San Diego 'Things may change in Iraq between now and June 18," says Judge Ignacio Fernandez in reference to the next date Ayad Fawsi Suliman is due in court. "Should we have an asylum hearing?"
The judge's question is directed to Suliman's attorney, who is seeking relief in Immigration Court from visa-violation charges brought against his client by the former Immigration and Naturalization Service (INS). The date is March 3, 2003, the first day that the agency has come to court under its new name, Bureau of Immigration and Customs Enforcement. It has moved, too -- from the U.S. Department of Justice to the Department of Homeland Security.
After conferring, Suliman and his attorney agree to come back to court on May 2 for a supplementary hearing on whether an asylum application is warranted.
As a visitor to Immigration Court, I am finding it difficult to follow all the details of Suliman's case. And, unless he invites me, I will not even be able to attend his future hearings, if they do become appeals for asylum.
I find that out the hard way. Since December of last year I have been dropping in at random on San Diego's Immigration Court master calendar sessions. But in early February I sit down in the back of the hearing for a single respondent named Majed Bihnam Shaba, also an Iraqi immigrant. Upon learning my journalistic intentions, Douglas Nelson, Shaba's lawyer, asks Judge Gayle Boone to remove me from the courtroom. Nelson argues that the regime of Saddam Hussein might find out about his client's testimony in court and take it out on members of the family still living in Iraq. In an ironic twist, given the agency's usual secrecy, the INS attorney counters that my being allowed to stay in court would better serve our own public's need to know. Judge Boone sides with Nelson and asks me to leave.
The scene of my expulsion is a small courtroom on the eighth floor of the First National Bank building at the corner of State and Ash downtown. The insignia of the U.S. Department of Justice, to which Immigration Court belongs, is on the back wall behind the judge. In all the courtrooms, respondent and attorney sit at tables in front of the bench to the judge's left, and the government's attorney sits at another table to their left. A translator provided for respondents who need one looks across the room toward the respondent and speaks softly into a microphone. Earphones allow the respondent to hear the translation of proceedings clearly.
Immigration Court's administrative headquarters are on the same floor of the bank building. But the court conducts hearings and trials at two other locations: in the basement of the Federal Building on Front Street downtown and at the Correctional Corporation of America in Otay Mesa. Courtrooms at these facilities are for respondents being held in custody. Respondents who go to court in the bank building are usually out on bond.
Suliman and Shaba were fortunate to have lawyers to help them. Many respondents come to Immigration Court without one. When Judge John C. Williams one afternoon tells a Miss Pineda from El Salvador that she needs to hire an attorney because her case has "very difficult immigration problems," she replies that she can't afford to. He tells her that he will give her a "free providers list." But knowledgeable sources tell me later that most of the lawyers on that list charge for their services. And U.S. Immigration Court provides nothing like a public defender.
Without a lawyer to represent her, Veronica Njeri Maximii's case seems to confuse even Judge Williams. He asks her, "Why have you come to court? For violations of your visa?" From my back-row seat I see the Kenyan SDSU student's shoulders shake in sobs. After struggling some seconds for composure, Maximii tells the judge that if she returns to Kenya, her tribe will force her to undergo genital mutilation. The judge advises her that she should consider applying for asylum.
Sources close to the court say that 95 percent of foreigners who appear before it concede that they have broken federal immigration law in one way or another. They then face "removal," the new term for deportation. Aliens may remove themselves voluntarily from the United States by paying for their own travel. Or the government will remove them forcefully, a move that delays and makes it harder for them to legally return to the U.S.
But in Immigration Court respondents can get various kinds of relief from this fate, only one of which is asylum. If they have been supporting a family in the U.S. a long time before they have been caught, for instance, they might be able to obtain permanent-resident status.
In many cases, however, it is close to impossible for aliens to obtain relief from removal. One is conviction for an aggravated felony. Eugene Armatasev, a Ukrainian, had already pleaded guilty in Superior Court to assault with a deadly weapon and was convicted of robbery as well. Though he is seeking nonpermanent resident status because of his marriage to a U.S. citizen, Judge Fernandez tells him that his "disqualifying conviction" makes it likely that he will be removed.
A second disqualifying situation is what Judge Fernandez one morning calls "the ultimate lie," that is, claiming to be an American citizen when one is not. Roxana Zenkel, a young Armenian woman who has legal-alien status in the U.S., went to Tijuana with friends one night. On her return, INS officials asked about her citizenship at the border, and she told them she was American. They learned the truth when they checked her papers and took her into custody.
In situations like this one, mitigating circumstances can sometimes offer the respondent hope. On this morning, Guy Grande, Zenkel's attorney, argues before the court that Zenkel was intoxicated and asleep in the back seat of her friends' car when the Border Patrol woke her with the question about her citizenship. "Her statement was not lucid," Grande tells the judge. Zenkel, who will have to come back another day to learn her fate, walks out of court wiping tears from her eyes.
The situations that usually disqualify aliens from relief in Immigration Court make some of them vulnerable to unethical lawyers. Upon questioning someone who is seeking help, a lawyer might learn that a disqualifying situation will make it impossible to obtain relief but take pay on the promise to help anyway. The alien then loses in court and is out the money. But the offending lawyer is safe from reprisal, because his client gets removed from the U.S.
A number of immigration attorneys in San Diego say that such practices are not uncommon. But they are reluctant to accuse any of their colleagues, not only for fear of negative repercussions, but because the nature of practicing law makes it difficult to know when the ethical violations are taking place. As the first response of physicians is to try to heal the patient, the lawyer's first response is to inquire whether the client might have circumstances that could offer relief, even if those circumstances are minor exceptions to harsh rules. Once some attorneys go that far, they feel they have taken on the case and deserve to be paid for their services.
Derrick Porratadoria, an administrative assistant for the nonprofit Center for Law and Justice, says that another type of functionary sometimes creates even greater problems for aliens who have problems with San Diego's Immigration Court. "The notarios in Mexico and other countries down south are like attorneys. I'm sure in their country they're quite good. They help people with birth certificates and marriages and other things, but here in the U.S. they play attorneys, and half of our work is fixing what they do wrong on the paperwork.
"The notarios get people deported," says Porratadoria. "But the second Hispanics see the word 'notary,' they trust it more than an attorney, because attorneys in Mexico are the thieves. It's opposite of what the situation is here. People trust notarios because their neighborhood notary always helped them at home."
A particular predator comes to my attention through the rumor mill. At the Capri Hotel at the corner of E Street and Union, right behind Immigration Court's courtrooms in the Federal Building downtown, I check out the stories. The hotel's manager, who asks not to be named, confirms them. For over two years, she says, a man named Joseph Bacho rented an office on the ground floor of the hotel. Neither residents nor employees inquired into his business but did notice many Hispanic people visiting his office.
As soon as Bacho moved out several months ago, many of those same people appeared at the hotel claiming he had taken thousands of their dollars to help them in court. And now he'd disappeared.
The Capri Hotel got a forwarding address in El Centro from Bacho and posted it on the door of his former office. But within an hour of its posting, the Capri's manager saw a woman who had worked for him pulling it off the office door -- and told her to tack it back up. The woman cooperated and left, but an hour later it was gone again.