I Visited The Border To Provide Legal Advice To Detainees Seeking Asylum In The U.S. I Found A Judicial System I’d Hardly Classify As American.
Cover photo of the U.S.-Mexico border fence near Brownsville, Texas, by Jessica Vittorio.
In mid-June, I attended a pro bono trip to the South Texas border to assist in providing representation to immigrants currently detained.
The trip, organized by the American Bar Association, had been brought to my attention almost a year earlier, after I had expressed interest in opportunities to go to the border to work with detained immigrants. While many attorneys often express interest in using their license to aid the situation at the border, those of us who do not primarily practice immigration law usually have to partner with an organized trip of this nature to ensure that our efforts are properly coordinated and as effective as possible.
So, to be clear: I am not an immigration attorney. I own a practice in Dallas that specializes in transactional business law for startups. But, like many others, I had seen the media coverage regarding the situation at the southern U.S, border, and I was eager to see the state of things firsthand.
While I was mentally prepared for the detainment conditions, for the sheer volume of individuals being held in these border camps and for inevitable processing delays, I was not prepared for the systemic issues I encountered within the judicial proceedings relating to these immigration attempts.
These proceedings, as I saw them, are a slap in the face to the constitution. They make a mockery of the ideals we purport to stand for as a nation. These systemic issues are indicative of more than just policy failure; they signal a fundamental diversion from the core tenets of our country’s identity.
Having attended several other pro bono trips throughout my career, I expected to encounter a certain atmosphere in the office of our sponsoring organization. These non-profit organizations employee staffs that are often underpaid, overworked and consistently fighting an uphill battle for their clients. The office we entered in Harlingen — not far from Brownsville and McAllen at Texas’ southernmost tip — was no different. Upon our arrival, we were given a lighthearted tour of where to find the usual snacks and coffee, but also “mental health and stress relief” amenities such as a meditation room, a gym and a few outdoor spaces, all of which were provided to give staff members places to decompress from the mental and emotional weight of their jobs.
The tour seemed to last forever. At one point, I lingered on the third-floor patio for a moment, letting the group move on without me. As I stood there, I admired the beautiful flowers in the courtyard, and the blue skies peaking over the rooftops. I couldn’t shake the thought that this beautiful space had likely seen a number of frustrated, even defeated, individuals. But that reality felt distant in the calm and serenity I was receiving as a respite from the chaos of the office. So I reentered the pandemonium and settled into the conference room where we were assigned the clients we would work with throughout our five days.
One of the clients I was assigned was a young man in his twenties from Honduras. He was set to have his final asylum hearing on Friday of that week, and he’d already been through a lot. On top of experiencing significant trauma as a result of the criminal turmoil in his home country, he had been away from his family and spent the past several weeks in a federal detention center, his release date from which was unclear.
As I spoke with him about the proceedings that would be taking place, it was clear he had very little understanding of what would be expected of him in this final hearing. As we slowly worked our way through the procedures of what was to take place, he began to share his story. Bits and pieces of the traumas and pain he had endured slowly started to spill out. He spoke of family, friends, business aspirations and even a home he had recently purchased; he painted a picture of a life that had been torn apart by the corruption and lawlessness that pervaded his home country.
One thing I explained to him was that, as is common with pro bono trips, we attorneys could not undertake direct representation of his case. Rather, our role is to counsel the clients and act as a source of information as they prepare for their next proceeding. For this client, my role was to ready him for what he would encounter by helping him understand the rules that were in place and to answer any questions he may have about them.
These proceedings, pursuant to Department of Justice policy, are generally open to the public and only to be closed in the event of sensitive information being revealed or if the detainee specifically elects for the proceeding to be closed. The client made it clear in our initial meeting: He wanted us to attend his hearing. I, in turn, clarified the procedures for doing so with the staff hosting us and set out to make this happen.
On the day of the hearing, though, our plans to attend our client’s hearing were halted.
Upon arriving to his hearing, the bailiff took me, another attorney and two interpreters back to the courtrooms to briefly see our client. It is important to understand that the courtrooms for proceedings involving detained immigrants are housed within the secured facilities themselves, and thus not accessible without escort. This is, of course, different from a traditional courthouse, where individuals can generally come and go at their pleasure. Once in the waiting area behind the secured door, where the detainees await their presentment to the court, our client exchanged general pleasantries with us. We asked how he was, and if he was ready for what was to come. He seemed to be in good spirits and glad to see us. I assured him that, no matter what happened, we had prepared for his hearing the best we could, and that we would be in the room to support him as promised. We exchanged some small-talk with the bailiff, too, who seemed to be under the impression that we were students, not attorneys and interpreters. Once he realized his mistake, his demeanor immediately changed. He suddenly said we would need return to the general waiting room — outside of the court area — and remain there until the judge was seated.
About half an hour later, the bailiff returned to tell us that the judge, Morris I. Onyewuchi, would not be allowing us to observe the hearing — not without a signed consent form from the detainee. I informed the bailiff that we had received the detainees consent the previous day, and that I was confident that the judge would allow for us to observe when asked — y’know, like the standard procedure. The bailiff repeated that the consent must be written— but also denied my request to explain this to the detainee so he could give consent in writing, as requested. With less patience, I reminded the bailiff that, pursuant to policy, these were open proceedings, and that such a requirement of written consent had never been mentioned. After my repeated urging, he agreed to ask the judge one more time if we could see our client and get that written consent.
Even if this was somehow the rule of the land — to my knowledge, it definitely isn’t — I was optimistic in that moment that the judge would understand the error of his ways, allow us access to our client and let us quickly draft up a simple pen-and-paper document noting his consent. But when the bailiff returned, he said the judge had denied my plea, saying that consent had to have been written and submitted prior to our arrival.
This decision was made in direct contradiction of our client’s wishes — and made eerily close in time to when the judge was made aware that my colleagues and I were attorneys and not students.
I stood there in shock, face to face with the type of systemic nightmare I had hoped I would not encounter on this trip. A rage boiled inside of me. I stood there silent, contemplating just how far I was willing to push my arguments about the injustice that was occurring. For a moment, I even jumped ahead in my mind, briefly formulating the response I would give as to why the judge had no authority to hold me in contempt and incarcerate me — just in case things were to escalate to that point.
In the end, I stopped short of handing my personal effects to the other attorney and demanding to speak with the judge. Dejected and in a daze, my colleague and I instead left the facility.
Later that afternoon, we were informed that our client had lost his hearing, and been ordered deported.
I am speaking up now. What I saw at the border was an organized workaround to the procedural standards of the American judicial system. It was a direct affront to the tenets of the U.S. Constitution.
There are several key pieces of context needed to appreciate the true injustices that I witnessed during my time working in the Port Isabel Detention Center.
First, it’s important to note that immigration proceedings are legally classified as civil proceedings. This means that detainees are not entitled to counsel, and are not guaranteed the full protections of due process. One issue with that: I have participated in enough civil trials to know that none of my clients were ever held involuntarily in detention centers lined with razor wire and staffed by armed guards from which they were not allowed to voluntarily leave. The classification of immigration proceedings as civil proceedings as opposed to criminal proceedings is, put simply, an extreme mischaracterization that leads to a vast majority of the systemic problems.
Second, the “courts” and “judges” in these proceedings are agents of the Department of Justice — they are not standalone Article 1 or 3 courts. A normal federal court, such as an Article 1 or 3 court, is an entity of the judicial branch and the jurisdiction of the presiding judge that has been appointed to that seat. Federal judges are appointed by the Executive branch, and generally confirmed by the Legislative branch to serve life sentences. This process is extremely important because it ensures that judges exist above political influence and act as neutral arbiters to oversee the proceedings before them. The entities and individuals that oversee the immigration proceedings exist in a real so far removed from Article 1 or 3 courts that I’d argue that “court” and “judge” are not even appropriate terms. What I witnessed were administrative proceedings hosted by Department of Justice employees that are simply subject to the oversight and policy whims of the Attorney General. These judges are, in my mind, wholly subjected to political influence, and anything but neutral. The government attorneys and judges work for the same team — a glaring conflict of interest that removes any semblance of a facade of justice or fair play. The standard rules of evidence, procedure or oversight do not apply here.
For the vast majority of administrative proceedings, this would not be an issue; the stakes in most cases are significantly lower, limited mostly to monetary penalties. But these “courts” I saw at the border are a different breed. They are the Wild West, their “judges” unchecked sheriffs that rule with iron fists — especially when challenged.
While it is important to monitor the very real and often horrific issues surrounding detention conditions and processing times, I came to learn in my time in Harlingen that focusing on these issues mostly distracts from the fundamental structural flaws at play in this crisis.
The system is so heavily stacked against these detained immigrants that the government might as well be the house and asylum-seekers unwitting casino patrons. They sit down at the poker table laughably unaware that voluntarily playing the game is already a losing proposition. Or, well, it would be laughable if we were dealing with poker chips and not the lives of thousands of human beings.
Back in college, I had the opportunity to hear the author Lawrence Wright speak on our nation’s response to terrorism, and I recall him saying that, when handling issues like terrorism, we must know the enemy — but also know ourselves.
It is natural for us to misunderstand those we view as different. It’s natural that this misunderstanding leads to fear.
What is not natural is how this fear has progressively become reflected in the structure of our immigration system, which only appears to address the threats posed from those we view as “them.”
In reality, xenophobia has forced us to collectively turn our backs on all that defines our nation. Systems built around fear and discrimination inherently contradict systems built around freedom, justice and due process. If we are not mindful about the current realities of the systems we have created, we risk sacrificing our long-term ideals and protections. In return, we earn nothing more than the false promise of short-term safety.
In my eyes, this is not a political conversation. I do not believe that anyone’s outrage about the border crisis should depend on the side of aisle with which a person identifies.
As Americans, we should be outraged at the denial of the principles and values guaranteed by our constitution wherever they occur. The situation at the border is a battle for all that we hold as core values of who we are.
To deny me and my colleagues the chance to observe our client’s hearing is to directly contradict both the public policies of the agency and the explicit wishes of the detainee. Such an act amounts to nothing more than hosting a rubber stamp, secret proceeding led by an individual with indisputable systemic conflicts of interest. The arbitrary and capricious nature of determining when, or even if, basic constitutional principles are to be upheld calls into questions the legitimacy of the entire system. By allowing these gross manipulations, we are no better than the nations from which these individuals are fleeing.
The failures of this system — allowing these proceedings to take place in secret behind locked doors, with a non-neutral arbiter, and an attorney that represents the interests of the same branch — are not new failures. They have been slowly incorporated into the norm throughout years, even decades, of a changing political landscape. They are changes marked by fear and misunderstanding. Worst of all, they allow the rights and freedoms guaranteed by our constitution to be ignored in regards to our most vulnerable populations.
We’ve all read the history. We know that this slippery slope leads inevitably to the denial of these protections to us all.
I thought about that on the last day of my trip to the border, only a few minutes after receiving the confirmation that my client had been ordered deported, when I found myself again standing on the third floor patio of the office in Harlingen.
I stood with my hands gripping a railing, knuckles white and on the verge of tears. But this time, the flowers and the blue skies could not muster any serenity. I could not ignore the overwhelming reality that I had been presented with — the reality that we, as a nation, stand at a cross roads.
Either we are a country of values or we are not. Either we are a country that believes in the dignity and worth of every individual or we are not. Either we recognize and protect the worth of those in our jurisdiction or we do not. Either due process and justice are everything or they are nothing.
The rights and protections guaranteed by the constitution cannot exist on a sliding scale, where they lose any weight or meaning.
This is not an issue of us versus them, I realized. This is an issue of us versus ourselves.
Slowly, I loosened my grip on the railing. I wiped the tears from my eyes, and I took a breath. I had come face to face with the version of our nation that we had chosen to be that day. As I said a silent prayer for my client and the other attorneys who will continue this work, I also made a promise to return home and share the reality I saw.
By sharing the horrific and unjust version of our nation that I experienced at the border, I hope the hundreds of thousands of immigrants can see a different America tomorrow.
Jessica Vittorio is the Managing Attorney of The Law Office of Jessica Vittorio, and a native of Frisco, Texas. Her practice is based in Dallas, and focuses on providing business owners with the insight they need to properly grow their business. She is an advocate for the entrepreneurial community throughout Texas, and frequently speaks on the important role of local businesses in the economy. Prior to opening her firm, Jessica served as primary legislative counsel for a Member of the U.S. House of Representatives in Washington, D.C.. In addition to her professional work, Jessica works with the boards of several non-profit organizations that address a variety of topics she holds close to her heart, including: providing affordable access to mental health resources for artists and musicians, providing access to housing for homeless veterans and, most recently, providing access to legal counsel for detained immigrants.