Rolling the Dice on Deportation

AP Photo/Juan Carlos Llorca, File

An unidentified Guatemalan woman stands inside a dormitory in the Artesia Family Residential Center, a federal detention facility for undocumented immigrant mothers and children in Artesia, New Mexico. 

For the last three months, Jesus Peraza has been unsure which would come first: the birth of his third child or his second deportation. Now he knows.

U.S. Immigration and Customs Enforcement (ICE) plans to deport him.

“Jesus feels as if he’s been caught up in some awful lottery,” says Jared Jaskot, Peraza’s attorney. Peraza was arrested by ICE agents after dropping his son off at school in southeast Baltimore, nearly 20 miles from the Howard County Detention Center, where he has been kept since March.

Under the immigration procedures established by the Obama administration, someone like Peraza, whose only criminal offense is illegally reentering the country after being deported as a teenager, would have been an unlikely candidate for detention and deportation. Not anymore.

Donald Trump’s shift in enforcement priorities and anti-immigrant rhetoric has injected added uncertainty to an already Kafkaesque immigration and asylum system. Like countless other undocumented immigrants, Peraza might see his family torn apart by the changes.

“We’re seeing a return to an enforcement strategy that lacks any clear prioritization and an extreme shift in rhetoric,” says César Cuauhtémoc García Hernández, an associate professor at University of Denver’s Sturm College of Law. “The goal is to instill fear.”

According to Peraza’s attorney, it was fear that drove his client, back in 2004, to drop everything and leave his home in the city of San Pedro Sula in Honduras. One day, the then-17-year-old Peraza headed out to get lunch, saw a man shot and killed in broad daylight, just steps away from him. He quickly became a target of intimidation after being questioned by the police. His lawyer claims that two men attacked him in an alley a week later. Peraza did not need any more warnings. He fled to the United States.

Immigration authorities arrested Peraza shortly after he crossed the border.

The United States has its own complex immigration and refugee laws, but also adheres to international asylum laws that were ratified by the United Nations in 1951. To qualify for asylum individuals must prove that they are being persecuted because of their religion, nationality, ethnicity, social group, or political beliefs.

Those categories do not cover many of the reasons why asylum seekers flee their homelands today. “The definition of refugee was basically created by white men for white men,” says Jason Dzubow, a Washington, D.C., immigration lawyer. “The [United Nations] treaties weren’t meant to cover LGBTQ people, women who suffer from domestic violence, or those forced to flee because of crime or violence.”

Dzubow says that this situation has forced lawyers and judges into uncharted territory, debating who should and who should not be considered part of a persecuted class in the nation’s 54 immigration courts. Determining who qualifies for asylum requires considerable work by immigration judges who have huge caseloads and anemic resources at their disposal. At the end of April, there was a nationwide backlog of more than half-a-million immigration cases, according to Syracuse University’s Transactional Records Access Clearinghouse—an all-time high.

With little time to understand a case and laws that do not fully address the current circumstances of many asylum seekers, many judges use their own discretion to determine if a person qualifies for asylum, a practice that can add a degree of arbitrariness to the system. An asylum seeker’s fate may be determined as much by who the judge is and where the court is located, as by the merits of their case.

The system has turned into “refugee roulette,” a phrase first used in a 2008 Stanford Legal Review study of asylum decisions. When researchers looked at 140,000 decisions by immigration judges, they found striking disparities: One judge, for instance, was 1,820 percent more likely to grant relief to an asylum seeker than another judge in the same courthouse; and one federal appeals court was 1,148 percent more likely to rule in favor of an asylum seeker than another court that ruled on similar cases.

“If we want to decrease these disparities, there needs to be more funding for courts, better training, and greater integrity in the hiring process for judges,” says Jaya Ramji-Nogales, a Temple University law professor and a coauthor of the “refugee roulette” study. “The system is approaching a breaking point.”

Applying for asylum can be a labyrinthine nightmare for people who don’t speak English and cannot find an attorney. Many detained asylum seekers don’t fully understand their rights or the next steps that they need to take.

Dzubow says he has personally witnessed asylum seekers with otherwise solid cases denied relief because they were unaware of certain deadlines. “Immigration officers won’t tell you that there’s a one-year deadline for asylum application,” he says. “You have to know what you’re doing; it requires a knowledge of the asylum law application process.”

“It happens all the time, unfortunately,” he adds.

Unlike criminal cases, most immigration- and asylum-related cases are settled in civil court, where defendants are not entitled to a government-appointed lawyer. That can make a world of a difference for someone trying to avoid deportation.

An undocumented immigrant who has a lawyer is 10.5 times more likely to receive a favorable court decision than a person without a lawyer, according to a 2015 University of Pennsylvania Law Review study. According to the report, which analyzed over one million deportation cases from 2007 to 2012, only 14 percent of undocumented people who were detained secured representation.

During his first detention, Peraza was not one of the lucky ones. Instead, when he fled to the United States, he was held in a detention center for a few months until he turned 18, and then deported back to Honduras in 2005.

“Had Peraza been represented by a lawyer when he was first detained, he could have applied for special immigrant juvenile status and likely been allowed to stay in the country,” says Jaskot.

By the time he was 20, Peraza was back in the United States, now with a previous deportation on his record. After crossing the border, he made his way to Baltimore, where he eventually married and fathered a son.

Treatment of asylum seekers at the southern border has recently attracted scrutiny from human rights advocates. Border agents allegedly have refused to process asylum seekers, according to a recent report by the nonprofit organization Human Rights First (HRF), leaving them vulnerable to smugglers and drug cartels that control the area.  

Several months ago, HRF and other nongovernmental organizations raised concerns about refugees being turned away illegally. That practice increased after Donald Trump’s election and jumped again after his inauguration. The HRF report cites dozens of cases of Customs and Border Protection (CBP) officers turning asylum seekers away. One officer told an individual, “Trump says we don’t have to let you in,” and another that, “[Christians] are the people we are giving asylum to, not people like you.”

“After the election, we began to see a certain amount of freedom among [CBP] agents at multiple ports of entry,” says Shaw Drake, coauthor of the report. “Agents feel they can go about these practices with impunity.”

Since there are no hard numbers available on how often asylum seekers get turned away by border agents, it is difficult to calculate exactly how many people have been affected. The HRF report examined more than 100 incidents of asylum seekers being turned away illegally between November 2016 and April of this year. Drake believes that the practice is probably much more widespread, given that most asylum seekers don’t usually end up making contact with a lawyer or an advocacy group.

Last month, during a congressional hearing before the Senate Judiciary Committee's Subcommittee on Border Security and Immigration, Ronald Vitiello, the acting CBP deputy commissioner, responded to the HRF report, saying that the matter was being investigated by the Department of Homeland Security’s Office of Inspector General. He reiterated that border officers are required to process and refer those expressing fear of return to their country, and that there would disciplinary actions for any officer who failed to do so.

Although Trump has acknowledged the country’s legal obligations to asylum seekers, that’s certainly not the tone that the president strikes. “Rhetoric plays a huge part in the actions of frontline agents,” says Drake. “It’s not unreasonable to think that anti-immigrant rhetoric from this administration has had an effect.”

For detained people who don’t qualify for asylum, most roads lead to deportation. Trump’s January executive order made any person who’s crossed the border illegally fair game, regardless of their criminal record.

“Since relatively few people are no longer considered a priority, it’s harder for lawyers to make the case that deportation isn’t appropriate,” says Cornell Law School professor Stephen Yale-Loehr.

In Peraza’s case, the chances of his being able to remain in the United States were always bleak. It’s not clear what will happen to his family. His eldest son is also a Honduran national, but his youngest son was born in the United States. His pregnant wife, who is from Guatemala, is also undocumented.

Had Peraza, the sole breadwinner for his young family, made contact with a lawyer when immigration officials detained him the first time he crossed the border, he would have likely not been deported. Had he not been deported, he would not have a previous order of removal on his record and likely not been targeted by immigration agents in the first place. In the refugee roulette, there are always losers.

“It was a question of straight luck,” says Jaskot. “Bad luck.”

For Peraza, who’s been ricocheting around inside the immigration pinball machine for months, there was only one bumper left between him and deportation. Through Jaskot, Peraza made the risky decision to pull his case from immigration court and petition ICE directly to let him stay in the country. Jaskot acknowledged that it was a gamble. “We just have to hope that ICE does the right thing,” he told The American Prospect last week

ICE saw Peraza’s case differently. The official in charge of the case ruled that there was no compelling reason to grant the stay. Peraza, who is now subject to immediate deportation, will be escorted back to Honduras for the second time.

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