The Artesia Experience

7/17/14

 

The Artesia detention center was put in place almost overnight and it appears to be one of two “family” detention facilities in the US with the other one being in Pennsylvania.  One ICE officer insisted that it was not a detention center, but a residential facility.  Who we kidd’n?  So please don’t mind if I use the term “detention facility,” or “jail,” or “prison,” or “soul crushing, we will squeeze the humanity out of you until you give up” facility.  The Artesia detention facility is located inside the Federal Law Enforcement Training Center (FLETC), a sprawling complex at the edge of town. 

 

Artesia is in the middle of nowhere.  It’s a town of about 11,000 residents.  The closest “big” towns are Roswell, NM to the north, population approx. 50,000, and Carlsbad, NM to the south, population approx. 26,000.  The closest metropolitan areas from there are Albuquerque, NM (where I live and practice) and El Paso, TX (where we have our newest office) both approximately a 3+ hour drive from Artesia.  The closest attorneys that practice immigration law are in Albuquerque, Las Cruces and El Paso, all about a 3+ hour drive away.  Let me say it again, Artesia is in the middle of nowhere.  I dare you to “google” it.  Imagine the psychological impact of detainee being on a bus and seeing nothing for hours en route to their imprisonment. 

 

I visited there on Friday, July 11, 2014 after it had been fully operating for about two weeks.  At that time I was told there were about 197 family units detained there, in all about 400 people.  There are 700+ beds total in the facility. I was visiting with two clients, both women were from El Salvador and each had two children.  I had contacted ICE officials in El Paso in the days before my visit so I could find out what the details were about getting in, etc.  I was lucky that my emails were forwarded to the right officials and I got an email back from an ICE lawyer from OPLA at headquarters.  I had a very pleasant conversation and he has been very helpful throughout the process.  He informed me the night before the visit that if I had any problems getting in or seeing my clients I could contact him and he gave me his cell phone number.  My impression is that his willingness to help was genuine, not just making the same statements while doing nothing.  He has been very helpful indeed. 

 

I was accompanied by our associate Jessie Miles who is based out of our El Paso office.  DHS secretary Jeh Johnson had been there earlier and I purposely arrived there after his visits so everyone would not be tending to Secretary Johnson and I would have people to talk to.  I arrived at the gate of the FLETC complex at about 1:30 PM.  The gate guard told us that we needed to check in at the visitor’s building.  We did so.  After speaking to two or three people and informing them who we were and what we were doing, a very nice FLETC employee called ICE “central command” on the complex and had us speak to an ICE officer over the phone.  The officer, who remained unnamed despite my requests for him to identify himself, informed us that if we did not have a signed G-28 we would not be allowed in.  I kindly informed him that, first, that’s impossible since without seeing my clients I can’t get them to sign anything and, second, that that is not ICE policy and that even with an unsigned G-28 we can see clients for possible representation.  I was personally at the headquarters meeting where this was discussed and later reflected in meeting minutes.  He insisted that was not the policy of ICE.  I asked to speak to a supervisor and I asked the officer for his name so I could address this issue.  The officer refused to give me his name.  I then asked for the name of his supervisor so I knew who to expect and at this point Jessie started taking notes as it appeared we were gearing up for a show down.  He refused to give me the name of the supervisor as well.  I called my lawyer contact mentioned above and kept texting him to arrange for our entry so he worked on the inside while we waited to speak to a supervisor. 

 

A supervisor showed up some time later.  He was very nice and informed us that if we had unsigned G-28s, which we did, there would be no problems getting in.  He was ready to escort us to where we needed to go.  A FLETC guard informed him that ICE could not use the main gate and we had to use a side gate so the golf cart he was using wasn’t going to cut it since we had to get on the highway outside the complex to reach the side gate.  So the ICE supervisor left on his golf cart alone and sent another officer with a van to pick us up.  We had to obtain visitor badges from FLETC staff.  As the FLETC employee was processing us for visitor badges we got to chat with her and she informed us we were the first lawyers to go through since detainees arrived there.  Jessie asked, “what do you mean first to go through, other lawyers have come and they weren’t allowed in?” The answer was in the affirmative, that some lawyers had shown up in the days before us and were not allowed in.  We could not get any more details after that since another FLETC employee slowly made her way over giving the silent message that she was talking too much.  After some time the other ICE officer showed up as promised and escorted us to “the courtroom.”  We asked him where he was from and he said he was on detail from Detroit.  We also found out that there were almost no local ICE employees in there and it seemed everyone was on detail from somewhere, a good number from Los Angeles.  So for most of the day Jessie and I played “guess where the officer is from.” 

 

By and large, with the exception of the knucklehead who was going on a power trip and wouldn’t give me his name, everyone we spoke to or dealt with from either FLETC or ICE was very nice and helpful.  It was very refreshing to see that. 

 

We were driven through a side gate, which went through an area covered in portable buildings.  We guessed they were dormitories and classrooms.  We walked in the heat of the afternoon to a non-descript building.  Walking in there, I was feeling like I was Tom Cruise in A Few Good Men.  Not because I was feeling short and handsome, but it felt like I was going into a God-forsaken place to represent the down trodden against the mighty U.S. government.

 

The non-descript building we went into was dubbed “the courtroom.”  There were two rooms in that building, in one there were some asylum officers conducting either interviews or serving immigrants with credible fear determination paperwork and we were ushered into the other one.  It appeared to be a repurposed classroom since it had some small desks and chairs.  The room was about 28 by 16 feet.  I know because I took some rough measurements since one of my clients told me that when she was apprehended in McAllen they were put to sleep in a room about that size along with about 100 other people.  They were also not given any food or matts or blankets in the freezing rooms they had to sleep in in McAllen where they remained for about 24 hours, but that’s a whole other story which I won’t get into here.  In the middle of the longest wall there was a small (about 20 inch) VTC  screen (the government’s version of Skype) where they could conduct video hearings with an immigration judge.  I didn’t think they made 20-inch screens anymore. 

 

We waited there until our first client arrived.  It took quite a bit of time.  When she arrived it was close to 4 or 4:30 PM, which was about 2.5-3 hours after we had arrived at the gate.  This is most likely not representative of what others should expect.  When you set up a jail overnight logistical problems such as this one are bound to happen.  Like I said above, most everyone was willing to help and did their best under the circumstances. 

 

When our client arrived with her two children the ICE officer that was staying with us stepped outside and waited in the heat.  Again, think A Few Good Men. I felt bad for the officer.  About 10 minutes into the meeting another ICE officer along with the one who was posted as a “sentry” by the door stepped in politely.  The second officer (a woman) informed us that they were required to maintain visual with the “resident.”  This is where we were informed they were not “detainees,” they were “residents” as this was a residential facility.  This is also where we asked whether we could take our client out shopping since she was only a “resident,” and we were obviously told we couldn’t.  This exchange wasn’t hostile, but it did express our true feelings that we should call things for what they are. 

 

I informed that officer that if they wanted to they could put us in a room with a window and they could maintain visual from the outside (“the courtroom” was windowless), but that they sure weren’t going to be in the room while I talked to my client.  The officer also wasn’t sure whether we could have “contact” with our client.  I told her we had contact with clients all the time even in true “detention” centers so why should it be any different with a “residential facility?”  It appears the officers had no clear guidance on “visual” or “contact” so she just decided it was going to be ok for us to continue the way we had been.  It seemed everyone was confused about what some of the rules were or what was truly happening.  Heck, they didn’t even have enough land line phones and most ICE officers, even higher ups, and asylum officers were working off cell phones. 

 

We did notice something strange.  There were more male officers than there were females.  While we did not see where our clients came from we noticed that it was male officers escorting them.  We inquired with a friendly officer on our way out and he wasn’t really sure what was going on and who was allowed and not allowed to go into the actual dormitories, so it appeared they had no clear guidance about gender sensitive escorts.  Again, when you spring up a jail overnight, things like this are bound to happen. 

 

We did not conduct any hearings on that day, but we found out that the EOIR Headquarters judges from Arlington VA were going to conduct hearings via VTC and for the moment ICE attorneys were detailed to Artesia so they were there locally.  This may change as there may be ICE attorneys appearing in person in VA and only the detainee appearing via VTC from Artesia.  I have a big pep peeve about VTC as do most attorneys.  I have a bigger problem with VTC when the case is asylum.  Asylum cases are all about the details and tugging at the heartstrings.  That is extremely hard to do through a 20-inch screen.  Think of it this way, would you rather be physically present at your child’s birthday, or attend it through Skype?  Is it really the same? 

 

We met with our clients (separately) for about 3-4 hours.  We found out both had already been interviewed by an asylum officer for credible fear and one of them was already found to lack the nexus to a protected ground or a government actor although she was found to be credible and it was found she would likely be tortured if returned to El Salvador.  Curiously, on this client, her preteen son had a stronger asylum claim and he wasn’t interviewed at all, just the mom.  Neither client was given the Orantes injunction advisals.  More on this below. 

 

My impression of the Artesia makeshift detention center is that it is a due process travesty.  Is it really coincidence that a detention center was set up overnight in the middle of nowhere where the closest immigration lawyer or non-profit (which by the way can’t provide direct representation) is 3+ hours away?  In the few weeks it has been in operation, there have been no non-profits doing legal orientation programs, there are no non-profits that provide direct representation to those detained there and asylum interviews and hearings are happening so fast and are so short that even the most diligent detainees can’t get counsel fast enough to be advised before they are interviewed or are given any meaningful opportunity to tell their stories.  It appears the government is paying lip service to due process and just going through the statutory and regulatory requirements as fast as possible so they can give a semblance of compliance while the airplane to central America is warming its engines in nearby Roswell.  This is the same as a child being asked to clean his room, and he stuffs everything under the bed to “comply” with the command and ends up making it worse, except in our cases it’s not a matter of putting dirty laundry in the hamper, it’s women and children that can get killed if returned home.  As a father of three small children, I can’t help the kids’ analogies. 

 

What’s most troubling is the message the president and Secretary Johnson are carrying which is “we will send you home.”  Are they prejudging cases before they are being heard?  You bet they are.  This is the same as saying everyone who is arrested in the United States is guilty and we will send you to prison and here, let us give you a “fair” trial since the constitution says we should before we do that.  I hate politics and I hate politics even more when we are sending some people to their deaths or serious harm in the name of “sending a message.”

 

In the days before I visited Artesia I had been in contact with some non-profits in the area to see what efforts were being made to represent detainees at Artesia since I wanted to provide pro bono support and so had offered a multitude of other lawyers.  Kudos to AILA members who have shown a tremendous outpouring of support and willingness to travel great distances to provide pro bono legal representation to detainees at Artesia.  I was informed that a non-profit in El Paso, TX was being tasked with doing legal orientation programs (LOP) but that nothing had happened yet.  As of the date of this writing, July 17, 2014, and about 3 weeks into Artesia’s detention center’s existence there are no non-profits conducting LOPs to my knowledge.  They are hoping to get something going this week or next.  In the mean time, asylum hearings and court hearings are happening business as usual, in fact faster than usual.  EOIR said so in a press release.

 

What’s worse is that, to my knowledge, there are no non-profits that can provide direct representation to detainees at Artesia.  It is up to private attorneys to provide pro bono services, or detainees have to hire their own lawyers otherwise they go unrepresented.  Again, is it a coincidence that this “residential” facility was set up in Artesia, middle-of-nowhere, New Mexico?  I think not.

 

I went to Artesia the morning after I was hired on a case and not only one of my clients had been interviewed, she had already received a negative credible fear determination.  Credible fear interviews are done quickly and fast.  Like I said, I can’t seem to catch any clients before they are already interviewed.  The interviews are also lasting way too little.  In one of the cases I reviewed while I was there, the entire interview lasted 1 hour 8 minutes; that includes translation time which cuts the interview in half, so it is the equivalent of 34 minutes of an English interview.  Take off about 10 minutes where the officer has to read several mandatory advisals and you are left with about 25 minutes of questioning in which the detainee will have to answer questions to determine whether there is credible fear of being persecuted in their home country if returned.  That’s ludicrous.  If the U.S. government thinks that’s an adequate time of listening to one’s horror story, it is deceiving itself and surely deceiving the public.  I take 25 minutes just to establish rapport with the client, let alone begin to flesh out any of their story.  A friend of mine who used to be an asylum officer in a past life tells me that when she used to be doing credible fear interviews she was scheduled for one in the morning and one in the afternoon, each interview lasting several hours.  Judging from my one case, DHS appears to be scheduling about 8 per day.  I don’t necessarily blame the asylum officers.  What are they supposed to do when their typical interview load of 2 per day jumps to 8 per day and the top brass who signs their paychecks publicly states “we will send them home?”  Are they going to embarrass their chief and err on the side of finding credible fear as is usually the practice or will they err on the side of sending them home so the president can be proud of them carrying out his word?  Are we really that naïve to think that these poor folks who have gone through a hellish ordeal in their home countries and in one case molested and shaken down by Mexican federales on their way to the US are receiving a fair process. 

 

Travesty, I say, a due process travesty. 

 

We finished talking to our clients sometime after 7 PM.  On the way out the ICE officer driving us out took a wrong turn and we got the unofficial tour of the entire complex.  It’s pretty big with the detainees being detained in the modular, portable buildings at the edge of the complex.  On the way out we saw some children in the yard playing ball.  It made me feel good that they had toys and balls to play with as I thought back to my own children waiting at home for me.  At the same time it made me extremely sad putting myself in the place of those parents with my three children in a far away country hell bent on sending me back to serious harm or death.  I can’t imagine the psychological terror they must go through. 

 

On Monday, July 14, 2014 I got a call from an asylum officer detailed to Artesia. He had another client of mine in front of him and he was serving her with the finding of negative credible fear in her case.  He went through his required procedures.  After that I raised the issue that my client was not served with the Orantes Injunction advisals and none of the Orantes requirements were followed.  Orantes is a case that began in 1982 where a federal court in California issued a permanent, nation-wide injunction, which requires DHS to be following certain special procedures with El Salvadoran asylum seekers.  None of these were followed in any of my El Salvadoran cases at Artesia.  Because the special procedures have a special emphasis on legal counsel and access thereto I requested that my clients be re-interviewed, now with the benefit of counsel.  While I was told a re-interview was not completely out of the question, it was highly unlikely my client would receive one.  The supervisor I spoke to (who was also very nice and collegial) maintained that they did things right even if Orantes wasn’t followed so we were at an impasse.  I was told the only remedy I would have is to inform the immigration judge of this, which I don’t know that it would mean much since the Immigration Judge’s review of the credible fear findings is de novo.  I have no personal experience with Arlington IJs but conventional wisdom is if one receives a negative credible fear determination by the asylum office, the IJ rubberstamps that decision more often than not.  I hope I’m wrong on that, but I know it’s just wishful thinking.  I am on my way to Artesia again today for one such hearing so I may update later. 

 

I will keep updating this blog as I gain more insight into Artesia.  I am also in the process of setting up a network of pro bono volunteers so stay tuned if you want to help.  We desperately need it down here.