Reflections from the border

HIRC students share their experiences representing families separated by Trump’s zero-tolerance policy

In August, Harvard Law School students Alessandra De La Tejera ’20, Josephine Herman ’20, Evan Hindman ’19, and Andrew Patterson ’20, and Harvard Immigration and Refugee Clinical Program faculty Sabi Ardalan ’02 and Cindy Zapata spent a week in Texas volunteering with RAICES, an organization that offers free and low-cost immigration legal services in Central and South Texas.

“I wanted to do something client-focused this summer,” said Herman, who worked with survivors of gender-based violence in Guatemala before coming to HLS. “I have family connections to immigrants from Central America, and I wanted to work with people facing these issues.”

The HIRC students and faculty worked at the Karnes Detention Center, where they met with fathers and sons who had been forcibly separated from each other under President Trump’s zero-tolerance policy. On the Harvard Immigration and Refugee Clinical Program blog, HIRC Clinical Instructor Cindy Zapata and three students offered their thoughts on this powerful and eye-opening experience.


 

Cindy Zapata, HIRC clinical instructor and supervisor of the HLS Immigration Project

There are some memories that remain so vivid in my mind. Some of them are obvious ones, like the day I got married and the day my son was born. Others are not so obvious, like the time my mother made me pay for a 5 dollar chicken shawarma in dimes and nickels. She laughed hysterically from afar as I ashamedly walked over and paid the man in countless coins. She insisted that it was a life lesson on the value of money – money is money, whether it comes in the form of a bill or a coin.

Often these memories evoke the emotion I felt in that very moment – joy, happiness, embarrassment – but there are some memories that not only evoke the emotion, but, in a way, transport me to the very moment of the experience. An example? Volunteering at the Karnes Family Detention Center.

During the four day stretch we were there, we met with countless fathers and sons. We helped represent some for their credible fear interviews or drafted affidavits. For others, we represented them for their reasonable fear redetermination appeal before an immigration judge. In three days, we had more than ten hearings.

Each had a very unique story, but they all shared a similar sentiment: they were scared of returning to their home country. Each had suffered or witnessed unimaginable horrors – sexual violence, physical assault, and death.

In my work, I’ve visited various different prisons and detention centers. As one can imagine, it’s a challenging experience. They’re physically and emotionally cold, and you can almost feel the desperation and lack of liberty in the very air you breathe.

But Karnes. Seeing fathers and children in detention. Seeing a three-year-boy in detention. It’s an image I can’t get rid of.

There were so many moments in our time there where I saw the law simply not protect the people that it was intended to protect. I saw the law fail miserably in upholding due process and basic fundamental rights. Individuals with valid asylum claims were not even allowed to explain their fear and experiences in court or they were denied interpreters or legal representation despite their affirmative requests. One father told me he had been separated from his five-year-old son – he was simply taken away. During that time of separation, he received his credible fear interview (CFI). I read his CFI and it was clear that this heartbroken man was incapable of understanding the questions before him. The only questions he asked over, and over, and over again were – Do you know where my son is? When will he come back? Can you help me find my son? Questions the asylum officer could not answer.

By the time I met this father, I was helping him finalize his affidavit to request a new interview before the asylum office. He was closing in on approximately three months in detention. He was tired and desperate. Despite having an extremely strong political asylum claim, he just couldn’t handle the thought of him and his son being in detention even a week longer. He was close to giving up.

My return home from Karnes was difficult. I’d see my son playing and I’d be immediately overwhelmed with guilt, knowing that I’d never have to make the impossible decisions these parents have made. I couldn’t shake the thought that at any given moment this father and his son, and countless other parents and children, are in detention.

Whenever I see kids coloring, I sometimes find myself back at Karnes. The kids weren’t allowed to color.

Whenever I see an image or a drawing of a dove, I sometimes find myself back at Karnes. An indigenous boy I met with had drawn a dove on his school folder. He was very talented.

I find that individuals in detention often draw doves.

A symbol of hope for a new beginning.

 

***

Alessandra De La Tejera ’20:

I stood next to Alberto*, a client I represented in a hearing to review his credible fear finding, and watched helpless as the Judge essentially cross-examined my client over every tiny discrepancy or omission in his Credible Fear Interview (CFI). Alberto told the Judge about his issues with the interpreter, who was switched halfway through the interview, and who continuously interrupted and talked over him. He told the Judge about how he cannot read or write and his difficulty understanding the questions. He told the Judge about how his son was brought in toward the end of the interview, distracting him before he could mention his fear over working for a political party.

In response, the Judge rattled off the boilerplate questions, barely giving Alberto a chance to nod between each question:

“You were asked, ‘Did you understand my questions today?’ and you said yes.”

“You were also read a summary of your claim, and they asked if it was correct, and you said yes.”

“You were asked if there were any changes you wanted to make, or if you wanted to add anything, and you said no.”

“You were asked if there was anything else that was important to your claim that you hadn’t discussed, and you said no.”

He then found Alberto not credible, and affirmed his negative credible fear finding.

Considering the context Alberto was in, it’s understandable that he was unable to truly comprehending the significance of those questions. Still, in this preliminary review, for which he only needed to provide some evidence that he could prevail on an asylum claim if it were adjudicated, none of that reasonable compassion was extended to him.

The asylum system is failing in its core purpose of humanitarianism. Direct representation is critical because these individuals want and deserve an advocate, or at the very least a companion to walk them through this process. Still, that company is only so helpful, and it does not compensate for the fact that even with representation, many lose. Policy work is then critical because the laws and their application need to change in order for representation to become effective. Policy work can only do so much, however, when the laws as they stand do nothing to prevent judges and other immigration officials from using their discretion to reject statutorily valid asylum claims. Representation of compassionate perspectives in the judiciary is then critical, so that those with discretionary power wield it with empathy. In short, as I left the Karnes Detention Center, my somber takeaway was that there is a lot of work to do, and everywhere.

*Client’s name has been changed to maintain confidentiality.

 

***

Josephine Herman ’20:

Karnes is a family detention center, which means that it houses adults and their minor children during the early stages of the asylum process during which credible fear interviews (CFIs) are conducted. Although there are toys in the visitation area and colorful posters on the walls, it is impossible to ignore that Karnes was built as a prison for adults. Clients are called in groups to meet with lawyers, legal assistants, and volunteers about their cases. Although the staff try to use the private rooms to discuss clients’ personal cases, often they are full and so a client and a volunteer sit in the crowded, loud visitation room to discuss the clients’ asylum claim—which usually means hearing about the worst experiences of their lives.

“Part one: the harm you have suffered.” Clients discuss sexual and domestic violence, beatings, shootings, stabbings, extortion, threats to their lives, threats to their children’s lives, threats to kill their whole families. They talk about men in loose clothing and tattoos (a sign of gangs) who lurk outside of their homes. For the sake of time and the law, I move quickly past the persecution element. This is not usually where people have trouble in their cases—the vast majority show horrific harm and threats.

“Part two: the motive of the harm.” This is where most claims fail, but often a client does have a way to meet the motive, or nexus, element—it’s just that it is unclear to the adjudicator. I ask about their religion and whether they go to church. I ask what the person who raped them said while he did it. I ask them about whether there is something different about them, or about their family, that people don’t like.

“Part three: why the police or government can’t or won’t help you.” Sometimes, this question is met with incredulity. Of course, the police won’t help in countries where they are in league with the gangs, or against a certain political party, or abusers themselves. It can be challenging to ask a client to explain something that is just a fact of life in his or her home country. Often, when I ask them how they know that the police won’t help, the answer is simple, “everyone knows.”

“Part four: why isn’t it safe in your home country? Why can’t you hide?” The gangs have contacts all over. My abuser is a powerful man. The government is against my party. I don’t know anyone else. The city is even more dangerous. I was a farmer, I don’t have a way to work that’s not my land. I tried to move and they found me. They even found me in another country.

Although each story is unique, and has its own tragic and horrifying details, the days are long and they start to blend together. RAICES staff arrive at 10 a.m. and leave when the visitation room closes at 8 p.m. Then, there is the long drive back to San Antonio and preparations for the next day. Volunteers help them to work more efficiently on complex cases and on getting through the dozens of people that might pass through visitation daily. The days are both repetitive and unpredictable. This summer, with the family separations, staff dealt with unexpected transfers and retaliations by ICE against protesting fathers.

They are still there, still doing the work, day in and day out.

 

***

Andrew Patterson ’20:

Over the course of three days volunteering at the Karnes Detention Center in Texas, we watched the soul drain from an immigration judge’s body. We had all heard the stories of judges in these proceedings haranguing asylum-seekers, silencing advocates, and summarily denying claims. We would learn that those stories told of a system whose injustices run too deep for any one government official to escape with their humanity fully intact.

During the first day of hearings to review negative credible fear findings, the judge was reasonable, and while he mostly denied relief, he was at least pretending to apply the law correctly and was treating both advocates and their clients with dignity and respect. He respectfully and thoroughly detailed his disagreement with the lawyers’ arguments and explained his decisions.

By the second day, we observed a shift. He was moving through hearings more quickly. His mood had darkened and, in his impatient declarations that the lawyers were only present and speaking “at his discretion,” we began to see the process wearing him down. He was misstating the legal standards, mixing up the higher bar for those who had already been previously deported from United States with the lower one for those who had just entered for the first time. The interpreter also began making serious mistakes – she repeatedly mistranslated things in ways that were actually prejudicial to one of my clients and made it seem as though he was a criminal, and my deferential protests seemed to infuriate both interpreter and judge. By this time, he must have sat through more than a dozen hearings, each lasting about 45 minutes, listening to horrific stories of violence in Central America. He had repeated this process all day, for at least two days straight, for at least eight hours each day. At least the lawyers, sleep-deprived and harried as we were, did not have to shoulder the weight of making decisions about people’s horrifying circumstances for hours and days on end.

On day three, the judge was exhausted and irritable and had abandoned all pretense of justice. My client, mentioned above, who had the most obviously defective credible fear interview that I encountered that week, compellingly recounted his story of horrific persecution on account of his race only for the judge to declare, inexplicably, that he had not testified that he was persecuted on account of his race. Later that day, one of my colleagues was actually shut out of the courtroom as she tried to protest the fact that her client was being forced to go forward without an interpreter who spoke her client’s native language. The transformation from two days prior stunned all of us.

It is unfair to everyone to require judges to make these life-and-death decisions under these conditions. I doubt whether anyone can maintain their humanity when called upon to preside over this procession of human misery for days at a time, with no respite, trying to perform the delicate task of questioning human beings about the worst experiences of their lives in order to make a judgment about whether those experiences satisfy the strictures of the asylum statute. It was sobering to witness the human costs of forcing immigration judges to adjudicate “what amount to death penalty cases… in traffic court settings.” Unfortunately, the government actors near our southern border are more interested in the efficient denial of claims than weighing them justly.

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