed more than 1000 pages of documents. The attorney for the government, however, was missing numerous exhibits. Abraham’s client had previously been in front of four judges, including one who was participating, via video, from Los Angeles — an entirely different court. Maybe the missing documents were in LA? Then the judge’s computer crashed. By the time the mess was sorted out, nearly an hour had passed. Park, an Asian man with shoulder-length hair and glasses perched atop his head, was growing impatient. He advised Abraham to skip the questions she had prepared for her client and allow the government to begin with a cross-examination. “Otherwise, we’ll be here all morning,” he huffed.
“I agree that we could be here all morning,” Abraham replied. “And I don’t see a problem with that.” She noted the considerable pain her client had suffered, and Park relented. For the next 90 minutes, the woman, who wore a puffy jacket and was frequently in tears, described the abuse she had suffered at the hands of her partner, and how, when she went to the police, they refused to investigate. Then the time was up, and they scheduled a follow-up hearing.
There were 533 names listed, from 16 countries, who spoke 17 different languages. Taken together, a diverse village. All were people the government sought to deport.
“The system really doesn’t want us to be there,” Jagannath told me later. I trailed the attorneys for the week, and watched judges side-eye the number of documents they filed and government attorneys complain about the length of their questioning. The fight was less against a particular judge or attorney; what they were up against was a system with a relentless drive to hurry up and be done. Every part of their defense strategy — the calling of numerous witnesses, the thorough questioning, the extensive documentation of conditions in their client’s home countries — amounted to sand thrown into the gears of the court.
San Francisco’s lawyers have a reputation for not backing down. Last November, an attorney with the Public Defender’s Office, Kelly Wells, was thrown out of court by a judge when she insisted, while observing a hearing, that an immigrant be granted a competency hearing to determine if he qualified for free legal representation. The judge, Patrick O’Brien — also a former ICE prosecutor — objected. When Wells protested that a federal court order required the hearing, and threatened to file a complaint against O’Brien, the judge ordered her removed by security guards. (O’Brien has since recused himself from the case.)
Rebecca Jamil is a former San Francisco judge who resigned in 2018 in protest of Trump’s asylum policies. “San Francisco has an incredibly strong nonprofit and private bar community,” she told me. These attorneys serve as watchdogs, a frontline check on Trump’s desire to gut the court, and help explain why San Francisco continues to be one of the best places for an asylum seeker to appear. Since Trump took office, the rate of asylum denials across the country has steadily increased, from 55 percent in 2016 to 69 percent in 2019. Yet these figures obscure wide discrepancies among courts. Last year, 99 percent of asylum seekers in Atlanta were denied; in Los Angeles, the denial rate was lower, at 76 percent. In San Francisco, it was only 31 percent, one of the lowest in the country.
“There is this notion of due process, this arbitrary, ethereal thing that exists on paper,” said Jagannath, who was born in India and grew up in the U.S. South. “But what does it actually mean when it pans out in the courtroom, if it’s not strong and stern advocacy? The system needs a taste of its own medicine.”
* * *
When Abbas first showed up at immigration court, in 2003, he did so without an attorney like Abraham or Jagannath. A decade had passed since he had arrived in the Tenderloin. Those years had not been easy. He spoke no English, and for the first month he wandered the neighborhood; when he got lost, he’d pop his head inside a liquor store — most were owned by Palestinians. Soon he had a job at one of those liquor stores, working 12-hour shifts, seven days a week, for $800 in cash. He’d close up, get home at 3 a.m., and wake up late the next morning to do it all over again.
For someone who had suffered intense trauma and was looking for a quick escape, the Tenderloin offered plenty of options. Several months after Abbas started working at the liquor store, he met a young woman who introduced him to cocaine. “That is where all my problems started,” he told me. In 1995, police arrived at the liquor store and arrested him for possessing cocaine with the intent to sell. He was placed on probation, but was arrested again in 2001 for the same charge, and was convicted in 2003 after serving more than a year in jail. Before he was released, he was picked up by ICE and locked up again, this time at the Yuba County jail north of Sacramento. Convicted of what is called an “aggravated felony,” he was now vulnerable to deportation.
On August 6, 2003, he appeared alone in front of an immigration judge for his final hearing. Abbas, whose PTSD has caused significant memory loss, remembers little of what transpired. He does remember that he failed to tell the judge that his family had been killed by a U.S. missile. “I was afraid he would think I wanted to take revenge on America,” he said. Most significant about the hearing was what was missed: The judge, who had only reviewed the case earlier that day, failed to ask Abbas if he had ever been tortured and if he feared being tortured if he was deported. Saddam’s security forces had beaten Abbas, shocked him with electricity, pulled out his nails, and hung him from his feet. Although his criminal conviction could bar him from receiving asylum, there were no such limitations under the Convention Against Torture, which prohibited signatories like the U.S. from sending people to a country where they were likely to be tortured. Abbas didn’t know this, of course.
“The number one thing that is relevant is whether Abbas has been tortured before, and the judge never asks,” Ugarte told me. “It just never comes up — that’s what happens when people aren’t represented. They don’t have a real chance, a meaningful opportunity to present their case.”
The judge ordered Abbas deported. The deportation was stayed, however, because Iraq was once again a war zone. Abbas was released and returned to the Tenderloin, but his final deportation order still hung over his head, ready to be enforced the moment Iraq began accepting deportees.
* * *
In immigration court, unlike criminal court, the government does not provide individuals with attorneys. There are those, like Jack Weil, who argue attorneys aren’t necessary. Weil is a longtime immigration court judge who now supervises other judges. In 2015, he claimed that immigration law was simple enough for preschoolers to understand. And yet, here, for example, is a section of an oral decision by judge Gregory L. Simmons, delivered at the end of an asylum hearing I observed:
On protected grounds, with regards to the PSG I am relying on the original BIA decision for that PSG nexus analysis, and my cite there is—I’m not talking about the Attorney General’s opinion in L-E-A-, I’m talking about the original L-E-A- BIA decisions, 27 I&N, December 40, BIA 2017, at page 45. This is the original BIA decision overruled with regards to cognizability but not to nexus. Court still finds the nexus analysis technically persuasive after the AG’s opinion in L-E-A- 2.
If that means something to you, you’re probably an immigration attorney. The hearing was for Cristina, a mother of three who had fled gangs in San Pedro Sula, one of the most violent cities in Honduras. She testified that her partner, David, who drove passengers in a minibus, had stopped paying members of MS-13 after they doubled their extortion fees. Days later, the gang spotted his minibus in front of Cristina’s mother’s house, where the family had gathered to celebrate the birthday of the couple’s 2-year-old son. David fled in the vehicle as they opened fire; he escaped, but the gang members killed one of their own in the crossfire. Enraged, two MS-13 members showed up at the door, heavily armed and demanding to know Cristina’s whereabouts. Cristina’s mother convinced the men that her daughter wasn’t home, and they fled that evening, reuniting with David and departing for the U.S. Cristina, who had since separated from David, now lived in Santa Rosa, where a community of activists had stepped in to help her find housing and an attorney, Richard Coshnear, who runs a nonprofit in Santa Rosa called VIDAS.
As Simmons read his decision, the faces of Cristina’s informal support group, almost all elderly women, remained tense as they struggled to decipher his words. Finally, he concluded, “I intend to grant the asylum application.” I looked over at Julie Wall, one of the supporters, a retired Teamsters president who had earlier regaled me with stories about her brushes with Hunter S. Thompson. Tears streamed down her face. She stepped outside to find Cristina’s daughter, Angela, in the waiting room. The 9-year-old had been at the scene of the shooting, and had testified in court about the armed men who demanded to know the whereabouts of her mother.
“We won!” Wall shouted, hugging the girl and dancing in the hallway. “You were our super weapon!” The waiting room broke into applause. Several people, unaffiliated with the group, wiped away tears.
Trump’s Attorneys General have limited asylum protections for people who are persecuted based on their family ties, just as they have made it more difficult for people fleeing domestic and gang violence. This doesn’t mean that such individuals can’t win. But it does mean that a person must weave together a complicated argument (nexus, cognizability, PSG, or “particular social group”) that to a layperson, much less a person fleeing for their life, is incomprehensible to the point of meaningless. Cristina was fortunate that she had an experienced lawyer who could make meaning of it.
She likens immigration law to sedimentary rock, in which layers are added with time.
The majority of immigrants seeking asylum in San Francisco are able to find attorneys. Even as the number of cases has grown, the percentage of people appearing at their final asylum hearing without a lawyer has dropped — from 8.8 percent in 2016 to 6.5 percent in 2019, according to TRAC Immigration. (In comparison, last year more than half of all asylum seekers in the Jena court, in rural Louisiana, did not have an attorney at their final hearing; of these, 96 percent were denied.) But finding a lawyer outside the Bay Area is still a challenge. Ana Alicia Huerta, an attorney with the United Farm Workers Foundation, told me that her organization is the only nonprofit that provides deportation defense in Kern County, a vast stretch of land with just over 900,000 residents — the same population as San Francisco — and where one in five residents are immigrants. In neighboring Tulare County, population 466,000, there are only three immigration attorneys.
One morning I noticed a woman seated alone in the corner. Felicia, a 32-year-old with an intense stare, had traveled from her home in Orland, a small town 150 miles north of San Francisco. In 2018, she had fled the region of Tierra Caliente, in the Mexican state of Michoacán, where rival cartels were battling for control. The State Department had issued a Level 4 advisory against travel to Michoacán, the same category given to countries like Syria and Afghanistan; last October, 14 police officers in Tierra Caliente were ambushed and killed. Felicia flipped through photos she had brought to show the judge. In one, a man was crumpled in the driver’s seat of a car, his body riddled with bullets. In another, the body of her friend was splayed on a concrete courtyard, his severed head rested several feet away.
Felicia entered the courtroom alone and returned 45 minutes later, her asylum denied. She was fuzzy about what had actually happened inside. The judge was not in the room, but appeared via video from a courtroom in Los Angeles, a controversial practice that had been introduced in San Francisco in 2019. The Los Angeles judge, Nathan Aina, quickly gained a reputation among San Francisco lawyers for rejecting almost all asylum claims, earning the nickname the “quiet assassin.” The combination of nerves and confusion over the video proceeding made it hard for Felicia to recall exactly why he had denied her case. There was only one thing she was certain of, she told me. “I cannot take my kids back to Mexico.”
* * *
The undisputed elder of San Francisco’s court is Dana Leigh Marks, who presides over room 12 on the ninth floor, usually in the company of her service dog, a boxer mix named Joker. Marks, who has curly white hair and sharp blue eyes, began as an immigration attorney in the late 1970s, when she often represented Central Americans who were fleeing violent governments backed by the Reagan administration. In 1986, she argued one of her cases, INS v. Cardoza-Fonseca, in front of the Supreme Court. At issue was the burden of proof asylum seekers had to meet. The government argued that their risk of persecution, if returned, needed to be greater than 50 percent. Marks pushed for a less restrictive standard, citing the language of the U.S. Refugee Act of 1980, which affords asylum protection to individuals with a “well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Marks became a judge in January 1987, two months before the court issued its landmark asylum decision. They sided with Marks, finding that an asylum seeker needed only to show that “persecution is a reasonable possibility.” In his oral decision, Justice John Paul Stevens suggested an asylum seeker with a 10 percent chance of persecution could be eligible for relief — a standard that remains in effect today.
I met Marks during her lunch break, after she had heard the case of a middle-aged man from Mexico. Atop her desk was a towering stack of blue files secured with a rubber band. Before we began, she emphasized that she was speaking in her capacity as the president emerita of the judges’ union, called the National Association of Immigration Judges. Union leaders are the only judges allowed to speak to the public. When they do, they tend to be highly critical of the Trump administration, which is likely one reason the administration is currently trying to dismantle the union. (The week before we met, Marks had been in Washington, D.C. to defend the union during a hearing.)
The court, especially under Trump, is a battlefield on which the rules are constantly shifting.
Many of her complaints are the same ones I’d heard from lawyers: The drive for speed is not compatible with a fair court. She swiveled her monitor and invited me to approach the bench. On the screen was her current performance evaluation, updated in real time, based on two goals and six benchmarks set by the government. All but one had to do with speed. The benchmarks were illustrated by graphics that resembled a car’s speedometer. “If you’re in the red, you’re in trouble, and I’m in the red,” she said. Her current ranking is unsatisfactory, because she has failed to finish 95 percent of her cases after the first individual hearing.
“You walked in as I was sending people out because I ran out of time to complete the case,” she said. Her morning workload has doubled, cutting hearing times by half. If she had ruled on the case, despite the issues that still needed to be resolved, she would drive her performance numbers up, but an appeal would have likely followed, creating more work for the court. Now she had to schedule a follow-up hearing in a month’s time. She doesn’t have any openings on her schedule, so she will have to bump another case — of a person who has already been waiting two years — into 2023.
Marks told me that her experience allows her to make quicker decisions than many other immigration judges. She likens immigration law to sedimentary rock, in which layers are added with time. “Every once in a while, you have to excavate through all those layers to figure out what rule applies,” she said. “I think it takes no less than five years to really be a comfortable, competent judge.” She pulled up a seniority list of San Francisco judges. Other than Marks, who has been a judge for 33 years, no other judge in San Francisco has yet reached the five-year mark. Six have less than a year under their belt. Contributing to the problem of judicial inexperience has been a wave of resignations and early retirements — including at least three in San Francisco — by judges who oppose the Trump administration’s changes to the court and asylum law.
“I don’t want to dis’ the new people,” she said. “I think they’re hiring qualified, smart people. But I think they’re being put in an unfair position.” New judges are placed on probation for two years. Every time they log on to the computer, they are reminded that they are being evaluated by how quickly they dispatch cases, and have to respond to the shifting enforcement priorities of the administration. Both the judge’s union and the American Bar Association have called for the creation of an independent immigration court, one that would be insulated from political pressure.
Before Marks excused herself to walk Joker, I asked about the increasingly widespread use of videos to conduct asylum hearings, which had sparked fierce criticism among San Francisco attorneys. “I am very troubled by it,” she said. “So much of the evidence is based on whether or not you believe someone’s testimony. And I do think there’s a human element where it is much easier to be disconnected from the individual. If you’re going to deport somebody, you should be feeling it, up close and personal.”
* * *
Several blocks from the main courthouse is another, smaller court at 630 Sansome Street. Known as “detained court,” hearings are held here for immigrants locked up by ICE, who participate via video from either the Yuba County jail, north of Sacramento, or a detention center in Bakersfield, Mesa Verde, run by the GEO Group, a for-profit company. In San Francisco, as in many courthouses across the country, detained cases are the only ones that have continued to proceed during the COVID-19 pandemic.
Many of the immigrants appearing in this court are longtime residents whose criminal convictions, sometimes from decades ago, have triggered deportation proceedings. There is a desperation here, a sense of futility, as men in orange jumpsuits make brief appearances from far away, nervously squinting into a camera as their wives and children watch silently from the benches, dressed in their Sunday best.
Mounting a defense while detained is much more difficult than while free, as the cases move quickly, giving immigrants and their attorneys less time to gather documents and prepare a case. It’s a challenge for lawyers to communicate with their clients when they are detained, and conditions inside can be dangerous. In one detained hearing I attended, an attorney had recently discovered that his client, without warning, had been transferred to Arizona, where he now faced deportation in a different court. In the next case, the judge perfunctorily asked a man, who was being held at the Yuba County jail, how he was doing. “Not very good, because a few days ago gang members beat me up,” he said softly. The judge asked if he wanted to continue, the man replied in the affirmative, and the judge continued without further inquiry. Complaints about medical care are also widespread. NPR recently reported that an internal investigation of the Adelanto detention center in southern California, also run by GEO Group, found that faulty medical care “more likely that not” contributed to detainee deaths, and recommended all “at-risk” individuals — which included anyone over 55 years of age — be immediately transferred. (It doesn’t appear the advice was followed.) During the coronavirus pandemic, inadequate medical care and crowding conditions has also led to outbreaks; last month, a federal judge in San Francisco ordered all detainees at Mesa Verde, in Bakersfield, be tested after court documents revealed officials were intentionally not testing people to keep their numbers low.
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Under Trump, the number of immigrants held in detention rose dramatically, to more than 55,000 by last fall, though it has since dropped to about 21,000 due to the coronavirus. This steep pre-COVID-19 increase sparked a backlash in California, where activists recently pressured Contra Costa County, north of Oakland, to stop holding immigrants for ICE. They also pushed for a new law to phase out all private prisons in the state, including those that hold immigrant detainees; that law went into effect on January 1 of this year. Less than two weeks before the deadline, however, ICE signed new contracts worth a combined $6.5 billion for four detention facilities in California, which can be extended for 15 years and could double the number of detained immigrants in the state.
On March 8, 2018, Abbas appeared in front of judge Alison Daw at Sansome Street, hoping to win — at least briefly — his freedom. He had spent the last 10 months at the Contra Costa jail, after being swept up in an ICE raid the previous summer that targeted hundreds of Iraqis with final deportation orders. Trump had campaigned on the promise to ramp up deportations, and he had recently removed Iraq from the travel ban, as long as they promised to begin accepting deportees like Abbas.
When Ugarte visited Abbas at the jail, soon after his arrest, he found a broken and vacant man. Before his arrest, Abbas had grown close to Jeff Adachi, the late San Francisco Public Defender, who had represented him on a drug charge in 2016. At first, Abbas was a bit confused by Adachi’s interest in his personal life. What was so interesting about a guy who always got into trouble? Yet Adachi, known for his fanatical devotion to clients, seemed able to envision a different, brighter future for Abbas. At his urging, Abbas had stopped using drugs and, with a clear head, began to slowly piece his life back together. He had finally moved out of the Tenderloin. He had a new girlfriend, LaDawn, who he had helped extricate from an abusive relationship. He had Adachi in his corner.
And then, just like that, he was back in trouble again.
“Get me out of here,” Abbas pleaded with Ugarte. “Just get me on a plane and I’ll go home.” Ugarte was taken aback. “I can still hear his voice,” he told me. “He was so desperate. It was a suicide wish, really.”
Ugarte told Abbas to hold on, that it was too early to give up. The ACLU of Michigan, where many of the arrested Iraqis lived, had filed a federal lawsuit to halt the imminent deportations. Soon after, a federal judge granted a temporary injunction against the deporations. This gave Ugarte the ability to file for a bond hearing, in which he could argue for Abbas to be released, as well as an opportunity to reopen the original case.
Abbas’ first victory was at the bond hearing. To determine whether a person can be released as their case proceeds, judges are supposed to consider whether they pose a public danger or flight risk. Under Trump, the rate of bond denials has increased, but the judge agreed to release Abbas on two conditions: that he report directly to a residential treatment house, and never step foot in the Tenderloin again (he was outfitted with an ankle monitor). He spent two months at the Walden House, in the Haight-Ashbury neighborhood, where he was diagnosed with PTSD and received the first mental health and substance abuse counseling of his life.
The second victory came when the Board of Immigration Appeals ruled in favor of Abbas. This sent his case back to immigration court, to be heard by a new judge. Which is where I met Abbas, knee bouncing wildly in the waiting room, as he prepared for his final hearing to begin.
A few minutes before 1 o’clock, Abbas walked down the hallway and entered Courtroom 3, accompanied by LaDawn. Inside, he took the witness stand and was sworn in by Judge Elizabeth Young, considered a veteran even though she was only appointed in 2016 during the Obama administration. Handling the initial questioning was Ugarte’s colleague, Nuha Abusamra, an Arabic speaker who had worked closely with Abbas to prepare for the hearing. Opposite her was the attorney for ICE, who informed Ugarte she would not appeal Young’s decision if she ruled in favor of Abbas — another good sign.
For 20 minutes, Abbas answered Abusamra’s questions, detailing his torture in a quiet but steady voice through an Iraqi interpreter flown in from Denver. When he described finding the corpses of his family members after the missile strike, his voice finally cracked. Young stepped in. Earlier, she had said that she didn’t believe Abbas needed to recount every traumatic experience, but to focus on his past torture and why he feared returning. “Let’s try not to make it overly emotional for the respondent,” she said now. “I don’t want a long drawn-out trial where he’s weeping the entire time.”
This turn of events seemed to catch Abusamra and Ugarte a bit off guard, as they had prepared Abbas for a long, detailed, and wrenching experience on the stand. Instead, Abusamra moved on to the reasons Abbas feared returning to Iraq, and then turned it over to the government attorney. She only had a few questions, mostly to confirm that Abbas had no living relatives in Iraq. Abbas stepped down from the stand and took his seat between Ugarte and Abusamra. Ugarte closed with a final sentence. “It’s a miracle Abbas is alive today.”
Young looked down at her desk, shuffled through papers, and looked up at Abbas. “I am granting you deferral of removal under the Convention Against Torture,” she said. Next to me, LaDawn, who had been noticeably shaking throughout, began to weep. Ugarte embraced Abbas, who was now crying as well. Young had remained judgelike throughout, stoic and difficult to read. Now she let a smile escape. “Congratulations,” she said, “and I wish you the best of luck.”
Afterward, the group, which included two volunteer observers who had come to support Abbas, gathered in a small room to debrief. Abbas appeared dazed. “I’m done with court?” he asked. It was true, Ugarte confirmed. He could now get his ankle monitor removed. He could get a work permit. He and LaDawn lived in a noisy hotel in the Mission district, where they paid $1600 a month to share a bathroom that was often littered with the used needles of other residents. They could move out of San Francisco, to someplace quieter and cheaper. For some reason, the image of a life on a farm in Louisiana had lodged in Abbas’ head.
Later that day, I talked to Ugarte over the phone. The fight to protect Abbas had lasted more than two years, and he was ebullient. “Today is one of those days when you believe in the system,” he said. But it, of course, was not so simple. Abbas would not be deported due to a long string of fortunate breaks: Abbas had met Jeff Adachi; Adachi had sent Ugarte to visit Abbas in detention; the ACLU had filed a lawsuit to temporarily halt the deportations of Iraqis; a judge had granted the injunction; Ugarte’s subsequent appeal had been successful; another judge had allowed Abbas to be released; the ICE attorney hadn’t been hostile; Judge Young was sympathetic. It was certainly miraculous that Abbas was not going to be deported. Which was another way of saying that the system is broken beyond repair.
Gabriel Thompson is a journalist in Oakland and mostly writes about immigration, labor, and organizing.
Editors: Katie Kosma, Cheri Lucas Rowlands
Fact-checker: Julie Schwietert Collazo
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