On a recent Thursday afternoon, just past 1 pm, Philadelphia Immigration Court’s sterile, fluorescent-lit waiting room is packed with about 40 people. Outside, the hallway serves as an overflow area.
An elderly woman sitting next to me on one of the wooden benches nervously fidgets with an envelope from the US Department of Justice. Two young men, both with carefully gelled faux hawks and crisply ironed plaid shirts, sit side-by-side looking ahead, silent. A young mother coos to her baby, who looks up to her from a stroller.
A court security guard comes in and says that everyone “sin abogado,” without a lawyer, should follow him. Nearly the entire room empties. Unlike criminal court, legal representation in immigration court is not considered a constitutional right, so public defenders are not provided to those who can’t afford private representation.
I’m here to observe the asylum hearing of a 31-year-old-woman, who is down the hall meeting with her lawyers. A team of law students from nearby Villanova Law School, under the guidance of a professor and veteran immigration lawyer, took her case on, pro-bono.
She wants to be identified with a false name in this story, Alejandra Garcia, because she is worried about her and her family’s safety here and in El Salvador, the country she fled with her two children in 2014. That year, almost 140,000 unaccompanied children and people traveling with family members from Central America were apprehended on the southwest border of the US. US Border Patrol says the numbers in fiscal year 2016 are just as high.
The fact that Garcia has legal representation is rare and could be pivotal. A study by the Transactional Records Access Clearinghouse at Syracuse University (TRAC) analyzed more than 26,000 asylum proceedings of adults with children last year, and found that less than one-third had legal representation. About 26 percent of the applicants with lawyers successfully won permission to stay in the US, whereas only 1.5 percent of those without won their claims — 98.5 percent of migrants with children who did not have lawyers were deported.
The Garcias’ native country is often called the “murder capital of the world.” In 2015, 6,656 people were killed in El Salvador, a murder rate more than 17 times the global average, according to the government organization Instituto de Medicina Legal (PDF). Most of the murders are attributed to a network of powerful street gangs fighting to control the country’s illegal drug trade. Governmental attempts to reign the gangs in — including police crackdowns and the transfer of incarcerated gang leaders to higher security prisons — have just fanned the violence.
Garcia's two sons, Pablo, 10, and César, 14, sit on a bench across from me, near their father, Miguel. Pablo draws quietly in his notebook and looks to his older brother for approval of his creations. César wraps his arm around his younger brother and playfully rubs his head.
When it is time for Garcia's hearing to start, her translator, a student volunteer from Villanova, summons me. The courtroom is small, decorated only by a large American flag and a Department of Justice plaque on the wall behind the judge’s bench. This is a private hearing so only six of us sit in the audience: the two directors of the Villanova clinic, their translator, two court clerks and myself. Garcia's family remains in the waiting room. They decided it was better that the children wait outside.
Garcia sits behind a wooden desk perpendicular to her lawyers,’ where the jury would sit if this were a criminal court. She wears a royal blue dress with rhinestones around the collar. Her straight, dark hair is pulled into a low ponytail.
The judge lists documents that have been added to the asylum application: birth certificates, copies of threatening extortion letters, and a package of information on human rights abuses in El Salvador. The whole application amounts to a stack of paper about six inches thick.
This is the first time Garcia has had a chance to make a case for herself and her children before a judge, apart from hearings to schedule court appearances. This is also the first hearing for both of Garcia's lawyers, who are third-year law students. The lead, Kelsey Krier, studied this judge’s track record nervously before today. Judge Rosalind Malloy seems to have softened up over the years. According to TRAC’s analysis, she denied over 60 percent of the asylum cases that came before her in 2010. But by 2014, the most recent numbers available, her denial rate was just 20 percent.
Any number of factors could have influenced that drop, though. Krier isn’t reassured. She couldn’t sleep last night, she told me, too wound up by the weight of her responsibility today.
The lawyers drew out details of Garcia's story through a series of questions. One of the most powerful street gangs, Mara Salvatrucha, known as MS-13, targeted Alejandra because her husband has lived in the US since 2004. They assumed he was sending back remittances. Garcia also lived and worked on the most prosperous farm in her rural hometown. She was, in short, assumed to have greater wealth than her neighbors, and the gang wanted a cut.
Miguel Garcia had planned to return to El Salvador after he had made some money for the family, Garcia says. But when it became clear that he was on MS13’s radar, he decided he needed to stay in the US for his own safety. In 2011, gang members targeted his cousin.
“They were cousins, but you could talk about them more like brothers,” Garcia tells the court in Spanish. (The court translator, who sits beside the judge, repeats all of her answers in English.) She takes a deep breath. “They were extorting him for $10,000. If he didn’t pay, they told him a lot of blood was going to flow,” she says. The cousin reported the extortion to the police. Soon, he was found dead. Garcia dabs her nose and her eyes with a tissue.
In 2014, the extortion letters came under her own door. The first demanded $1,000, the second, $3,000. This amount of money, she tells the court, would have taken her years to make. Her lawyer asks her how she felt when gang members came to her home. They shouted at her to give them money or they would kill her, she says, looking straight ahead. “I felt gripped with fear.” Gang members accosted her oldest son, César, at school, telling him he must join or his family would suffer. At the time, he was 11.
That was when she decided to leave El Salvador for good. She and her two boys traveled by foot and bus to the US-Mexico border in Texas. The journey took about a month. At the border she declared that she was seeking asylum. She and her boys spent one night in detention. Though their stay was short, the frigid conditions in the detention center, known by migrants as “las hieleras” or ice boxes, made a lasting impact on her younger son. Pablo is still afraid of air conditioning.
The border patrol agents there determined Garcia had reason to fear returning to El Salvador, and that she and her sons posed no threat to the community. So they were sent to Pennsylvania, where Miguel lived.
When it comes time for a cross-examination, Garcia fields some of the government’s lawyer’s questions with ease: She had come to the US without a visa in 2005 in order to join her husband and make money for her family. But she returned to El Salvador three years later because she missed her son too much, whom she had left in the care of her aunt.
But other questions prove more difficult. Mary Lee, the Department of Homeland Security lawyer points to the fact that Alejandra and her husband weren’t formally married until this year. He asks, if the threats against her were derived from her association with her husband’s family, why did it take MS13 so long to realize the relationship? Miguel’s cousin was killed in 2011. Why wasn’t she threatened until 2014?
Garcia folds her hands on her lap nervously and looks straight ahead: “I don’t know.”
Kathryn Mattingly, a spokeswoman for the Executive Office for Immigration Review, the federal agency that oversees immigration courts, wrote in an email that immigration judges take into account many factors in these kinds of cases including “an applicant’s demeanor while testifying, the plausibility of an applicant’s claims, inconsistencies in the applicant’s testimony,” as well as the current conditions of an asylum applicant’s home country.
To address the influx of people fleeing violence in Central America, the Department of Justice issued a memorandum in 2014 saying it would prioritize the cases of families and unaccompanied children from this region through so-called “rocket dockets.” Otherwise, the thrust of the government’s strategy has been deterrence. This year, the US paid Mexico $75 million to tighten its own border security, in order to apprehend migrants from Central America before they make it to the US.
Judge Malloy scribbles down notes, poker faced.
A keystone of proving need for asylum under US law is to show that an individual is persecuted because of membership of a social, political or family group. Garcia was not legally married to Miguel when she fled, and she wasn’t related to the owners of the farm where she lived and worked.
Garcia's lawyers call an expert witness, Joseph Wiltberger, a professor of Central American Studies at California State University, Northridge. Wiltberger has conducted more than a decade of ethnographic research in El Salvador. He is called on the telephone, and his voice is piped in over speakerphone. He explains that though legal marriage exists in El Salvador, in rural areas such as the one Garcia is from, it is rare. Much more common are informal unions. The fact that the couple had children together would have made them a family unit in the eyes of the community. And, he says, the visibility of her employer’s wealth in the community, displayed by their large plot of land, put Garcia in a high-status social group.
Further, he tells the court, there was an experimental truce between Salvadoran gangs, brokered by the government, in the time between Miguel’s cousin’s murder and the threats against Garcia. During those years, murders in the country were about five per day, he told the court, down from 12 or 13. These gangs, “operate as criminal organizations, political entities. This is not the gang violence we’re used to in other parts of the world,” he says.
Krier asks Wiltberger what he thought would happen if Garcia were forcibly deported. “She would be killed at some point in the near future,” he says.
Garcia sits with her hands on her belly, looking down at her desk.
After a grueling two hours, the hearing ends. In her closing, the government’s lawyer again reminds the judge that the extortion that was described in court is not family related. Judge Malloy nods, but says she is unconvinced that this discredits Alejandra’s claim of persecution. She grants the application.
Alejandra and her sons are no longer at risk for deportation, eligible for benefits such as refugee resettlement aid, and in a year will be eligible to apply for a green card. In five years, they can apply for US citizenship.
Alejandra soaks in the news silently for a moment, now letting the tears that stream down her face.