The U.S. Southern Border Predicament: From Border Wall to Dysfunctional Immigration Court System

July 31, 2021

Vice President Kamala Harris’s recent trip to Central America, during which time she spent two days in early June examining the causes of immigration from originating countries, came after years of investment and a political campaign to build a border wall during the Trump presidency failed to produce results. Convincing Central American leaders to work with Washington demands long-term regional cooperation policy on issues that are forcing local populations to flee their homes as a desperate last attempt to survive. But immediate attention should be directed toward serious agency and institutional obstacles within the U.S. asylum system, which are causing preventable backlogs and delays to processing those arriving at the border. These obstacles hinder the improvement of border security, cause humanitarian crisis, and victimize eligible asylum-seekers, whom the U.S. has legal and international obligations to protect. The following transcript is taken from the recorded interview between Tony Schwalm* exclusively for The Sentinel Post and Molly Molloy.* Ms. Molloy’s interview provides a relevant, first-person accounting of the experiences asylum-seekers find themselves in at home, and once they reach the U.S. southern border.

Tony Schwalm:  Molly, how do you find yourself in this current position:  observing the border the way you do, with this massive following on the Frontera listserv?

Molly Molloy: Actually, I started participating in the Frontera list in the 1990s when I was first at New Mexico State University in Las Cruces. There was a group of people, many of them in El Paso, but also from all over, who were interested in what was going on at the border at that time. And that was the era of the effects of NAFTA (North American Free Trade Agreement), the changes in the economy, people coming to the border in places like Juarez to work in the maquiladora industry, the inequalities in pay between workers on each side of the border, and the displacement of farmers in Mexico. And there was also growing awareness of violence in Ciudad Juarez at that time, especially violence against women. And so those were some of the things that were discussed. I think there were maybe 50 people on that original Frontera list. And then I took over hosting the list after one of the other participants left the institution where he was. And I maintained it for a while, and it was pretty low-key. There wasn’t that much interest. And then in the early 2000s, things started to heat up with the first hotspots of violence along the border.

The really intense drug violence in 2004-05 was in and around Laredo. Then, a lot more people became interested and started subscribing. After that, the next big uptick in membership and interest was in 2008 when the violence broke out in Ciudad Juarez. And it was like nothing we had seen before. Everything else seemed small by comparison, and that interest really continued all the way up until today. At one point, around June 2010, a reporter from the Wall Street Journal was very interested in the Frontera list, and she came down to Las Cruces and interviewed me. After the article was published, more people contacted me.  That year, 2010, was the worst year in Juarez – at one point, more than 300 people were murdered in a single month in Ciudad Juarez. Ten people a day easily. And more people started subscribing, and people continue to subscribe. I think the last time I looked there were about 1,600 subscribers. I still keep tabs on the murders in Ciudad Juarez. Last year, 2020, there were about the same number of murders in Juarez as there had been in 2008, which was the first big year of what I call hyper-violence. And it’s not going down – it’s continuing to slowly creep up. It’s not starkly increasing as it did in 2008 and the years after that. But it’s never gone down. You know, since that really hyper-violent period, there was a brief lull. In 2013, 2014, and 2015, it went down to about 500 people per year, but then it started climbing up again. Last year there were about 1,600 people murdered. And that’s just in Ciudad Juarez, which is not a large city. Ciudad Juarez has about 1.5 million people – labeled as a CRITICAL-threat location for violent crimes by the U.S. Department of State in 2020. But the violence is hardly mentioned, now, other than just as a general undercurrent. I’ve come to look at it almost like an epidemic, that there was a huge epidemic of violence that spiked in the 2010s, and then it went down and then started rising again. And now it’s like an endemic disease, really, of the society.

Tony Schwalm: So the violence is like a new normal there. Talk to us about the people who reject the new normal, who are fleeing that violence and its effects on the economy and life in general. Can you talk about any cases of immigrants seeking asylum who you have assisted?

Molly Molloy: Sure. I’ve worked with many asylum seekers over the past several years here in the border region. The two cases I want to talk about are both from the late-Obama/early-Trump era. One of them, we got the case in December 2016. And she was detained from that time period up until September 2017 when she was released. I will call her Sonia, but that is not her real name.

It was a case that was referred to us by a federal public defender here in New Mexico because Sonia was prosecuted for having crossed the border illegally, I think, three times. And so she was given an actual prison sentence of a month or something like that. Generally, people are given time served. But she was given a little bit more time. The public defender talked to her quite a lot, and the public defender knew the attorney I work with. She referred this case to SAMI, and we went out to visit Sonia. We talked to her for the first time around Christmas 2016. Sonia is from El Salvador. She was 22 years old when we met her. She and her mother and a sister had worked in their little village in El Salvador, and they were poor. They weren’t destitute, though. They were hard workers. Her mother ran a cafeteria out of their home and then a gang started moving into the area. They started extorting all the small businesses in the area, including this family’s cafeteria. And so basically, Sonia’s family didn’t want to deal with the gangs.

So her family just shut down their cafeteria and tried to live by just preparing food in their home and selling it at night. It wasn’t open for business like a little restaurant. Sonia was still in school at that time, and she completed technical school, basically a high school education, in 2013. But things kept getting worse. The gang gained more and more control in the village and in the whole area. Eventually, there was an incident where Sonia’s house was broken into and ransacked when the family was gone. Various other things like this happened, and then one day when Sonia was doing laundry at a public laundry area in the village, she was accosted by the gang leader. She was busy washing, and by the time she realized that these gangsters were there, all the other people had fled. So she was alone, and these guys grabbed her. The gang leader beat her and raped her very brutally.

Sonia wrote about it in a way that was really, really heart-wrenching. I mean, she’s a good writer. She’s well-educated and writes very well. I basically just translated it verbatim, and it was extremely expressive. I can read this one paragraph from her written statement:

“He began to touch me, took off my clothes, he threw me to the ground, I wanted to die. When he finished doing these filthy things to me, I felt like I was dying from the pain in my soul and in my body, he told me that now I belong to him and that for a long time he had been waiting for this moment to make me his woman, according to him. This terrible man robbed me of my innocence in the cruelest manner; with him, I lost my virginity.”

Sonia’s family already had a lot of people living in the United States, and they’re all women. It’s a family of mostly middle-aged women with young teenage children or young adult children. Her aunts who are in the United States gave her the money to try to make the trip.  On the first trip she made, she was picked up at the border, detained, and signed the deportation order without even knowing what she was signing. She went back to El Salvador and tried to stay in hiding for a while to make sure this gang member didn’t find her. She went to another part of El Salvador. As you know, it’s a very small country, and essentially the Mara Salvatrucha (MS-13) gang controls one part of the country and the Mara 18th Street gang controls other places. It’s almost impossible to escape them.

And so, this young woman went to a different place and was able to get a job in a store. And she tried to support herself for a while. But eventually, one day she was at the little store, and this young man came in who she recognized as being one of the people who worked for the gangster who had raped her. And he basically told her that if she didn’t go with him to be with this guy and join the gang, they would kill her. They would deliver her body in pieces in a black plastic bag to her mother. And she knew that they had the power to do that because she had already been, you know, as she said, destroyed body and soul by this man. At that point, she made another plan to escape. She left and stayed for a couple of months with a relative in a more distant village and then eventually got the money from the relatives in the U.S. and made the trip again.

She crossed somewhere near Juarez. And when she was detained this time, she was charged not just under the immigration laws, but was prosecuted in federal court because of her multiple reentries. And that’s when the public defender from here in Las Cruces was assigned to her case. This public defender is a very good lawyer, and when she talked to the girl, she realized that Sonia’s story might qualify her for asylum or for some other immigration relief. And that’s when SAMI got the case. We met her in December 2016 and started working on her case. Trump takes office in January 2017 and there’s a lot of crazy stuff going on at the border with people being in detention and with the immigration courts. You might remember at one point there were a lot of judges who were assigned to the border. The idea was that these judges would hear all these immigration cases and try to get rid of the backlog. Sonia’s first hearing was probably in February 2017, but she ended up with three different visiting judges between her first hearing and September 2017, when her full asylum case was finally heard.

REUTERS/Evelyn Hockstein

We worked hard to prepare Sonia’s case. She had described several other killings in her village that were attributed to this gang. And one of them was the killing of a young woman who Sonia named. We were able to find an article about this murder in a Salvadoran newspaper online. Sonia had said that the young girl’s name was Mery (not her real name) and Mery was murdered basically for the same reason Sonia had been threatened. She didn’t want to go with the gang leader, and they had gone to her home and killed her. And we were able to find the story in the Salvadoran press and translate it. In other words, it was in Sonia’s handwritten declaration, but we were able to document that this happened in the place where she said in her village and by the same sort of modus operandi.

When I wrote her declaration for her asylum application, we put links to those articles and the translations of those articles into the declaration showing that we were doing our homework. We were investigating.

Another critical piece was a friend of mine, an acquaintance who was a retired immigration lawyer. Back in the 1990s, he met and married a Salvadoran asylum seeker who was eventually sent back to El Salvador.

He had lived in El Salvador for eight or nine years at that time. He had retired and lived in a fairly large town that was close to Sonia’s village. He did some work for us on the ground. He found Sonia’s mother and got more documentation about what had happened to the family.

Then we got another break. He and I both knew a woman who had been an activist during the Salvadoran Civil War. Her husband was a human rights activist who had been murdered in 1980. She became a lawyer and activist and eventually a high-ranking judge. And so through these personal connections, we arranged for this American lawyer and this retired Salvadoran judge to testify for this young woman. And they did. They came to Sonia’s court hearing, and they testified.

One of the things she said in court that I think really swayed the U.S. immigration judge was that she knew many young people like Sonia. There is no escape for her. The gang, the gang members, the gang leaders just take over a territory, and they become the law in these places. And there’s nowhere for these people to hide. There’s nowhere for these young women and young men to hide.

The U.S. immigration judge hearing Sonia’s case was impressed with the retired judge’s testimony, and he listened to about six hours of testimony.

In his decision, he said, “I believe that the gangs are the de facto government in this region in El Salvador.” And by saying that he is saying that the government is her persecutor, and the government isn’t going to do anything about this violence.

He granted Sonia the only thing that she was eligible for, which was withholding of removal. Because Sonia had previously been prosecuted in federal court for having crossed the border three times without permission, she was not eligible for asylum. But she was eligible for withholding of removal, meaning that she’s not on a path to citizenship, but she also can’t be deported to El Salvador. This case took a heck of a lot of work and almost nobody gets that kind of representation.

Tony Schwalm: Let’s just try to put what you told us into the perspective of a more open aperture. We’ve looked through the soda straw at Sonia. How much of the population does she represent? How large of a population does she represent on any given day across from Tijuana to Brownsville?

Molly Molloy: She was Salvadoran. And I would say there are thousands, maybe upwards of 8,000 or 9,000 Salvadorans, who get apprehended at the border in any given year. Guatemalans account for maybe 20,000 to 30,000 asylum seekers apprehended. Most will apply for asylum, but many will not even know that’s an option. I mean, they may know the word “asylum.” They may ask for it, but they don’t have the ability to get an attorney. Consider the amount of work that went into this young woman’s case. If she were represented by an immigration attorney who was charging a normal fee, it would have been probably $20,000 and that would be a low-ball guess. But we were able to do it because we formed a nonprofit so that we could take cases like Sonia’s. We made a commitment to this young woman that we would represent her for no charge.

And the deal would be that if we were successful, that she would pay it forward and do what she could as a family member. There are going to be more family members coming. There are lots of organizations that represent people, but to really do an asylum case full-bore requires the kind of team we assembled, but that almost never happens.  I mean, in terms of the kind of representation people get, this case is very unusual.

Tony Schwalm: You were telling me about another case you worked on with a very different ending. Can you talk about that one?

Molly Molloy: Yeah, it’s an amazing contrast. The other case came around the middle of 2017. We met this kid right at the end of our dealing with Sonia, and I’m going to call him Victor. Victor, not his real name, was an 18-year-old indigenous boy from an isolated rural hamlet in Guatemala.  His only language was Akateko, spoken by less than 40,000 people in Guatemala, and only in the region, Victor is from. He never knew his real parents but was raised by a family who adopted him as a small child. He was forced to flee his home in his country in 2017, shortly after the death of his adoptive father. Being an orphan and with no male family member to protect him, he was targeted by gangs who beat him on several different occasions, the last time into unconsciousness. They threatened him with death if they ever saw him in the village again. His older adopted brother had fled Guatemala in the 1990s, obtained asylum, and is now a U.S. citizen. When we met Victor in May 2018, he was detained in the Otero County, New Mexico ICE Processing Center, a prison operated by the for-profit Management and Training Corporation. He had crossed the border near El Paso, Texas, in December 2017. Two different lawyers requested bond or humanitarian parole so that Victor could go and live with his U.S. citizen brother while pursuing his asylum claim, but the judge denied all of those petitions, saying that Victor was a flight risk.

We found an Akateko interpreter in Florida who agreed to interpret for us by telephone. But making this work from inside the detention center was difficult. ICE rules require attorneys to talk to their clients through a thick Plexiglas panel. And cell phones are forbidden inside the visiting booths. Our repeated requests to talk to Victor in a contact room using a cell phone to connect to our interpreter were denied. The ICE officer in charge of the facility told us that Victor spoke Spanish, but we had already determined that he could only understand a few Spanish words. In denying our request to use a contact room in the facility to interview Victor, the ICE officer said, “It’s not our problem that you can’t talk to your client.”

We eventually learned that Victor had never attended school and before leaving for the U.S. had never traveled beyond his village and, thus, had never had the opportunity to learn Spanish. He knew only the words he learned during his journey to the border and what he had picked up while in detention. He could not read or write in any language. He never had a credible fear interview, and none of the documents presented to him by U.S. agents were ever translated into Akateko. Victor told us that the agents had provided an interpreter who spoke K’iche’. But this language is spoken in a different region of Guatemala and is not related to Akateko. Victor’s hearings were conducted via a video link. He would sit in an empty courtroom at Otero. The judge appeared on a screen from El Paso. At one hearing, the court provided an interpreter who spoke via telephone using a related language, but one that Victor did not understand. Another hearing could not proceed because the telephone service was down at the El Paso court. Victor sat alone in Otero while the judge and attorneys chatted about the problem with no interpreter. No one present could explain this to Victor. We later saw his court file and noticed that on the bond hearing worksheet that the judge who denied the bond had written “respondent is very evasive when answering questions.” The judge apparently did not consider that this young man was alone in front of the TV screen, that the interpreter was a remote voice on a telephone, speaking in a language that Victor did not understand. Eventually, we were able to get permission to interview Victor in an unused courtroom at Otero using a cell phone to call our interpreter. After a couple of interviews, this permission was revoked, and we were told it had been a mistake to allow us to use the courtroom. On the day before his asylum hearing, the only place and time we could talk to Victor were after 8 p.m. in a holding tank with an open toilet where detainees wait to go to court during the day.  I have a photograph of this.

I have trouble imagining the level of isolation forced upon this young man for nearly a year, his only communication in a language he understands were brief phone calls to his brother and interviews with the Akateko interpreter. He was finally able to speak face-to-face in his language with the interpreter provided by the court at his asylum hearing in September 2018. The judge refused to allow telephonic testimony from an anthropologist, an expert in human rights and abuses in indigenous communities in Guatemala. This is someone I know who had agreed to testify for this kid. And when we brought it up in the hearing, the judge said, “I read her declaration, and I don’t need to talk to her. She’s not going to be able to add anything.” The anthropologist was standing by but never got a phone call. When the attorney attempted to describe restrictions on visits and access in the detention center, the judge disparaged the attorney from the bench, implying that she had not adequately represented her client. It was important to get these due process issues on the court record in order to have grounds for appeal.

The judge in this case was a real bully. She was incredible, and I’ve never seen such rudeness on the part of a judge. Immediately after Victor’s testimony at his final hearing – I mean, immediately – the judge didn’t take any pleadings or any arguments from the attorneys or anything, but just denied Victor’s claim from the bench. And basically, what she said to that young man was: “I’m really sorry for you. I’m sorry you’re so poor. I’m sorry for what has happened to you. But the facts of your case don’t fit the definition of asylum.” In other words, he was beaten up by a gang. He never went to the police. There were no police in this little village. Even if he had, he would have just been thrown out like garbage because he was an unattached, indigenous, illiterate boy. He was18 years old and about five feet tall. You know, obviously, you can see malnourishment in a person. He wasn’t very thin at that time because he’d been eating the detention food. His body had kind of swelled up and his face was puffy, but you could see that he was malnourished. He was probably one of the saddest and most traumatized people I’ve ever met.

Reuters

Tony Schwalm: How did this case resolve, Molly?

Molly Molloy: After Victor’s testimony, the judge denied his claim from the bench. When Victor heard the decision, he broke into sobs. The only emotion we’d ever seen, he just broke down crying. Before this day, he had been very controlled. When he broke down, he said that he could not bear being imprisoned and isolated any longer and asked to be deported rather than to appeal his case. He was deported back to the same dangerous conditions he fled in his small village in Guatemala, and this kid had a U.S. citizen brother.

I spoke to Victor’s brother on the phone numerous times; he was very helpful. He sent us documents, and he wrote a declaration for Victor, as he himself was an asylum seeker. I asked Victor’s brother in one phone conversation, “Do you know how to read and write?” And he said, no, he never learned to read and write, he came here as an asylum seeker when he was a young teenager and he was passed around from relative to relative in California. He said one uncle that he lived with put him to work in a factory when he was about 15 years old. He had never gone to school either in Guatemala or in the U.S. But he became an American citizen. He got a job; he started his own business. He was the kind of person that would definitely have taken care of Victor.

Tony Schwalm: Molly, I want to wrap up with a question based on the idea that if you had to tell President Biden to do something that would create a strategic shift in border policy, something that the U.S. could do right now that would ameliorate the suffering we are witnessing now, what would you say?

Molly Molloy: Well, let’s go from the specific to the general. If you want to make the immigration court system fairer for people, I believe there’s a lot that could be done in the direction of reform. First, hire more judges and from different demographics than just the prosecutor class, if you will. I mean, there are tons of immigration attorneys who are skilled and who know the law. And I think immigration attorneys – more than just former prosecutors – would make good immigration judges, but they’re almost never hired. Because the immigration bar, as it’s called, are all thought to be bleeding hearts or corrupt practitioners. Generally speaking, immigration attorneys are not thought to be serious legal minds. Well, I have not met any immigration judge yet who I think has a serious legal mind. And of course, I’m talking about the courts that service the border, and the border context is very different from other places in the country. If you go to immigration court in Miami or you go to immigration court in San Francisco or New York, you’re going to meet a different class of immigration judges. And that in itself is a problem. The disparities are gigantic.

A friend of mine sent me a chart that showed rates where asylum was granted by geographic location. [See graphic below.]  In New York or San Francisco, the rate is upwards of 50 percent in terms of asylum cases granted; in courts in El Paso, it’s maybe slightly below 5 percent. And if you get to some of the detention center courts in Louisiana and Georgia, it’s down to less than 1 percent. So how is that fair that the immigration judges in Louisiana or El Paso almost never grant asylum and the judges in San Francisco or New York grant asylum in 50 percent of cases?

https://defenseassistance.org/files/2019_migration_charts.pdf

The whole cadre of immigration judges needs to be studied and improved. And, I don’t know how much money that would take. I just know that the money that they’re spending now is not being well spent.

The other thing would be to provide some sort of free legal assistance to migrants. Even if you don’t want to make it available to every person seeking immigration benefits, just make it available to asylum seekers, because it’s a technical and difficult process. It’s not the same as just filling out a form for a green card where basically you just have to make sure you have all your documents proving who you are, that you are eligible to become a legal resident, and that you have not committed crimes. Seeking asylum is more complicated than that.

I think we also need to look at ways for people to be paroled out of detention or to never be detained at all, especially for Central Americans. As I said before, Victor, who had never stepped foot in a school and didn’t speak a word of Spanish, knew how to contact his brother. Victor should have never been detained and fed into a system that sent him back to the conditions that made him flee his country.

MOLLY MOLLOY is an activist/researcher with sterling credentials in Central America and Mexico since 1984. She has earned many awards, including in 2012 when she and nationally recognized author Charles Bowden shared the Southwest Book Award, Border Regional Library Association for El Sicario: The Autobiography of a Mexican Assassin. She worked as the research librarian and border/Latin American specialist at New Mexico State University, Las Cruces from 1992 to 2019. Presently, she works as a researcher, paralegal, and translator with Southwest Asylum and Migration Institute (SAMI), assisting immigrants transiting the U.S.-Mexico border, a position she has held since 2014. She holds a B.A. in anthropology and a master’s in library and information sciences, both from Louisiana State University. In addition to her work at SAMI, Ms. Molloy administers the Frontera Listserv, reporting events related to the border to more than a thousand subscribers.  To learn more about the Frontera listserv visit: https://fronteralist.org/about/

TONY SCHWALM is the vice president of the Board of Directors for the Consequence Forum, which addresses the human consequences and realities of war and geopolitical violence through literature, art, and community events. As a writer, he is a columnist for the Arrowsmith Press and the winner of the 2009 Mayborn Literary Nonfiction Prize at the University of North Texas. He retired from the US Army Special Forces in 2004 and is the author of The Guerrilla Factory: The Making of Special Force Officers, the Green Berets, published by Simon and Schuster in 2012.