Elsewhere there’s a long read on the US’s notorious El Paso Processing Centre, as seen through the eyes of a Syrian asylum seeker.
A Syrian refugee seeking asylum in the US was unlucky enough to try to enter at El Paso, Texas
When Wassim Isaac, a pharmacy owner in his home country, crossed from Mexico into El Paso jurisdiction in 2016, little did he know he was entering one of the worst places in the US to seek asylum.
The El Paso Processing Centre, informally known as the Camp, is a sprawling, walled compound of cinder-block buildings and trailers tucked between the landing strip at El Paso International airport and the Lone Star golf club. The camp houses around 800 immigrants at any given time – some awaiting deportation, some 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.’”
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.
Local activists and lawyers contend that asylum seekers in El Paso also face bleak circumstances on other fronts, including limited access to legal help, a lack of translators for non-Spanish speakers, and inhumane conditions at CBP and Ice holding facilities. Compounding this pattern is the volume of cases at hand: between 2000 and 2018, El Paso had the nation’s third-highest number of detainees in immigration proceedings. As Carlos Spector, an El Paso immigration lawyer, put it: “As an asylum seeker, you descend into hell by coming here.”
At the Camp, the thermostat always hovers around 20C. 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 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.
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: 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 or the future. “I have my life here; I have to live,” he told me. “I can’t compare my life before and my life now.”
Modern refugee law was codified by the United Nations after the second world war, when countries grappled with
‘Immigrants don’t vote, and they’re not citizens. The interest groups that Congress responds to are not there’
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, but are executive-branch appointees, employed by the Executive Office of Immigration Review (EOIR), part of the Department of Justice (DoJ). An immigration judge 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, 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.
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 School. “Immigrants in removal proceedings don’t vote, and they’re not citizens. The interest groups that Congress responds to are not there.”
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 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.
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.
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. Others come from countries with broken infrastructures, and so their documents are hard to validate. But Isaac arrived from Syria, a country with a relatively developed pre-war infrastructure. He was 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, a business licence and a military recruitment booklet.
Asylum law was designed for someone just like Isaac – a targeted religious minority from a country in the midst of a civil war. Paul Wickham Schmidt, a retired immigration judge 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. 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. But she was confident that she could win Isaac’s case.
In a small, wood-panelled courtroom inside the Camp, 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 in Syria 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. Isaac had admitted to anyone who asked that he had obtained a fake proof of employment to get into Mexico. “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. 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 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, that 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 spite of this, the judge seemed to regard Isaac’s case favourably. Isaac and Miles left the court feeling optimistic. From then on, every day, 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 … ”
Miles drove to the Camp, where she sat across a table from Isaac. 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. 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, 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 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 Otero, a remote, private New Mexico detention centre, 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.
I received and requested 2017 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. A 2007 study, Refugee Roulette: Disparities in Asylum Adjudication suggests that one way to alleviate disparities between judges would be to have judges on either end of the asylum-denial spectrum speak to 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 frontlines of an immigration crisis. In April 2017, two weeks before Isaac’s case was heard, and some 480km 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 could impact their adjudication of 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.
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, 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.
After his release, Isaac’s existence remained precarious. Two months into his new life, 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.” He was terrified that the smallest misstep, no matter how accidental, 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 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, 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 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.”
‘Maybe if I died, and then my mom asked for asylum, maybe then she can get protection. They tried to kill me, but I didn’t die’
Asylum seekers at the Paso del Norte International Bridge, in Ciudad Juárez, Mexico on the border with El Paso, Texas. Right, an Ice detention facility in Willacy County, Texas
No refuge Detention centres like this one in California line the southern border of the US
Cut off Few of those held in immigration centres have the documentary proof or financial and practical support to fight their cases