We first told him we couldn’t take his case because he had no chance of winning, so ethically we couldn’t take his money. Most people in deportation proceedings have few if any options to stay in the United States through the immigration courts. I urged him to take voluntary departure, which enables people to leave the country without getting a deportation order on their records, so it is easier to come back legally in the future. But he told me he was certain that, if he could just tell the court his story, the judge would see that letting him stay was right and just and fair. I told him that our immigration system had many rules and laws, but little or no justice.
In truth, I think José knew he had no chance, and he knew he’d have to leave. But he didn’t want to leave quietly. We agreed that I would accompany him — I wouldn’t say “help,” because he could have realized his plan without me, and I didn’t charge a penny — but he would address the judge directly. One of the most important things I do as an attorney is to just be present. Since the immigration laws are so defective, and the judges often play by their own rules (routine bond requests are usually denied, and this Georgia court has one of the lowest approval rates for asylum cases in the country), and the detention/deportation centers are designed to break people’s spirits, often there is not much else that can be done. Based on what transpired, I’m glad I went.
José’s whole family came to support him — his wife and his kids and a friend. When we sat down at the bench, I told the judge that José would be speaking for himself. In immigration courts, migrants usually just answer questions, so the judge asked me if I was requesting to withdraw. I said I wasn’t: I was staying at the table, but José was going to do all the talking. And the judge, to his credit, heard him out.
The judge explained the law and what José would have to prove in order to win. Before hiring us, José had submitted an application, on his own, for “cancellation of removal.” There are four elements: He had to prove that he had been living here for more than 10 years, that he was a person of good moral character and that he hadn’t broken any laws that would bar him under the statutes from applying. José could show all of these things. But the fourth criterion is the hardest. José would have to prove that if he were deported, it would cause an “exceptional and extremely unusual hardship” to a spouse, parent or child who is a U.S. citizen or lawful permanent resident. Usually it means you have a child with cancer, or a spouse with a disability that makes them unable to work or support a family — something on that scale. If you can convince the court merely that your family would be made homeless or that your children would subsist on food stamps, that is not considered sufficient. That is just the usual hardship that deportees’ families experience.
Without missing a beat, José said to the judge, “I have the first three, your honor, but I do not have the fourth.” Turning around to look at his family, with obvious pride, he told the judge: “This is my family. These are my children. Everything I do, I do for them. But thankfully they are all healthy, which for the moment seems for some reason to be bad.” Truly, logic has no place in immigration court.
The judge said that, based on this testimony, he would have to deny his application for cancellation of removal. Still, the judge offered José voluntary departure and explained, as I had, that it would make it easier for him to return.
I had met with José’s wife, Maria, too, and explained “VD,” which is a safer option than exiting the nation through the usual deportation machinery. People who are deported to Mexico from Stewart and many other detention centers are just dumped on the border, where gangs await them. (People deported to other countries are flown.) They are often robbed, kidnapped, raped or killed. Those who take VD, on the other hand, don’t get to leave jail, but they fly back on a regular commercial flight.
The problem with voluntary departure, though, is the cost: You have to buy your own fare, and it is very expensive, currently around $1,250. Immigration and Customs Enforcement will accept only a “Y” class ticket, or a full-cost coach fare, which can often cost more than first class. José thanked the judge and declined. “The tickets cost a lot of money, and my family will need the money after I leave.”
Maria interjected, crying. “Take the voluntary,” she said. “Take the voluntary!” My client began crying, too, followed by his kids.
I decided to take a chance. I asked the judge if José could talk to his wife over the barrier. Any direct communication and especially physical contact is strictly forbidden in this courtroom. To my surprise, he agreed. So Maria came forward, and she and José started hugging and kissing and crying. The bailiff moved to intervene, but I just shook my head and mouthed the word “Please.”
The couple talked for a few minutes, and then José sat back down and offered that he would take voluntary departure. But he’d gotten to hug his 6-, 8- and 12-year-old children across the barrier. Imagine that. Humanity in what passes for a court. This is not usually how immigration cases go. The judge gave José 30 days to buy his ticket before he would lose the “privilege” of taking VD.
In the end, José sat there smiling. And proud. He was still smiling as his family left the courtroom. And smiling when he gave me a hug. He’d known all along he wouldn’t win, but he wanted to be able to call out the injustice. And the judge, who has low rates of approval for just about anything, heard him out. (Only 31 of 347 judges denied asylum claims at a higher rate, according to the Transitional Records Access Clearinghouse.) It wasn’t a victory, exactly. José wouldn’t be staying with his family. But speaking a truth, to a hostile power, is still a kind of achievement.
But it was a discordant one for such a ruthless corner of the law. And eventually the logic of our immigration system superseded his brave act.
This past week, according to a friend of his who called me to share the news, ICE came to his cell early one morning and said it would fly him to Mexico City; he wouldn’t even have to pay for his ticket. Then, that afternoon, officials came and handcuffed him, brought him to a room to wait with other detainees for several hours and deposited him on a bus. Not to the airport, as they had promised. They drove him to the border and dumped him out in Matamoros. I am looking into his legal options, because apparently no act of courage goes unpunished.