An article in today's LA Times discussed the different treatment of asylum-seekers who apply for asylum immediately upon arriving at a point of entry in the US versus those who apply after having somehow made it into the country. Meanwhile, elsewhere in the immigration universe, Immigration and Customs Enforcement (ICE) proudly announced the arrest of 3,100 criminal aliens through its new, focused enforcement priorities (though some, such as Crystal Williams, the Executive Director of the American Immigration Lawyer's Association (AILA) questioned the accuracy of that announcement). Recently, these two stories intersected for me in a sad reminder of our current immigration realities.
Late last fall I was retained to represent a client detained at Delaney Hall in New Jersey. Eric* was from a country that has seen a recent rise in Islamic fundamentalism. As a recently converted yet devout Christian, Eric began fearing for his safety about a year ago, when violence against Christians began seeing a significant increase. He sought to acquire a visa to Europe, where several of his family members lived. However, his application was denied. Desperate to leave his home country, he hired a broker to help him apply for a US visa. The broker included all of Eric's biographic information on the visa application but changed some details about his job. Eric knew this was wrong, but told himself he could explain this to authorities once he arrived in America, which he thought held the promise of safety and freedom.
When Eric arrived at JFK International Airport in New York City, he was taken into a room for secondary inspection by Customs and Border Protection (CBP) agents. Scared and confused by the harsh questions and agressive tactics, he stammered out his answers and barely got out his purpose for traveling to the US. Eric was allowed into the US, but not to the safety and freedom he had hoped for. Instead, he was brought to a Federal holding facility in Brooklyn, New York and prosecuted for visa fraud. His State-appointed attorney advised him to plead guilty to the Federal charge, indicating that it would not be a statutory bar to asylum, or face a prolonged detention while waiting for trial. So Eric plead guilty, was sentenced to three months confinement, and upon his release was transferred to the custody of ICE.
In removal proceedings before a an Immigration Judge, Eric was charged as being removable from the United States based in part on his criminal record. Because he was now a criminal alien, ICE also refused his parole request, meaning Eric had to stay in detention while his case played out before the Immigration Court. ICE did keep him in Delaney Hall, however, one of its newer, "reformed" detention facilities ostensibly meant for aliens that typically do not pose a threat to society. Before the Immigration Judge, Eric was finally able to ask for asylum.
That request for asylum was denied last month - not because Eric did not meet his burden of proving he had a credible fear of persecution based on his religious beliefs, but because he had a criminal record. For this reason, the Immigration Judge did not believe Eric was entitled to a favorable exercise of her discretion. The Judge was also unpersuaded by my argument that the criminal conviction must be looked at in its context: that the lie on Eric's visa application was made because of the very fear that led him to flee to the United States and ask for asylum in the first place.
Two weeks ago, I sat in a small visitation room at Delaney Hall, trying to persuade Eric to appeal the judge's decision. With tears in his eyes, he looked up at me and said: "I'd never been in handcuffs before I came to this country." He came here looking for help and for safety, and instead was treated like a criminal.
I do not disagree with the Obama Administration's decision to deport those who truly cause harm to our society and our country. I do not think many immigrant advocates would. However, the implementation of these policies, along with the pervasive "culture of no" that seems to rule the ICE field offices, if not the headquarters in Washington, DC, have all too often led to the baby being thrown out with the bathwater and then some. Eric's case is the perfect example. He is not a danger to our society. He had never committed a crime before he lied on his visa application, and his crime was one many of us would probably have also perpetrated if faced with the same situation. Eric could be an asset to our country if given the chance. Instead, he is entering his ninth month in detention. He has yet to see any of the United States.
At the end of our conversation two weeks ago, I asked Eric for his decision regarding his appeal. He told me he has had a lot of time to read in detention, and he found a quote that pleased him recently: "A winner never quits" he told me. And so, to be continued...
*Name changed to protect the identity of the person.