§3—Notice of Hearing
Jay Hardin, Realities of the Unseen, charcoal and digital print, 2017.
BY SHEFALI DESAI
The judge looks at the clock impatiently and says, “Counsel, you have five minutes to tell me why I should grant your client’s request for bond.” My heart threatens to stomp right out of my chest. There is an earthquake roar in my ears as cortisol-laced blood rushes past.
Mr. ICE-Attorney paid-by-federal-tax-dollars to argue against granting asylum to girls and women fleeing persecution in their countries of origin has just objected to my request that a bond be set in your case. Steely eyed, he had said, “the Department of Homeland Security does not believe Respondent should be permitted to post bond and be released pending her final merits hearing because she is a flight risk.”
He could have said but did not, “we always argue that.” Or, “my hands are tied. Ever since the new administration took over, we’ve been instructed to object to everything. It doesn’t matter whether the request is reasonable or if we have evidence to support our position.”
I take a deep breath to try and put myself back into my body. To be the flexing of vocal cords clear and direct, to be the expansion of lungs slow and steady, to be the muscles in legs strong and weight-bearing.
So much depends on this, the bond hearing.
***
After six months in detention, noncitizens detained on immigration charges are entitled to a bond hearing before an immigration judge. During this hearing, the government bears the burden of justifying continued imprisonment. Specifically, the government must show by clear and convincing evidence that a detainee is either a danger to the community or a flight risk in order for bond to be denied. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015).
***
Weeks earlier, you told me you wanted a bond hearing.
I counseled you that maybe it didn’t make sense to ask for one because your trial was scheduled soon after when you'd be eligible for bond. That perhaps it made more sense to focus our energies on your final merits hearing where the judge would decide whether to grant or deny your asylum application.
You looked at me for a very long time, then said you would do whatever I suggested. But moments later a spark came into your eyes and you said, “I have to get out of here or my life is over.” I didn’t understand and shot a quizzical look in Rosie’s direction.
“Maybe she means that if she can’t get out on bond she has no chance for winning her asylum case,” Rosie offered, first in English to me, then in Spanish to you.
“Yes!” you agreed, “no one who has their final case here gets out. They all get sent back. The Eloy judges never grant asylum.”
“How do you know that?,” I asked, incredulous, and Rosie, who has more street smarts than I do, answered matter-of-factly, “the inmates talk to one another, they all know how the judges rule.”
Finally, I get it. Bonding out of Eloy isn’t just about not being in prison when you’ve done nothing wrong. And it’s not only about not having, every day, to re-live the horrors you experienced when you were held captive by your persecutors. It’s about having a fair shot at asylum. If you’re forced to have your trial in Eloy, your chances for justice diminish.
Outwardly, I assured you that I’d file a request for a bond hearing as soon as possible. Inwardly, I screamed red wanting to slay the monster that keeps innocent, traumatized women in private prisons only to let them out to be sent back to unspeakable torture or certain death.
***
After the 2016 election, stock in CoreCivic, the for-profit corporation that runs the Eloy Detention Facility, doubled. By February of 2017 it had risen by 140 percent, leading to headlines like, “Thanks to President Donald Trump, America's private prisons appear to be entering a gold age.”
***
Today is the day I’ve spent weeks preparing for. Reading my argument outloud to the walls. Reciting it in my head during walks. Dreaming it in the middle of the night.
We have two major hurdles. One, the government’s attorney always argues against any bond amount. Two, even if the judge grants a bond, the chances of your being able to post it are slim. You have nothing and your family, who you can’t contact anyway for fear of putting them in danger, has no money to send you. You have one close friend in the United States who’s been like a second-mother to you and has agreed to be your sponsor should you get out. She’s offered to put money up for your bond but she cannot give much because she herself has very little.
On the day of your hearing, I rise early, walk long in the desert, whisper prayers to a sliver of moon lit up by the rising sun. A falcon, perched on a utility pole, lifts off as I approach and circles above me twice before flying towards the hot-pink horizon. I take it as a good omen. But I am wrong.
Rosie’s waiting for me when I emerge from the mouth of the Eloy security checkpoint. She and I are both dressed in suits, wearing professional demeanors that disguise the adrenaline coursing beneath our skins.
The guard at the desk asks, “What judge are you here to see today?” He’s friendly, and I’ve become accustomed, even glad, to see him week after week even though I don’t know anything about him. How did he get into this job? Were his parents immigrants? Does he ever feel sorry for detainees like my client? Does he care?
“Judge A,” I respond confidently. I’ve heard this judge has been known to give reasonable bond amounts unlike some of the other judges here.
Trying to suppress a grimace, the guard says, “Judge A isn’t here today,”
“That must be a mistake,” I say showing him the “Notice of Hearing” I received from the court.
The guard sighs and shakes his head, “Nope, Judge A isn’t here today. You’ve been assigned to Judge B instead.”
“How can that be? I didn’t get notice of any change …” but deep down I know that nothing proceeds as expected in immigration court or, as one attorney I know says, “it’s like the worst casino on earth, you always lose and there are no drinks!”
Another guard, hearing that we’re going to have a bond hearing in front of Judge B, smirks and says, “You thought you’d have Judge A who sets bonds about here,” he puts his hand at stomach-level, “but now you’ve got Judge B who sets bonds sky high!,” and he raises his hand a foot above his head.
I’m hit by the simultaneous urge to vomit and let loose my bowels. Rosie asks, “Can’t we do something about this?” Her words pull me back from the brink of freefall and my atoms coalesce to form a focused plan.
“We’re going to fix this,” I say, with conjured confidence. I ask the not-so-nice guard to take us to the clerk’s office without giving him the satisfaction of seeing the panic that’s spreading from one nerve ending to another.
But the clerk’s office is another exercise in futility. The woman behind the counter says my only recourse is to ask Judge B for a continuance, which is purely within the judge’s discretion to grant or deny.
We have no choice but to go forward with the court appearance. I cringe at the thought of having to tell you all this but when the guard brings you to us, it’s clear you already know. Your eyes are dull, your arms hang limply. You barely look at me when I speak.
I tell you we have two choices. We can ask for the hearing to be continued to another date when Judge A is available, but I can’t guarantee we’ll get a date before your upcoming trial. The other option is to go forward with the bond hearing today, but this greatly reduces your chances of getting a reasonable bond amount.
You shrug and tell me to do what I think is best. You revert to being the living corpse you became after your persecutors broke you. You do not cry, you do not rage. You are stoic in the face of forces that, once again, prove you are an irrelevant speck of dust blown by the whims of others. You have ceased to be you.
We file into the cramped courtroom lit by the same dim-glare fluorescence that depresses the entire facility. It gives Rosie headaches and threatens to turn me into a craven thing. From my seat in the pew-like benches, I see a large seal behind the judge’s head. It reads: “Department of Justice” and depicts an American bald eagle holding in its talons a bunch of quivers, a shield, and an olive branch. I’m flooded with the suicidal temptation to ask Judge B to take a good long hard look at that emblem. To rule as if it had meaning.
I’m still unsure which path to take when Judge B asks me to state my name for the record and requests that we enter exhibits into evidence without the court interpreter present because something’s wrong with the translating device.
I nod and the judge begins listing our exhibits. The translator walks back into the room, tells the judge he’s fixed the gadget, and motions for you to slip on the headphones you’ll need to wear throughout the hearing to understand what’s going on.
Judge B asks you if you’ve agreed to have me represent you today. You don’t respond. Judge B asks again with a hint of irritation. I look at you. You point to the headphones and shake your head. You say in Spanish, “It’s not working, I can’t hear anything,” and the translator translates this to the judge.
Judge B barks, “Why can’t you hear? We’ve been using it all day!,” as if you might be making this up even though it seems plausible to me that the device still isn’t working.
In that split second, I make my decision. I ask for a continuance and, perhaps glad to have one less bond hearing that day, Judge B grants it.
Outside, you start to sob. I try to soothe you saying I’m going to do my best to get a hearing date as soon as possible so that we have a chance at bond before your trial. You say that you’re not crying because you’re upset. You’re crying because “after what we’ve been through, we think no one will help us, that we are forgotten, but then we find people like you, I am crying because I am so grateful.”
Your words hits me like a wave, saturating me, threatening to knock me down. All I want to do is hold you and weep. But I can’t. My mind is racing and the clock is ticking. I hug you hard and promise to be back soon.
Turning to Rosie, I say we’ve got to file a motion for a new bond hearing right away but we don’t have access to a computer or printer. Rosie says the Eloy public library is only a few miles away and she’s got a library card. I follow her down dusty brown roads to a low-ceilinged cinder-block building that looks like it was built forty years ago. We sit down at an ancient computer that doesn’t do anything fancy, including pagination. Rosie dictates from my previous bond pleadings as I finger the grimy keyboard.
When it’s done, I pay ten-cents-per-page to print, handwrite-in page numbers, beg the librarian for a three-hole punch, then jimmy it into a two-hole punch so I can poke two holes at the top of the papers because immigration courts have arcane rules that if not followed can result in rejected filings. An hour later, I finally have three sets of copies as required.
I thank Rosie profusely and tell her to get on with her day. Then I drive back to the detention facility, file my motion, and ask the clerk’s office how soon they can schedule a bond hearing with Judge A. The same woman as before shrugs and says I should get a call later this afternoon.
The attorney waiting in line behind me, one whom I’ve seen here a lot, spats bitterly, “Everything here’s chaotic. It’s a mess. No one knows what anyone else is doing. I’ve had clients who shouldn’t have gotten out who did and others who deserved bond who didn’t. The only expectation you can have here is to be disappointed.”
His words trap me in an origami-like universe that offers up one gauntleted maze after another. I smile weakly and say, “Thanks for the words of encouragement.” He stares back at me with deadness behind his eyes.
***
Unlike federal court judges, who derive their powers from Article III of the United States Constitution, or even administrative law judges who derive their independence from the Administrative Procedures Act of 1946 and who are not evaluated by the agency in which they conduct hearings, immigration judges work for the Department of Justice. According to Justice Department rules, immigration judges are “attorneys whom the Attorney General appoints as administrative judges” to act “as the Attorney General’s delegates in the cases that come before them.”
“In a remarkable opinion, Judge Posner concluded that “the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice.” Id. at 830. Similar judicial criticism of immigration adjudications appears in a variety of other contexts. See, e.g., Wang v. Att'y Gen., 423 F.3d 260, 269 (3d Cir.2005) (“The tone, the tenor, the disparagement, and the sarcasm of the IJ seem more appropriate to a court television show than a federal court proceeding.”); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir.2005) (“[T]he IJ's assessment of [p]etitioner's credibility was skewed by prejudgment, personal speculation, bias, and conjecture․”). This circuit, too, has criticized immigration judges' decisions. See, e.g., Tewabe, 446 F.3d at 540 (faulting the IJ for giving “no cogent explanation based on common sense, the record, or any other relevant factor for disbelieving [the petitioner]”); Camara, 378 F.3d at 370, 372 (criticizing the IJ for “completely ignor[ing]” independent evidence and for “fail[ing] to follow the [agency]'s own regulations”).” Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir. 2008); see also Wang v. Attorney General, 423 F.3d 260, 267 (3rd Cir. 2005) (“Time and time again, we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings”).
When I was what society-at-large calls a “stay-at-home-mom,” I never actually stayed at home because alone in a house with young children, I was haunted by the ghosts of dead and dying babies, left-over specters from the post-traumatic stress and postpartum depression of my first son’s birth. Grasping at sanity, I collected mothers everywhere I went—from the public library to the grocery store to the park. An unintended by-product of this compulsivity was the formation of a tribe of women who saved me from drowning in anxiety and fear.
Driving back from Eloy after the bond-hearing-that-wasn’t, I grope for this safety-net, which has grown exponentially as my children have aged. I spill my guts about the injustice, the unfairness, the frustration of a wrecked system in a country we want to believe in.
The emptying of wretchedness into outstretched arms allows me to function within my routine for the next several hours, picking up the kids at school, feeding them snacks, washing dishes, while I wait on the tightrope of hope that the clerk’s office will call.
It’s almost four o’clock, which is when the immigration court closes, and still no call. I pick up the phone and dial. The man who answers says my motion can’t be scheduled for two weeks. But that’s too late, I protest, we’ll have our final hearing by then! I keep asking for another way, do not hang up, and remain calm by staring out the window at the point at which the blue sky kisses the tops of the Tucson Mountains.
I persist and eventually, he connects me to Judge A’s clerk. There is a kindness in her voice I haven’t heard in Eloy. She looks at the calendar, I hear the ruffling of pages, she thinks she can squeeze us in sooner. I thank her again and again and again until she says she has to go.
Two days later, I get the Notice of Hearing rescheduled in front of Judge A the following week.
***
“In response to a Congressional request to investigate asylum grant-rate disparities, the Government Accountability Office issued in September 2008 a report titled "Significant Variation Existed in Asylum Outcomes across Immigration Courts and Judges." The report concluded that after controlling for nine factors such as affirmative and defensive asylum claims, applicant's nationality, time period of asylum decision, and representation,‘disparities across immigration courts and judges existed.’ For example, affirmative applicants in San Francisco were still 12 times more likely than those in Atlanta to be granted asylum. Further, in 14 of 19 immigration courts for affirmative cases, and 13 of 19 for defensive cases, applicants were at least 4 times more likely to be granted asylum if their cases were decided by the judge with the highest versus the lowest likelihood of granting asylum in that court.”
***
“This is the bond hearing for A-Number [xxx-xxx-xxx], counsel please state your name for the record,” Judge A’s voice booms.
Now, it is my task to convince Judge A that you’re more than the nine digit Alien Registration Number they assigned to you when you crossed the border begging for help. I only have five minutes but it feels like an eternity during which I hold Judge A’s gaze, never once looking down at my notes, your story tumbling from my heart —
She was a girl, a daughter, when they took her and hurt her. When she went to the police for help, they sent her away. Then her persecutors came for her because she had snitched on them. They captured her, enslaved her, tortured her. Hideous things, your honor, things that will make you wretch. She got away but they found her again and tried to kill her. She barely escaped with her life. She came here seeking asylum. She’s never committed a crime. She has a strong case. She is not a flight risk. Detention is exacerbating her trauma. She cannot sleep at night and has awful pain. There is no reason to keep her here at taxpayer expense. And please your honor, don’t set the bond too high, she has no money and her sponsor can’t pay much.
— I finish, gasping for air. Judge A, wearing a poker face, asks Mr. ICE-Attorney if he wants to rebut. He does, saying, “I’m sorry to hear what she’s been through, your honor, but that doesn’t change our position that no bond should be set.”
Judge A looks at me hard then says, “I am awarding bond in the amount of $$,$$$.” My insides curdle. This bond amount is more than double what we asked for and double what your sponsor can pay. But it’s also not the outright denial of bond requested by the government.
You start to say something, Judge A flashes you an imperious look, I squeeze your arm gently, your voice evaporates. The decision has been made, there is nothing that will change it now.
***
In October 2017, the Ninth Circuit directed all immigration officials, including immigration judges, to consider a detainees financial ability to pay when setting bond amounts. Hernandez v. Sessions, No. 12-74218 (9th Cir. 2017). To date, the judges in Eloy continue to set bond without adhering to this standard.
***
What happens next, I do not expect. An ocean of generosity rises and folds you in its embrace.
One friend, sick in bed with the flu, goes to two separate banking locations to withdraw large sums of cash. A second friend watches my children while I arrange to transfer donated bond funds to your sponsor who must pay the entire amount at one time in one place. A third friend offers to host you before you catch a Greyhound bus to your sponsor in another state. An entire tribe of family, friends, neighbors, former professors, immigration law clinic mentors, and of course, Rosie, is cheering you on.
You get out of Eloy the next day and walk past the last barbed wire fence dazed by the brightness of a world you never dared to consider. You keep hugging me and smiling the biggest broadest smile I’ve ever seen grace a human face.
You know this is not the end, that there is still a long road ahead. But for one crystalline moment, you are free.
Shefali Desai is a child of the Sonoran Desert, daughter of Indian immigrants, mother of sons, lover of the earth, and a fighter/writer/lawyer. She has been a Rhodes Scholarship finalist, Arizona Supreme Court law clerk, and VONA fellow. Her book-length manuscript was selected by Lidia Yuknavitch as a finalist in the 2016 Kore Press Memoir Competition, and her work has been published widely including in Ms. Magazine, the UCLA Women’s Law Journal, Kartika Review, and the anthology This Bridge We Call Home.
Shefali currently is co-authoring a legal paper on federal and state regulatory power over so-called sanctuary cities, litigating an asylum case, and finalizing a hybrid memoir. Her six-part series for Corporeal Clamor titled “ASYLUM” is a blended legal/personal/lyric essay that layers the law with lived experience. Shefali lives in the painted hills of Tucson with her partner and two sons.