At the US-Mexico border, asylum seekers are trapped in a hostile environment which is seen as a good move by the majority of Americans.
The El Paso Processing Center, informally known as the Camp, is a sprawling, walled compound of low-lying cinder-block buildings and trailers tucked between the landing strip at El Paso International airport and the Lone Star golf club, a public course that sits just across the street. The camp houses around 800 immigrants at any given time – some awaiting deportation, some awaiting their hearings or appeals. Some pass through for a day; others stay for years.
Wassim Isaac, a 32-year-old Syrian with ginger hair and impeccable manners, had been at the Camp for over a year by the time we met, in December 2017 – his asylum denied, his appeal wending its way through the system. Isaac, who asked that I not use his real name, had been the owner of a pharmacy back in Syria, and described himself as a college-educated, law-abiding churchgoer. When he first arrived at the Camp, he asked himself how he had come to be incarcerated. Immigration and Customs Enforcement (ICE) designates the Camp as a “holding and processing facility”, but as far as Isaac could tell, it was a prison. “Like in the movies,” he said flatly.
He would be stuck in the facility for who knew how long, having been refused asylum for reasons he couldn’t quite grasp. The judge had initially implied that Isaac, a Christian fleeing both militiamen and Islamic extremists, had a convincing case, but then, in an abrupt about-face, denied him. “Is it personal? No,” Isaac said, perplexed. “Related to the law? Political?”
He concluded that trying to make sense of his predicament was an exercise in futility. He decided instead to look at his captivity from the US government’s point of view. “In their opinion, I make a crime because I come here with no visa,” he told me. “I convince myself. I say: ‘OK, I am illegal. I am illegal.’”
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| US customs agents at the border between El Paso, Texas and Ciudad Juárez, Mexico. |
In fact, Isaac had not committed a crime. He had not slipped into the country outside a designated port of entry – a misdemeanour or, if done repeatedly, a felony. Instead, on 2 October 2016, Isaac joined a throng of people in the pedestrian lane of the Paso del Norte International Bridge, which divides Mexico’s Ciudad Juárez from El Paso, Texas – the same bridge that Customs and Border Protection (CBP) officers, outfitted in riot gear, have barricaded, in preparation for the arrival of the Central American migrant caravan. Below the bridge runs the border between the two nations: a trash-clogged trickle of the Rio Grande, no deeper than a puddle. When Isaac reached the front of the line, he used broken English to inform a border agent that he was a Syrian national seeking protection. In doing so, he behaved in accordance with international human-rights law and US immigration law. He also crossed into the El Paso jurisdiction, which, unbeknown to him then, is one of the worst places in the US to seek asylum.
Immigration courts are administrative bodies, divided into regional districts that have developed starkly different patterns of adjudication. Between 2012 and 2017, for example, judges in the New York City court approved around 80% of applications for asylum, according to a Transactional Records Access Clearinghouse (Trac) analysis of government data. In Miami, the approval rate was around 30%. In El Paso, it was just 3%. Asylum seekers in El Paso then find themselves – simply by virtue of being there – trapped in a jurisdiction that consistently refuses relief, and has done so for years.
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| Central American migrants wait at the Paso del Norte international bridge in Ciudad Juárez |
At the Camp, the thermostat always hovers around 20C (69F). Speaking through a crackly phone across a thick pane of glass, Isaac recalled how, at the beginning of his internment, he felt perpetually cold, but after six months got used to it. He wore a frayed, ICE-issued jumpsuit, but was immaculately groomed – his close-cropped hair gelled, his beard trimmed – and unerringly pleasant, speaking English that had become nearly fluent during his time in Texas.
Isaac shared a dorm with 60 other detainees. His bed was a lower bunk, with a revolving cast above – sometimes someone would arrive at 2am and leave at 6am, on the way to the plane or bus that would deport them. Initially, these strangers rotating in and out kept Isaac awake, but soon he barely stirred when a newcomer climbed the ladder past his head.
Isaac’s days took on a dreary rhythm: his shift in the laundry at 6am, breakfast at 7am, lunch at 10am, dinner at 5pm. The food was always the same, doled out sparingly: porridge, eggs, mystery-meat macaroni, jelly, milk, ham sandwich, crisps. Watermelon once a week. Burgers twice a month.
At first, Isaac counted every minute, every hour, comparing the time. When he woke at 5am in the US, it was 1pm in Syria; when he ate at 10am in America, it was 6pm in Syria. He called his brother in California daily, at 50 cents a minute. His brother dialled their parents, with Isaac on speakerphone. But after a while, Isaac stopped calling so much. It wasn’t so bad inside, he explained, as long as he didn’t think about his family, his friends, his country, his career, the past, the future, food, drink, sports, music, movies, politics, books, newspapers, technology, cars, women or freedom. “I have my life here; I have to live,” he told me. “I can’t compare my life before and my life now.”
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| El Paso, Texas |
Isaac grew up 30 miles north-west of Homs, in Kafr Ram, a mountain hamlet nestled in “the valley of the Christians”, home to an ancient population. Before war broke out in 2011, Syrian Christians were an educated, elite minority. Isaac’s father is a retired history professor; his mother, a school principal. His three siblings are doctors. Isaac received a degree in pharmaceutical chemistry at a private university near Damascus and then moved to Homs to open his own pharmacy. “It looked like an easy life,” he said. “Quiet. Very beautiful.”
Isaac painted the pharmacy name in red and blue on the window. He played Arabic music videos and basketball games; his favorite team was the San Antonio Spurs, which he believed hailed from the “American state of San Antonio”. He imagined that he would own the business for ever, and endeavoured to become a part of the community, administering free vaccines to kids whose parents couldn’t afford them.
But soon after the uprising began, Isaac sensed a shift in public sentiment toward Christians. By 2013, he noticed “strange people with long beards standing on the street corner, watching” – members of the al-Nusra front. In 2015, Isaac said, they began to extort him, taxing him for living in his own apartment. He paid, but they still broke into his home, beat him and destroyed his belongings. Later, they fired on his car and apartment building, which was known to house Christians. They killed his Christian neighbour, mutilating the body. The man’s wife used Isaac’s phone to call her relatives for help. There were no authorities to protect her.
Isaac felt certain, he would later recount at his asylum hearing, that he would be “their next sacrifice”. And there was another danger hanging over him: he had run out of ways to defer military service, and had then failed to report for duty – an offence punishable by prison or death.
Isaac went to live with his sister in Kafr Ram, but returned daily to open the pharmacy, which was in an area controlled by an Assad-aligned government militia. The militiamen warned him to leave; Christians, they claimed, had no right to operate businesses. Soon after, they killed a relative of Isaac’s who had been delivering supplies to the pharmacy. Isaac’s sister began to receive threats for harbouring him. He needed a way out.
A friend who had relocated to Belarus helped Isaac get a student visa to study in Minsk, where, as per his visa conditions, he took a Russian-language university course. But when the semester ended, he was required to pay to re-enroll. Isaac didn’t have the money or speak the language. He knew only one person there, and couldn’t tolerate the brutal winters. He moved on.
Isaac travelled to Lebanon, where an acquaintance sponsored him for a visa. Soon, however, she began to extort him by threatening to withdraw her sponsorship unless he paid her. But he couldn’t find a job, not even as a waiter. Isaac called his brother, a naturalised US citizen who lived in California, and the two of them agreed to meet in Mexico. To get there, Isaac needed a tourist visa, but for that, he needed proof of a job in Lebanon. A sympathetic Syrian Christian who worked at a shop in Beirut provided him with doctored papers. Isaac’s brother bought him a plane ticket. Forty-two hours and four countries later, Isaac landed in Guadalajara.
After a warm reunion, the brothers went over Isaac’s meagre options. Eventually, his brother encouraged him to come to the US, believing that he would qualify for protection. Isaac took a bus to the Tijuana-San Diego border, only to find it closed. Too many Haitians, the agents told Isaac. Take a number and come back in two months. Instead, he headed east to another official port of entry: Juárez-El Paso.
Modern refugee law was codified by the United Nations after the second world war, when countries grappled with the fact that they had turned away Jews and others fleeing persecution and death. To prove that they are a refugee and deserve asylum, a person must demonstrate that they have been persecuted on account of their race, religion, nationality, political opinion or membership of a particular social group. Isaac wouldn’t be a refugee if he had simply fled likely execution. He needed to prove that he had fled likely execution because he was Christian.
There is no jury in immigration court, and indigent immigrants are not provided with attorneys. The judge is the sole decider, bound by statute and precedent, but also free to exercise discretion in applying the law. Judges are tasked with assessing the facts and determining the credibility of a case that usually hinges on one person’s purported experience. Respondents can rarely produce eyewitnesses or police reports from a foreign country. Many cases, then, boil down to a few questions: can the respondent make a compelling claim? Can they secure a lawyer? And is the judge motivated to find a way to approve or deny?
Immigration judges have enormous power, but not much independence: they are not members of the independent judiciary, and do not practise in independent courts. They are executive-branch appointees, employed by the Executive Office of Immigration Review (EOIR), part of the Department of Justice (DoJ). An immigration judge, technically classified as a DoJ attorney, is paradoxically expected to act in a judicial capacity while following the orders of their superiors – a long chain of command, at the top of which sits the attorney general.
Currently, that office is held by Jeff Sessions, the former Alabama senator who has called the Immigration Act of 1924 – which limited the numbers of Italians, Jews, Africans, and Middle Easterners permitted to enter the US (while banning Asians) – “good for America”. Sessions is also in charge of appointing new immigration judges, the recruitment standards for whom are already murky.
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| A US customs and border patrol agent on the Paso del Norte International Bridge between |
The fact that this system has not faced a major overhaul is largely due to a lack of motivation and dearth of resources. “Congress is responsible for the immigration-adjudication system, and when there is political will to do so, they will reform it,” said Andrew Schoenholtz, professor at Georgetown Law. “Immigrants in removal proceedings don’t vote, and they’re not citizens. The interest groups that Congress responds to are not there.”
In the meantime, judges are working in a defective system that is also being crushed by an unprecedented number of cases. The DoJ has implemented policies aimed at hastening case dispositions, which, according to a Trac report, have had the opposite of their intended effect, pushing the backlog to an all-time high. Recently, the Trump administration decided that, with just over 350 judges facing more than 750,000 accumulated cases, judges will be evaluated on the basis of “numeric performance standards” – required to complete 700 cases annually, including complex asylum claims, to earn a “satisfactory” grade. Sessions argued that quotas would ensure “the efficient and timely completion of cases and motions”.
But immigration lawyers and judges have expressed concern that a quota system will put undue pressure on already overwhelmed judges and further threaten the rights of immigrants to due process. “The real agenda was never due process, but to remove as many migrants as possible, as quickly as possible, with little attention to fundamental fairness,” said Paul Wickham Schmidt, a retired immigration judge.
Under the Trump administration, the concept of due process has been further subjugated by a nativist ideology at odds with the American ideal of an open, egalitarian, multicultural society. (In February, the federal agency that issues green cards and grants citizenship changed its mission statement from a pledge to fulfill “America’s promise as a nation of immigrants” to a vow to adjudicate immigration requests while “securing the homeland”.) In June, following an uproar related to the administration’s separation of families at the border, Trump tweeted his thoughts: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
In El Paso, asylum seekers contend not just with a hostile administration and a problematic larger system, but with a notoriously unforgiving local adjudication apparatus. When I met with Isaac, he could remember only two people who had been granted asylum that year, and mentioned friends with whom he worked in the laundry room – from Iraq, Iran, Armenia, Bangladesh – who had been detained for two or three years.
Trac shows that for the past decade, the national average for asylum claim denials has hovered around 50% – so why is El Paso such a sharp outlier? I enlisted the help of Thania Sanchez, a Yale University assistant professor of political science, to analyse a government data set of more than 4m asylum cases from 1950 to 2014. We looked at the effects of having legal representation in El Paso, as well as the effects of the jurisdiction’s geography. (A border court is more likely to receive Mexicans and Guatemalans, Hondurans and Salvadorans fleeing gang or cartel violence – claims that are difficult to win because of the narrow criteria built into asylum law.)
On average, Sanchez found that asylum seekers from Mexico, Guatemala, Honduras and El Salvador – with and without lawyers – had a 7.8% success rate in El Paso, compared with 32.7% in San Francisco. Those from elsewhere in the world saw a similar disparity: 11.2% received asylum in El Paso, while 48.9% did in San Francisco.
But Isaac had the advantage of not coming from Mexico or Central America. He also had a lawyer – often a major factor in an asylum seeker’s success. Elsewhere in the country, his odds of being granted asylum, on average, were 46%. But in El Paso, his chances of success were just over 18%. El Paso’s denial rates are so extreme, Sanchez found, that something other than representation or nationality must be at work.
A primer on El Paso’s judges may suggest an answer. A 2007 study, Refugee Roulette: Disparities in Asylum Adjudication, found that judges’ rulings on asylum cases are influenced by factors like professional background. A judge who worked as an NGO defence attorney or in academia is more likely to grant asylum, while a judge who worked at the former Immigration and Naturalization Service (INS) or at an agency under the Department of Homeland Security, including ICE, is more likely to deny. Every one of El Paso’s seven judges spent years as a prosecutor for the government, most for ICE. According to their official biographies, none has represented an immigrant.
“It’s a culture of ‘no’, on steroids,” Olsi Vrapi, principal at the New Mexico and west Texas law firm of Noble & Vrapi, told me. “You have seven judges who are all naysayers, so if you come in as the eighth judge, you conform.”
Despite having plunged into what scholars call an “asylum-free zone”, Isaac held out hope. All things considered, he seemed to have the kind of case that could rise above the grim statistics. For one, he could prove that he was who he said he was. Judges are tasked with, among other things, ascertaining valid claims, which produces what Schmidt called “nightmare theory”. “There are two nightmares you can have as a judge,” he said. “One is that someone you deported was executed by a firing squad when he got off the plane. The other is you granted cases as part of a fraud ring. Which is worse to you probably says what kind of judge you’ll be.”
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| Tents on a detention centre in Texas next to the Mexican border |
Judging a true refugee can be especially difficult when a person’s identity is hard to verify. Many asylum seekers claim to have lost a passport on the journey– to robbers, the jungle, the sea, the river, the elements. Others come from countries with broken infrastructures, and so their documents, even if legitimate, are hard to validate. But Isaac arrived from Syria, a country with a relatively developed pre-war infrastructure. With the help of family back home, who mailed materials to support his asylum claim, Isaacwas able to produce a passport, a birth certificate, an ID card, high school and university diplomas, university records, a baptism certificate, a letter from his hometown priest (who called Isaac his “son in spirit” and asked that the reader “extend help to him according to his need”), a business licence and a military recruitment booklet that exempted him, yearly, until 2016, when he was ordered to report for service.
Asylum law was designed for someone just like Isaac – a targeted religious minority from a country in the midst of a civil war. Schmidt, who sat on the Arlington, Virginia, bench for 13 years, told me that in his experience, it was simple and expedient to grant asylum to a person who so clearly fitted the definition of a refugee.
More promisingly, Isaac was able to hire a lawyer, and a good one at that. Isaac’s brother hired Jessica K Miles, a 34-year-old Albuquerque native, who heads up the El Paso branch of Noble & Vrapi, working directly under Vrapi, arguably the top immigration lawyer in the area. Vrapi, who had been Miles’s law professor, hired her out of school in 2014, having seen in her, he said, “a rare passion and fiery resolve”.
Miles was aware of El Paso’s abysmal rates, which caused its attorneys no shortage of misery. (“We feel like such losers,” she told me, letting out a bitter laugh. “Probably because we’re always losing.”) But she was confident that she could win Isaac’s case. In addition to his verifiable identity, clean record, compelling narrative and personal appeal, Isaac had been assigned to the docket of William Lee Abbott, El Paso’s senior judge, appointed by Janet Reno, then attorney general, in 1995. A former INS attorney, cop and navy veteran, Abbott’s grant rate was just 5.4% between 2012 and 2017 – but it was the most generous in El Paso.
Among the dozen or so local immigration lawyers I spoke with, Abbott’s fellow El Paso judges were described, variously, as “rabid”, “cruel”, “brazen”, “outright racist”, “bombastic and vociferous”, “jaundiced”, and even “beady-eyed”. Abbott largely escaped these characterisations, with two lawyers telling me that he seemed to try to find ways to provide relief without giving asylum. Abbott was also said to have a tendency to be friendly to asylum seekers before refusing their claims; this often meant that when he issued a denial, as he usually did, it could feel like a crushing betrayal. (Like most employees of the DoJ, including sitting immigration judges, Abbott is not permitted to speak to the media.)
In late April 2017, Miles and Isaac appeared in Abbott’s small, wood-panelled courtroom inside the Camp. Abbott, a congenial man with greying hair and a bushy mustache, wore his black robes and sat before a DoJ seal, flanked by his clerk and an Arabic interpreter. Isaac, in his jumpsuit, sat at his own table, directly across from the judge. Miles and the ICE prosecutor, another young woman, faced each other from the sides of the room.
Miles argued that Isaac qualified as a refugee on two grounds: as someone persecuted because of his religion, and as a member of a particular social group, which she classified as “Syrian men subject to a conscription order who have fled the country”.
The prosecutor’s main argument was that Isaac was possibly lying, because it appeared that he had not been entirely consistent with his story. She presented a statement Isaac had made at the border, without an interpreter, during his first hours in the US. The three-page document, recorded by two unnamed CBP agents, tells a variation of Isaac’s narrative. The main facts are not terribly different from the story he would tell for the next year or so: he was attacked for his Christianity; fundamentalists and government soldiers alike targeted him; he was extorted, assaulted, threatened; and he fled. The prosecutor did not challenge Isaac’s Christianity or identity, but focused on inconsistencies over how he had obtained his visa to Mexico. The border agents had written that Isaac had obtained it “fraudulently”.
Reasonable people understand that those running for their lives are sometimes unable to go through official channels to get visas, or must lie to save themselves. (Asylum is, after all, meant for people being persecuted by their own governments.) Isaac had admitted to anyone who asked that he had never worked in Lebanon. “I had to do it because my life was in danger,” he explained in court.
“The border interview is not a modern practice,” Bradley Jenkins, an attorney at Catholic Legal Immigration Network, told me. “It’s a smoke-filled room. You don’t have counsel. It may or may not be interpreted. It’s rarely recorded, which is best practice with interrogations. It’s a transcript, and as we have occasionally seen, it’s not really a transcript at all. Some officers see what they can get away with putting in there.” In one well-known case, a verified transcript ostensibly reflected a verbatim interview with a migrant who admitted that he had entered the US to find work; upon closer scrutiny, it came to light that said migrant was a toddler.
Nonetheless, many judges give these statements serious consideration, casting doubt on an immigrant’s credibility because their story during a brief border interview, often not in their native language, is not precisely the same as their eventual testimony in court.
In Isaac’s case, the document was presented not as a transcript, but as an interview summary, conducted without an interpreter and reconstructed by the agent. Abbott seemed to dismiss the significance of Isaac’s admission that he had lied about having a job in Lebanon to obtain a Mexican tourist visa, and of the document itself. “Don’t have a heart attack yet, OK?” Abbott said to Miles, elaborating that he “might not be able to rely upon it in any way”, because it was “a one-sided agency report which provides information that the respondent may have said something slightly different about obtaining documents through maybe misrepresentation at the Mexican consulate in Lebanon”.
It seemed likely, then, that Abbott would actually grant Isaac asylum. “I probably have enough information in the record to make a positive decision if I can be assured that there’s at least a 10% chance of harm coming to him if he returns to that country,” he said.
Isaac and Miles left the court feeling optimistic. From then on, every day, at least once, Isaac called a 1-800 number for detainees and listened for an update. For nearly two months, nothing. Then, in early July, the system announced: “Order of removal.” He hung up and called back. “Order of removal.”
Isaac called Miles, who rushed to the downtown courthouse and requested a copy of the decision. She flipped through the first 10 pages outlining the judge’s reasoning until she found her way to the last page.
“Because respondent did not corroborate his testimony with reasonably available corroborative evidence regarding important facets of his testimony, along with making clearly inconsistent statements to various law enforcement entities over time, respondent has failed to meet his burden of proof … For these reasons, the court will deny his applications for relief in the form of asylum, withholding of removal and protection under the Convention Against Torture … respondent is ordered removed to SYRIA … ”
“It was like two different Abbotts,” Miles said. “Like the Abbott who heard testimony was not the Abbott who issued the decision.” She was overtaken by fear that Isaac would give up and allow himself to be deported – in which case, she was sure he would be killed.
Miles drove to the Camp, where she sat across a table from Isaac, who was disconcertingly placid. He did not blame her for the defeat. Rather, if there was any way to win, he was confident Miles would find it. If he was destined to be sent back to Syria, it wouldn’t be for her lack of trying. Miles offered to handle Isaac’s appeal for free. She didn’t want financial considerations to factor into his decision to try to save his own life. She told him to take a week to decide.
That night, Isaac lay in his bunk and thought about his situation. He loved Syria, at least as it had once been, and he hoped to return someday. Several immigration attorneys told me about detained clients who, despite having cases that might win on appeal and despite facing possible death or torture in their country, buckled when a judge denied their asylum claims. Hopeless, and unable to bear living behind bars indefinitely, they stopped fighting and went home. Indeed, part of Isaac wanted to take the deportation order, just to get out of detention, but he felt that if he were murdered upon his return, his parents would suffer too much. Two days later, he called Miles, thanked her, and said he would stay in the Camp and wait for a decision on the appeal.
During the hearing, the judge himself had admitted Isaac had a good case. Isaac had a top-notch private lawyer and ample evidence to support his claims. Plus, he fitted neatly into the definition of a refugee. And still, Isaac remained in custody. His loss, then, suggested a larger, mysterious problem with the El Paso system.
Immigrants find themselves in El Paso in several ways: they present themselves at the bridge, as Isaac did; are apprehended when sneaking across the border; are arrested during a traffic stop or raid and taken into ICE custody; are taken into ICE custody from a local jail; or are transferred from a facility in another district. Other immigrants are paroled or bonded out elsewhere and, likely unfamiliar with the jurisdiction’s dreary statistics, then move to New Mexico or west Texas; these unlucky individuals are required to have their hearings in an immaculate courtroom in the El Paso city centre, where they are heard by judges with denial rates above 97%.
But the detained population moves around, which offers accidental insight into the effects of judges. Detainees in the Camp and the West Texas Detention Facility, in the tiny town of Sierra Blanca, have their cases heard by the El Paso judges. However, some immigrants are funnelled to two other facilities: Otero, a remote, private New Mexico detention center, and Cibola, a former New Mexico state prison run by the private firm CoreCivic.
The immigrants who land in Cibola and Otero are largely from the same pool as those who go before El Paso judges, but their cases are decided by different adjudicators. In spring 2017, Sessions announced that in order to deal with the growing backlog on the border, he would send a “surge” of judges to briefly sit at border courts, including Otero. Meanwhile, when Cibola opened, its cases were piped to Denver judges.
If El Paso cases were uniquely without merit, and if the system makes claims of uniformity, the denial rates would likely be extreme. I received and requested 2017 government data on asylum cases for these two courts. Although the number of cases is too small to be statistically significant, they provide some insight into how judges’ decisions diverge from those of the regular El Paso judges, despite theoretically seeing the same population. At Cibola, where cases were heard by four Denver judges, the denial rate was some 47 points below the regular El Paso rate. At Otero, where cases were heard by visiting judges from across the country, the asylum-denial rate was 27 points lower than El Paso’s.
Isaac’s plight, then, was impossible to pin to particular case facts or factors. Rather, he was living the effects of a culture that developed over time, and that pervades zones like El Paso. In these areas, systemically low grant rates seem to stem less from the characteristics of each case and more from a damaged ecosystem. In El Paso’s case, deterrent CBP and ICE practices, combined with high rates of denial in a court staffed entirely by former prosecutors, most of whom had worked for ICE, appear to have created a self-perpetuating cycle.
“In most courts, people talk,” said Schmidt, the retired judge. “Judges have an idea of what cases their colleagues are granting and denying. If you grant cases, you give attorneys ideas of what winning arguments may be.” But if each judge only grants two asylum claims a year, there is no road map for how to win.
The apparent consistency of the ideology and work background of the El Paso judges also likely feeds into this cycle. Refugee Roulette suggests that one way to alleviate disparities between judges would be to have judges on either end of the asylum-denial spectrum speak with one another about their approaches to adjudication. “In El Paso, we lack a single dissenting voice,” observed John Benjamin Moore, an immigration attorney. “They hire only people from the prosecution.”
One could argue that the El Paso jurisdiction perceives itself as existing on the embattled frontlines of an immigration crisis. In April 2017, two weeks before Isaac’s case was heard, and some 300 miles west in Arizona, Sessions called the south-west border “ground zero” in the fight against “criminal aliens and the coyotes and the document-forgers [who] seek to overthrow our system of lawful immigration”. These people, surging into US territory, would, he stated, “turn cities and suburbs into warzones … rape and kill innocent citizens and … profit by smuggling poison and other human beings … It is here, on this sliver of land, where we first take our stand.”
Perhaps a culture fixated on purging “criminals and coyotes”, rather than protecting refugees, has become entrenched in El Paso. Immigration judges are not immune to the effects of that culture, which in turn could impact their adjudication of refugee cases from other parts of the world, causing a cascade of collateral damage.
Although he had decided to appeal, Isaac was resigned to his continued confinement, convinced that the entire immigration apparatus had conspired to place protection out of reach. In the meantime, Miles spent her nights and weekends researching and writing Isaac’s brief, an exhaustive 42-page argument. She enumerated the ways in which Isaac had presented credible and consistent testimony and evidence, highlighted the flaws of the border statement and dissected how the judge had erred, citing dozens of precedential decisions.
Miles doubted that Isaac would win asylum on appeal, because she couldn’t pinpoint how he had lost; she had been convinced that the original case was airtight, yet Isaac had been denied anyway. But she was compelled to do everything in her power. For her, it assumed the same urgency as fighting a death-penalty case for an innocent man. In October, she sent the finished product to the Board of Immigration Appeals (BIA), the national body of judges that decides immigration-related appeals and sets precedent for the courts.
In theory, the BIA exists to provide checks and balances, increasing consistency and reducing the possibility that judges are biased or making unlawful decisions. However, Schmidt, who headed the BIA for six years, said that to call the board fair and adequate would be reductive, and that immigrants and lawyers were right to doubt its impartiality. Of the BIA’s 16 current members, all have longstanding careers as government employees.
Another reason the BIA doesn’t provide a sufficient system of checks and balances is that many cases simply do not make it that far. According to a sweeping analysis of the system in The Failure of Immigration Appeals, published in University of Pennsylvania Law Review, this is largely due to issues of time and representation: some judges order immigrants deported quickly, before they are able to marshal resources, and almost no one appeals without a lawyer; the government, on the other hand, always has a lawyer ready, and can appeal easily. So there are many worthy cases that the BIA never sees. Still, Isaac had Miles in his corner, working on the appeal. He forged ahead.
Just after I left El Paso, I put $25 on a phone account so that Isaac could call me from the Camp, but we never had a chance to use it. The following week, Miles received a slim envelope from the BIA. She tore it open.
“The Immigration Judge’s adverse credibility finding is clearly erroneous,” it read. “The Immigration Judge did not question the respondent’s Christianity or nationality. Rather, the credibility finding was based on tangential issues regarding how the respondent obtained his visa.”
After more than a year at the Camp and a deportation order to Syria, Isaac had won asylum. He would be released and given lawful permanent residence and a work permit, and could eventually apply for US citizenship. Miles sped to the Camp. After she delivered the news, she and Isaac both awkwardly attempted to stifle their tears.
Within the week, once a final security check had cleared, Miles picked up Isaac from the Camp and deposited him at the El Paso Marriott, where his brother had booked him a room. Isaac ordered chicken wings and cake, and watched the Spurs, his favourite team since he was a teenager, lose to the Rockets. “But it’s OK!” he said brightly.
The next morning, Isaac’s brother, who had driven through the night from California, collected him. They had a quick Tex-Mex breakfast and called their parents in Syria. Isaac had not wanted to speak with them until he had been released, in case of something unexpected – a loophole, a mistake. But he was out now, in America.
“Are you sure you’re free?” Isaac’s father asked.
“I think so,” Isaac replied, incredulous. “I think so, but I don’t know.”
He was grateful for this second chance, but also daunted by the idea of starting over, with no car and no licence, and self-conscious about his English. He worked six days a week, often until closing, in a liquor store at a strip mall. In the mornings, he studied for his pharmacy-assistant exam. He planned to apply for a job as an aide at a drugstore, where he could answer phones, stock shelves and endeavour to learn as much as possible about American medicine.
In the meantime, his existence remained precarious. Two months into his new life, he accompanied his brother to the airport to pick up his sister-in-law. He was stopped, and because he did not yet have a state ID, he presented a form, which had a clerical error. He was held in the airport for hours until the authorities were satisfied that he had legal status. “Here in the US, there is democracy, but we still have fear,” he said. “I got asylum, but if they want to make a problem, they can do it.” He was terrified that the smallest misstep, no matter how apparently meaningless, how accidental or random, could signal the difference between freedom and imprisonment – and from there, between life and death.
To beat the extreme odds in El Paso, Isaac had spent 15 months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro-bono hours on his appeal. This feat required an enormous amount of translated, notarised evidence discreetly sent overseas by family members, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognised rights that are intended to protect the persecuted?
Other asylum seekers I had been tracking were less fortunate. “I think in El Paso, they want to see that people died,” a young Salvadoran told me. He was an Evangelical Christian who used to preach to local kids. Gangsters had shot at him with a machine gun, killing a pedestrian standing nearby, and had murdered his 15-year-old friend. The man, his mother and his brother made their way to the US. Despite having a devoted pro-bono lawyer, he lost his asylum case and appeal, on the grounds of credibility – the judge believed he was an economic migrant who had invented the threats. His mother also struggled to find legal relief in El Paso. “Maybe if I died, and then my mom asked for asylum, maybe then she can get protection,” he told me calmly. “They tried to kill me, but I didn’t die, so it’s not good enough for them.”
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