BITS AND PIECES

A man who is detained for deportation by U.S. immigration authorities inevitably struggles to make sense of what is happening to him. Some of these men are justifiably angry and bitter because they know they have a great deal to lose in the end. Others are simply uncertain and frightened; and despite the seemingly invincible armor they wear when I am present, and the "let 'em deport me, I don't wanna be here anyway" attitude they might senselessly express, the incomprehension and fear are visible in their eyes. It is a blank, frozen stare or a tense, nervous smile. Occasionally tears escape. I am still caught by surprise when a man cries in front of me. He always looks down shamefully while I try to casually look away.

If he doesn't speak English he will struggle alone between the sterile walls of the detention facility. In the detention center's pods, the televisions are either tuned to English or Spanish programming given the demographics. There is often conflict among the two language groups as to whose program will be on. I don't envy anyone who doesn't understand one of these two major languages because other than t.v., there is little entertainment in jail, and no other source of information.
Those who are detained in the company of a man who shares his language, and with whom he can attempt to decipher the callous deportation system, are fortunate. Boys will claim they are eighteen so as not to be separated from brothers or older men whom they trust. Men from the same country will mimic each other in the courtroom even if the response they give the judge makes no sense for their situation. The experienced, usually those who have served time in prison for a crime, will advise the novices-- the simple immigration law violators-- who have never before been held in captivity. In detention, language and its communicative power is all that gives meaning to lives.

It is likely that the men who have bonded for the sake of a common language never would have uttered a word to each other in their native countries, but here in detention, they become completely reliant on one another. I saw this peculiar bond develop between a macho Palestinian auto mechanic with a smooth bald head and a grin to match, proud to have fathered six children, each one year apart, and a middle-aged, gay Jordanian who adored his country's royal family and inexplicably wore cologne despite the potentially inhospitable surroundings in which he now found himself. But I suppose by the time a man reaches his age, he knows what he's doing for better or for worse, so I considered this peculiar act none of my business and pretended not to notice I'd caught a whiff of his fragrance.

Both men were seeking asylum and patiently awaited their turn before the immigration court. Soon enough they were joined by a shy, devout Christian Copt in frail health who was desperately trying to find a country where he and his family might settle, safe from the seemingly constant threat of persecution. Both the U.S. and Canada had already rejected his asylum claim. He'd been wandering for several years and seemed as stateless as a Palestinian, though the U.S. government would ultimately deport him to Egypt if necessary. The soft-spoken, sweet-smelling Jordanian, the only one of the trio to speak English, became the spokesman for this unusual group and its fine link to the oustide world, especially to me. I can only imagine what the three of them may've talked about during those long days of boredom. I have little idea about the lives these men led in their native countries and what opinions they may had formed about each other. I ask limited questions, and clients tell me only bits and pieces, as needed, so that I can better prepare a case for their defense against deportation. As a lawyer I see facts narrowly, and sort quickly through what is relevant and what is not for my purposes. I don't tend to dwell on the unique aspects of another's life like I do when I'm in the company of friends. I've always been afraid that it would overwhelm me to know too much.
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Merry Christmas

The holidays always seem to bring something unexpected. This year, I have been very touched by a client who located me after many years of searching.

In 1988, fresh out of law school, I began working with Farmworker Legal Services under what was then known as the VISTA program.It was the tail-end of the “amnesty" and I handled a number of cases involving migrant farm workers who were eligible for “green cards” given the agricultural work they’d performed in the United States between May 1985 and May 1986. It was my first experience in immigration law.

It was around then that I met Mr. Martinez. I met him only once, briefly, to obtain his signature on a form, though I handled his case for several months, including an appeal when he’d been wrongfully denied his permanent residence. The immigration service denied his application by claiming that he could not have picked apples at a dairy farm, and dairy work did not qualify one for amnesty. With one quick phone call to the farm’s widowed owner I learned that when her husband had died, she’d turned over the family farm to her sons who decided to harvest apples rather than milk cows. However, the farm’s name had never been changed. Given a simple affidavit from the farmer, Mr. Martinez became a permanent resident.

I can no longer recall how old Mr. Martinez was when I met him but I remember that he appeared weathered and elderly despite his tall, thin frame and healthy presence. I would guess he’s about 70 today. We stayed in touch for at least ten years as I moved around the country from job to job, and he traveled the migrant season from north to south. We wrote back and forth to each other a couple times every year, and spoke by telephone occasionally. I even once received a letter from a priest in Mexico telling me that Mr. Martinez had had a Mass performed for me in his native country. And then one day there was no word. When I thought of Mr. Martinez, I could only assume he’d passed away. Fortunately, I was wrong.

This Christmas, however, I received a card from him. I recognized the name and the handwriting immediately. He wrote to me hoping that I was the “Sofia” for whom he’d been searching for a long time, and asked me for my telephone number, explaining that he could not reach me with the one “they” had given him. I don’t really know how Mr. Martinez found me. It certainly wasn’t through Google or Facebook. Nonetheless, I am impressed by his determination and flattered by his consideration.
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A Migrant Life *

*This story first appeared in an edited form as "Perspective" in Bender's Immigration Bulletin (May 1, 2007, Vol. 12, No. 9)

"You will be a traveler for ever and ever and will never be able to settle down."

-Ibn Arabi, 12th-13th Century Spanish scholar

When I first started out in this profession I would've never guessed that one day I'd go into private practice and handle cases involving mail order brides. After all, I'd gotten into law to help the underserved and the disenfranchised-- the migrant farm worker, not to represent the middle-aged American man who'd gone overseas to get a docile wife with whom he could barely communicate.

Not all of us with a law degree choose to work for the poor. With its emotional toll, it has a tendency to encroach on your personal life and leave you feeling like an empty bucket. You snap easily because of the injustice suffered by a client, or you're simply too exhausted at the end of the day to engage with others after hearing about someone's misery for hours. I've struggled not a few times with bouts of total fatigue and burnout, wondering why I wanted to take on what seemed to be an insurmountable task. But, like a blank sheet paper, there is always the thought that just maybe something extraordinary will fill the page.

I started my legal career almost two decades ago, and in that time I have met people from just about every corner of the world. There is no doubt that my work has made for many lively conversations at cocktail parties. Yet I also carry some of the delicate stories of my clients safely like eggs in a basket. Some will inexplicably stay with me over the years, like the young, soft-spoken Ethiopian man from a nomadic family who was tortured by his country's former regime. He spoke no English, but his French was perfect; he'd studied at the Alliance Francaise in Dire Dawa since his grandfather had worked for a French railway company that provided free education for its employees. A taxi driver had found him wandering, lost and confused, at the train station in Washington, DC and brought him to me. I worked at Catholic Charities then, and was perhaps the only French-speaking immigration lawyer in town who didn't charge legal fees. The Ethiopian was relieved to meet me, and a smile spread across his face when he heard the familiar language which I spoke to him. We had the common thread it took to get things done, and he recounted his story of imprisonment and brutality as I prepared his application for asylum in the United States.

Honestly, there were other clients whom I secretly hoped would be deported, even while I zealously represented them. One was a smart-ass Bosnian with an overblown sense of entitlement who had fled the horrors of the war in former Yugoslavia. He was living the American dream, having earned his university degree and a well-paid job, but immigration authorities were threatening to take it all away. He was my client because I believed he shouldn't be stripped of his "green card" for a lie he had told out of desperation when he filed an application in a United Nations' refugee camp several years ealier. But he was frustrated by an ambiguous system of justice, with mounting expectations of what I could do for him that were ignited by a fear of the unknown, and he took it out on me. After putting up with his many demands, I'd be overcome with a fantasy of him being put on a plane bound for somewhere far away. It's often easier to cope in this raw way rather than to admit you are an impotent cog in the Government's wheel.

I've also traveled a distance since the beginning of my career-- from Rochester to Washington, DC, San Francisco, and back to Buffalo, my hometown. I have migrant blood too. My maternal grandfather immigrated with his family to France from Spain during the First World War. They'd been humble orange pickers in Spain, my grandmother reminded me when I started representing migrant farm workers, as though there were a bit of destiny in my life. The boys in my grandmother's village in the French Alps would tease her when she began dating my Spanish grandfather. "Aren't French boys good enough for you?" they would taunt her.

On my father's side of the family there were men with elegant black mustaches who had emigrated from Spain to Argentina, and to Cuba, where they learned the profitable trade of tailoring which they brought back to the motherland, passing it along to the next generation, down to my grandfather, whose shop still remains on an elegant main avenue of a city in Northwestern Spain. Until not so long ago, Spain was a poor country that sent waves of its people across the ocean to the Americas, as had Italy and Ireland. It strikes me when my Latino clients, on the verge of being deported from the United States and noting immediately my dialect of Spanish, inquire about the possibility of immigrating to Spain, where, at least, "they speak our language."

I arrived at the Port of New York on the H.M.S. Queen Mary; a chubby, wide-eyed French toddler, holding my mother's hand, with a child's small cardboard suitcase in the other, my father trailing a bit behind us. It must have been raining the day we landed in July 1966 because my mother and I wore raincoats and my father carried an umbrella. It isn't the image of the immigrant arriving at Ellis Island desperately hoping for a better life. My mother was much too chic in her strappy sandals clutching a boxy beige handbag, but I am "off the boat." My father had received an offer to teach Spanish Literature at the University of Michigan to a bursting generation of Americans who were entering college in droves. And though the U.S. was undergoing a cultural revolution and a political transformation unmatched in decades, especially on university campuses, my parents seemed to have much simpler things on their minds as they stepped off the ship into a new life, like how to decipher the baffling language and find comfort in the quick rhythms of this country.

My parents both held doctorates and a traditional European idea of education when they came to the U.S. They did not settle into a gritty, urban, immigrant enclave where day-to-day life could be transacted in their native language and culture, and store signs advertised and overflowed with familiar goods. The immigrants with whom they associated were generally equally educated, and employed at or attending the universities where they taught. At the time, food products from home were not easily accessible as they are today, so my family made do with Wonder Bread, Triscuits and Muenster cheese, and simply enjoyed baguettes, croissants, pate and sheep's milk cheeses on our annual summer trips to Europe.

Conversations at our house when I was growing up revolved around literature, theater, film, art, and sometimes, when guests came to enjoy my mother's five course French dinners with an abundance of wine and champagne for dessert, the discussion would turn to international politics. In daily life my parents assimilated well, with the nuances of the English language being perhaps harder to overcome, especially nonsensical prepositional verbs. Call up a friend, hang up the phone, write down a phone number. To this day my father, the Spaniard, pronounces "sheet" shit and "shit" sheet. My mother still demands of me, "is that yes or no?" when I utter that incomprehensible "uh-huh." And like many immigrant children, I was asked by my mother to answer the telephone to find out what an anonymous caller wanted, since she had a difficult time understanding English without the benefit of observing the speaker. Besides the fact that my mother could make fruit tarts, choux a la creme, crepes, and baba au rhum, she never once baked a chocolate chip cookie. Regardless, I grew up in the suburbs like many other white American children.

People say it's not surprising I became an immigration lawyer with such a background, but I still think it is, since I grew up in an upper middle class setting raised by highly educated parents, where I wasn't really a foreigner except when I had to pull out my "green card" to cross the Peace Bridge from Canada. I could have become a tax lawyer just as easily. I actually went to law school thinking I'd become a consumer lawyer. But now when people ask me what that field is about, I realize I don't even really know anymore. I stumbled onto immigration law almost by accident, and have come to belong to a world that was never really mine.

On a record-breaking hot and muggy evening in mid-August, less than a month after I'd taken the exhausting bar exam, I was charged with distributing little red "Know Your Rights" booklets in English, Spanish, and Haitian Creole to the migrant farm workers who traveled to Upstate New York from June through November for the lettuce, cucumber, peach and apple harvests. My prospective employer wanted to know whether I could handle this novel responsibility which was not taught in law school. So during the job interview I was taken on a tour of the migrant housing in counties along Route 103, north of the Thruway that crosses the State and is parallel to Lake Ontario. One of the agency's attorneys and I went resolutely from migrant camp to migrant camp until well after the sun had set. I noticed right away that the camps were purposely hidden from sight, shielding an uncomfortable reality from the passersby in what was otherwise an idyllic countryside smelling of moist, fertile green earth. The workers, who were often preparing or eating their supper when we arrived, were very interested in and grateful for the legal information we brought. They asked lots of questions, especially about their wages. "Are we supposed to get minimum wage? Are they allowed to deduct housing costs from our pay? Can we get overtime?" Those without documents wanted to know how they could get a work permit. An immigration amnesty law had just been passed, and these people were keenly aware that getting papers to live and work in the U.S. would make their lives much easier and allow them to plan a future.

The farm workers lived as single men or as families in decrepit, weather-beaten trailers, colorless cinder block housing, and shack-like structures devoid of personal touches. They kept their belongings in boxes or crates, or hung them across clothes lines. In one place, two Haitian families drew the only water from a spigot behind the trailer they all shared and it only ran cold. That night, I saw something I had never seen up close-- poverty. Decent people who remained poor though they traveled with our country's harvest, and woke up at dawn six or seven mornings a week with a long day's work ahead of them in the steaming summer sun. The idea that all one needed to live well was to make an honest living cracked around me. Until that point in my life, poverty had only been a theoretical discussion.

A year or so after starting my work, I went to Mission, Texas to conduct depositions in a lawsuit my agency had filed against a local grower. Mission, in the Rio Grande Valley along the border with Mexico, is home to many of the Latino migrant farm workers who make up the migrant stream that winds its way north for the harvest during the summer months. It's also the gateway to America's abundance for many impoverished Mexicans. They arrive by land, over the bridges, wading, swimming, or even inner-tubing across the great river. With papers and without them, they hope to earn a decent wage and send money home. Poor countries' economies receive up to $230 billion annually from such remittances from their citizens abroad and Mexico is no exception. The clients I represented in those days lived in South Texas during the North's cold season, or in Florida, where they picked oranges in the winter after winding their way back south following the apple harvest in New York.

The Florida migrant stream was more diverse than the Texas stream, and included not just Mexicans and Central Americans, but Jamaicans and Haitians as well. Decades earlier this same migrant trail had been traveled by African-Americans, as exposed in the television documentary, "Harvest of Shame," by the legendary Edward R. Murrow, which aired on Thanksgiving 1960. In the movie, Murrow solemnly tells unknowing Americans, "This is the way the humans who harvest the food for the best-fed people in the world get hired. One farmer looked at this and said, 'We used to own our slaves; now we just rent them.' " This circular movement of people that follow our nation's harvest is probably hardest on the children who often tag along with their parents, and whose well-being is jeopardized without the stability most kids crave in their lives.

Picking produce is dangerous work. The U.S. government reports that agriculture is the most dangerous industry in the nation, and in Florida, the Jamaicans and West Indians do the most dangerous work-- sugar cane cutting, an excrutiating task introduced to the Caribbean during the 17th and 18th century slave trade. Sugar, discovered by Europeans in Egypt, was among the most profitable goods of that era given the West's demand to satisfy its sweet tooth . The men who cut cane do most of cutting bent over at the waist, using a sharp cutlass to rhythmically cut the crop in the proper manner. Injuries are obviously common. Still today, I occasionally come across a former cane cutter who entered the U.S. on a special visa and never left. I always praise him for his past work. Usually he'll look at me with a surprised look, but will inevitably grin and nod, and probably wonder how it is that I, a white girl from the suburbs of America, recognize a cane cutter. One recently confided in me that sugar cane can soften the skin.

In the lawsuit we filed on behalf of the Mission workers, there were allegations of false recruitment promises. Three families had been enticed by an unscrupulous farm labor contractor to travel to a small farming town near Buffalo to work for an area grower during the early summer harvest. The contractor, acting on the grower's behalf, promised the workers a certain wage and other benefits, which they never received. At the depositions, one of our clients, a middle-aged Mexican woman, was being aggressively questioned by opposing counsel about the conditions at the migrant camp where she'd lived with her husband and children, since we'd contended they'd been sub-standard. She was already nervous about the ordeal and was responding shyly to the interrogation, but she didn't know what to say when the grower's attorney sarcastically queried, "how can you complain about the free housing up in New York when the houses down here are just as bad, if not worse?" I'd been to her home in Mission. While it was certainly a very modest little house, she and her husband owned and took care of it. It was filled with mementos of her children's accomplishments and with the hopes of a close-knit religious family of three generations, much like the homes of the Italians who arrived at Ellis Island at the turn of the 20th century. Our client and her family had hosted us there with graciousness and generosity, setting a table of spiced chicken, frijoles, homemade tortillas and other Mexican food we crave in the Northeast.

The impact of the years I spent representing migrant farm workers unwittingly determined my professional life. Representing farm workers, 93% of whom are foreign-born, and half of whom have no papers allowing them to work in this country, though wanting nothing more than to contribute, led me into immigration law. I've spent most of my career representing those who cannot afford to pay a lawyer. Even when I went into private practice for a brief three years, I could not let go of my sense of commitment to these hard-working, determined and idealistic people, and was frustrated by the constant fee-collecting that characterized private practice. Representing mail-order brides, simply because there was a someone willing to pay for the service, did not live up to my expectations of working toward justice.

The controversy around immigrants is an old debate that keeps arising anew, particularly during troubled times such as these. In the way African-Americans have been associated with crime, Latinos are tagged as "illegals" crawling over our border and threatening our orderly Anglo-Puritan way of life. Most recently, Arabs and Muslims have gotten caught in the cycle as today's "terrorists" who have no respect for our democracy. Benjamin Franklin once made blistering statements, aimed at Germans in 18th Century Pennsylvania. "They will Germanize us instead of our Anglifying them." He feared that new immigrants would "swarm" into our neighborhoods without regard for our laws and customs and values. Why, he asked, should we suffer outsiders who prefer ethnic enclaves where they "establish their Language and Manners to the Exclusion of ours?" The painful truth, he added, is that these newcomers are so culturally different from us that they will never assimilate like past immigrants, posing a grave threat to the society we cherish. Apparently, later in life, Franklin became more forgiving in his ideas, and recognized the economic benefits of immigration. It seems that as the historical wheel turns, Americans have consistently come to the same conclusion.

When I was in private practice, I was contacted by a personal injury attorney in Syracuse, NY. What he told me sounded sadly familiar. At least ten migrant farm workers, mostly Guatemalan, had been living in grower-owned housing in a rural area north of Syracuse when a propane tank in the kitchen exploded while they slept. The housing was described by the press as a "two story concrete block structure" that was "leveled" by the explosion. The County Sheriff reported that emergency crews did not even know how many had been in the building. "You don't know how many people are there until they report for work in the morning," he told reporters. Seven or eight workers were taken to a hospital in Syracuse. Some fled before they could be helped, no doubt fearing immigration authorities, the migra, would come for them along with the ambulances. One man was killed, and five others were so badly burned they were unidentifiable. A deacon from the Spanish Apostolate of the local diocese, whom I knew well from my farm worker days, was at the hospital helping out as best he could. The P.I. attorney asked me whether I could be available in case Immigration showed up again at the hospital. They'd already been there asking questions even though the victims were heavily sedated with morphine. I wondered to myself what these workers had been promised when they went up there to work.

Private practice also brought some rewards, unlike the mail-order brides, like helping a twenty-something Somali woman with two little boys who'd entered the U.S. as a refugee when she was just shy of fourteen. As a girl she had been placed into deportation proceedings in Buffalo. She was barely sixteen at that time, and had spent less than one year in the U.S. after fleeing the violence in her native Somalia. She left her home in Mogadishu as civil war ruthlessly ripped the city apart. She'd witnessed militiamen shoot her father, beat her mother and leave her for dead, and rape her eldest sister. In the chaos, the girl was told to run away with the neighbors, loyal clansmen who could help her get out of the country to safety. She and one of her brothers fled and left behind their parents, siblings, and all that they had ever loved. After a day or so on the road to Kenya, away from the brutality, her brother was shot to death. The caravan they'd been riding with was stopped at a checkpoint by militiamen demanding identification. In a nervous panic, the brother inexplicably jumped off the truck and sprinted. The bullet hit him in the back and he collapsed, face down on the dusty, unpaved road. His sister could do nothing but watch as the truck pulled away.

The Somali girl and her clansmen's family arrived at a refugee camp in Kenya. The neighbor couple in whose care she'd been entrusted died, but she remained with their son's family. The family, which now included this girl, was interviewed by immigration officials and was admitted to the U.S. as refugees. She arrived in the U.S. just before a wintry Christmas. The photo on her arrival documents is of a full-cheeked girl with curious eyes who looked extraordinarily innocent despite her ordeal. Her head is covered with a hijab and she smiles sweetly at the camera. I have no doubt she was polite and always respected her elders.

Unfortunately, the family who saved her life made the girl pay dearly for its charity. After moving to the U.S., and settling with them near Washington, D.C., she was not allowed to attend school. Instead, she became the family's servant and was subjected to physical abuse at their hands. Then, in a truly cruel act, they drove the quiet girl to a department store in the Buffalo area, telling her the journey was simply a family shopping trip for winter clothes. Once they arrived at the store, they instructed her to go find a coat she liked. When the girl went to find the family at the spot where they'd left her, no one was waiting for her. She waited and waited, and then began to cry.

The girl never really understood what had happened to her while in Buffalo, and certainly did not realize that Border Patrol had put into deportation proceedings, alleging that she'd gone to Canada and returned to the U.S. without proper papers, which meant that she was obligated to appear in court before an immigration judge. She never came back to Buffalo once she caught the bus back to where she'd come from and was placed into foster care. She went on to build a life in this country, going to high school, learning English, working in fast food, and having two children. But as a result of ignoring the requirement to attend court, she was ordered deported in abstentia. She never had reason to think anything had gone wrong since just a couple of years after she'd been apprehended at the border near Buffalo, she received a "green card." Seems one hand of the government did not know what the other was doing. Unfortunately, it finally caught up with her when she tried to become a U.S. citizen.

Although half of all migrants in the world are women and the number grows each year, I now almost exclusively represent men facing deportation. In the federal detention center that houses these men whom the U.S. Government is seeking to deport because they are here illegally or are "green card" holders who've been convicted of crimes, even minor ones, I am always struck by the commitment of the women who visit them. Some of the women come almost daily for several months, often with young children or infants in tow in the dead of our notorious winter. They drive for hours to this unknown farming town forty miles east of Buffalo where an unassuming, yet state-of-the-art, immigration prison was built after Congress declared mandatory detention for all those subject to removal from the U.S. There they wait patiently in the lobby until their names are called. They've completed a number of forms, have had their identities checked on visitors' lists, and entered their names in log books, just for a thirty minute conversation with the man of their lives, separated from him by a wall of plexiglass. If they must share the visit with another loved one, they will have even less time to catch up, since all visitors must share the allotted half hour. I am told that some wives and girlfriends don't even bother to make the long trip from New York City for only a half an hour daily visit.

Many of these women have also emptied their modest bank accounts to pay hefty attorneys' fees in a desperate hope of keeping their family together, not realizing that redemption is not a word in the immigration vocabulary. Then one day, I no longer see a familiar woman in the lobby and I know her man is gone, most likely forever.

These women must be quite resilient, and the genuine sacrifice they make to maintain their brittle relationships with men on the brink of deportation is either impressive or sadly pathetic. I see many of the detained men regularly in the legal workshops I give at the facility, and it is clear that not all of them share the same level of commitment and respect to their women. Yet even the most macho among them will play along if need be since detention brings long stretches of boredom, and a visitor, especially a woman who loves you and dresses up for the occasion, is a very welcome distraction. She brings him the comfort and cash he needs while in jail, even when he just brings her heartache when he's home. Of course, some women have let me know in no uncertain terms that they are fed up with the bullshit, and they will play no role in trying to defend him from deportation, but of course, those women don't even think of coming to visit.

U.S. citizens are rarely exposed to the labyrinth that is immigration law unless they face the process themselves, usually by marrying or befriending a foreign national. One of the most frustrating aspects of my work is trying to make a citizen understand what every undocumented person inherently seems to know: that there are very few avenues to legality, and those lucky enough to get papers can still lose them if they go astray. When I meet a U.S. citizen and her immigrant loved one, the first reaction I get when I say that there's nothing I can do, that the law simply offers no means by which this person can stay in this country, is a determined, "that can't be There must be something that can be done." I often bite my tongue because I want to say, "you just don't get it, do you? This is the tale of every immigrant. I have known many, many such deserving people. But the way we feel about immigrants is in our newspapers every day-- Americans want to close the border to more immigrants." Obviously, she thinks her beloved nanny's or fiance's plight is the most terrible situation of injustice she's ever encountered. But she's only encountered that one. I haven't though. So I seem hardened and callous with my routine responses and lack of compassion.

Sophie Feal

August 2007

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The Price of Justice

I’m beginning to conclude that justice, or at least access to justice, can be bought. I do not make this cynical statement lightly as I realize it is contrary to all that we, as American lawyers, hold true. And as an attorney who’s practiced almost exclusively for twenty plus years in the non-profit sector, representing the poor, it is an especially troubling idea to accept. Nonetheless, I have been involved in representing a man for over ten years at a cost of well over a few hundred thousand pro bono dollars, and it is very obvious that, had it not been for all of the generous lawyers who donated hours upon hours of time at their own expense, my client would have been deported from the United States many years ago, leaving behind a U.S. citizen wife and five wonderful, bright children who adore their father. Few people have the means of an O.J. Simpson and have ever had available to them such a wealth of legal talent and resources to accomplish what I’ve seen in this case. So what other conclusion can I draw about what money can buy?

I met Bruce McDonald, a native of Jamaica, on October 10, 2000 at the federal detention facility in Batavia, NY, one year after moving from San Francisco and accepting a position as an Immigration Attorney with the Volunteer Lawyers Project in Buffalo. His mother, whom I never had the pleasure of meeting personally, was a naturalized U.S. citizen. She had written me a desperate letter in early 2000, while Bruce was still incarcerated on a criminal conviction, asking me to help her son who was going to be deported to a country where he had no remaining relatives. While this isn’t the first, and will certainly not be the last, plea for help that I receive from an anxious family member, I would have never guessed back then how much time and energy I would put into attempting to fulfill this particular woman’s request, especially since her son initially had no relief from removal. One pro bono attorney who was involved in the case by representing Bruce at the U.S. Court of Appeals, recently wrote to me, “even though I only came on at the tail end, my involvement in this case has been going on so long that in the interim I married, had a baby now 20 months old, left the law firm and moved to New Jersey.”

When I met Bruce all those years ago, he was in removal proceedings on account of a gun possession conviction from 1991, for which he’d been sentenced to a conditional discharge and served neither jail time nor probation. Immigration authorities had never before initiated deportation proceedings against him, but in 1999 he was convicted of a marijuana sale offense and had served eight months in prison, which brought him to the authorities’ attention.

Bruce was born in Jamaica, but moved with his mother and three siblings to New York City as a permanent resident in 1976, when he was not yet fourteen years old. For over two decades, he has lived in Ithaca, where he met and married his wife, an Ithaca native who was only eighteen when the two began dating. Since then, he has steadily worked in the area’s restaurant business as a chef, garnering nothing but support and praise from his employers and co-workers for his dedication, competence and kindness. The couple has five children. The eldest attended a school for the gifted and an after school program which their mother ran for several years at the Greater Ithaca Activities Center (GIAC). In 2005, Bruce voluntarily created a cooking program for the kids at GIAC. The couple’s oldest daughter is now entering college. Last I knew she wanted to become a doctor.

I recall the first time I met Bruce’s three oldest girls. They were in the waiting room of the Immigration Court with their mother and father to appear at a 9AM hearing for which they’d gotten out of bed at least four hours earlier. There they sat slouched and huddled together, bundled in warm, colorful winter clothing, looking like an ad for Benetton. They were undoubtedly too young to understand the severity of what could happen in that courtroom, but knew that they never, ever wanted their loving, bear-sized father to go away. They smiled at me shyly as they slipped in and out of sleep and boredom.

During our first meeting, Bruce explained to me that the defense attorney who had represented him on the drug charges had advised him to take a guilty plea to the sale offense with which he was accused, and not worry about deportation. “You’ve been in the U.S. too long. Immigration won’t deport you,” his attorney had told him. So Bruce took the plea. Unfortunately, any sale of a drug under U.S. immigration law (including attempt to sell, intent to sell or possession with intent to sell) constitutes an aggravated felony , and there is virtually no relief from removal in such cases, no matter how strong one’s ties are to the United States. I told him there was probably nothing I could do for him in light of his conviction. He was going to be removed. Fortunately, given how old his 1991 conviction was, I was at least able to get him a bond from the Immigration Court in Batavia. Upon his release from immigration custody, he returned to his job and family.

When I contacted Bruce’s criminal defense attorney to learn what had happened in the more recent criminal case, I received an unexpectedly candid response. He admitted to having told Bruce that he would not be deported if he took the plea to a controlled substances sale, after having been advised of this by an immigration official whom he’d contacted in an attempt to find out what might happen to his client if he were convicted. So Bruce pled guilty, even though he had available to him the “agency defense”—that he only had told the undercover cop where she could buy marijuana, but had never sold any to her.

On September 29, 2001, Bruce successfully completed his term of parole for the drug offense, and has never again been arrested since 1999. The parole officer reported, in a letter to the Immigration Court, that Bruce was dedicated to his family.
Given the defense attorney’s complete willingness to cooperate, I enlisted my first attorney volunteers. Manuel Vargas and Al O’Connor from the New York State Defender’s Association (NYSDA), two very experienced lawyers, one in immigration and the other in criminal law, agreed to challenge the existing case law on what constitutes ineffective assistance of counsel in a case involving an non-citizen criminal defendant and his right to know the immigration consequences of taking a certain plea. First, Al took Bruce’s criminal case to the state appellate court for the Third Department, which upheld the convictions. He next appealed to the New York Court of Appeals, the state’s highest court. In its decision, People v. McDonald, 1 NY3d 109 (2003) , the Court held that while a defense attorney’s inaccurate advice on the immigration consequences of a guilty plea indeed constitutes ineffective assistance counsel, a defendant must show a reasonable probability that, but for counsel’s erroneous advice, he would not have pled guilty and would have insisted on going to trial. Therefore, the Court refused to vacate Bruce’s conviction.

Immediately after the Court’s decision, the Department of Homeland Security’s immigration authorities charged Bruce as removable from the United States on account of his conviction for an aggravated felony drug charge. Unfortunately, because the conviction remained standing after the Court of Appeal’s ruling, Bruce was also taken back into immigration custody, where he remained for another month until the conviction was finally vacated. During that time, his wife was left in Ithaca alone, working full-time and caring for the children, missing the compassionate man who was committed to his family. She began to rely on her own father for help in caring for the kids, and found it extremely painful to explain to the children where their father was and when he was coming home. They were scared and confused, and what she wanted most for her kids was stability.

In June 2003, I left VLP and went into private practice, taking Bruce’s file with me, and continued to work on the case pro bono with the support of my colleagues at the new firm. Jill Apa, a smart and compassionate immigration attorney who is now with Damon and Morey in Buffalo, was my closest advisor during the three years when I was in private practice handling this case, and she remains dedicated to it to this day. On January 7, 2004, only five days after his mother’s death , I represented Bruce at his hearing before the Immigration Court, which denied him the opportunity to apply for any relief from removal because he was an aggravated felon.

After Al O’Connor had finished his legal task, Adam Schaye and Stephen Yale-Loehr of Miller Mayer in Ithaca, NY undertook the challenge of attempting to vacate Bruce’s drug conviction for a second time. Adam skillfully argued that Bruce had been prejudiced by his attorney’s poor legal advice and would have never taken the plea if he’d clearly known its severe immigration consequences—that he’d be automatically deported. When they were successful, I was able to obtain Bruce’s freedom from immigration custody once again. While he was out on bond, Bruce’s fourth child and only son, an active and curious little boy who is now eight years old, was born on Christmas Eve, and Bruce returned to his former job at an Ithaca restaurant and set up his own Caribbean cuisine catering business on the side.
Once the drug charge was no longer a part of Bruce’s criminal record, I appealed to the Board of Immigration Appeals and obtained a remand of the removal proceedings. Since Bruce’s aggravated felony conviction had been vacated, he became eligible for relief from removal and the Board ordered the Immigration Court to consider his application for a waiver, which involved a weighing of Bruce’s equities against unfavorable factors, including his crimes. The trial on the merits of Bruce’s application for a “cancellation of removal” waiver took place in August of 2004. Both Bruce’s wife and his oldest daughter testified, and we had a wealth of supporting documentation. Nonetheless, in a lengthy written decision, the immigration judge ordered Bruce deported a few months later, finding that his equities did not outweigh his criminal convictions. He reasoned that Bruce’s young kids were better off without their father as he had a “destabilizing” effect on his children’s lives. We took another appeal, but lost.

Meanwhile in April 2005, the District Attorney of Tompkins County in Ithaca brought a new criminal indictment against Bruce, charging him again with drug sale offense arising from the 1999 incident. Our team of pro bono attorneys agreed that the case had to go to trial this time, so with the help of the Miller and Mayer attorneys, we recruited a talented trial lawyer, Scott Miller of Holmberg, Galbraith, Van Houten and Miller in Ithaca, to handle Bruce’s case. Scott conducted a three day bench trial and succeeded acquitting Bruce of six of the eight charges brought by the District Attorney. Thus Bruce’s only remaining convictions were for two misdemeanor possessions of marijuana in the fifth degree, and he’d finally been vindicated in the criminal justice system. Now the battle which remained was on the deportation case. To help us communicate, Scott also set up “Bruce List,” a list serve through which all of the volunteer attorneys involved in the matter could quickly and effectively communicate as the need required.

As well by this time, the press had become very interested in Bruce’s case and this group of pro bono attorneys from across the State who was so committed to the plight of one man. The New York Law Journal called us a “tag team of lawyers.” The Ithaca Journal kept a watchful eye on the case, reporting on every development, and an incredible amount of support was unleashed for Bruce in the Ithaca community. I began to receive countless calls and emails from people who wanted to help Bruce, average citizens of Ithaca as well as elected officials. Congressman Maurice D. Hinchey came forward with a letter of support on behalf of his constituents in the Ithaca community.

When we lost our appeal at the Board of Immigration Appeals on March 16, 2006, despite the new trial and the acquittals, our only recourse was to challenge the removal order in the U.S. Court of Appeals, a process that is extraordinarily expensive and time-consuming. We also had only thirty days to file the required petition for review. It seemed we had reached the end of our pro bono efforts on Bruce’s behalf. Additionally, since Bruce now had a final order of removal, Immigration and Customs Enforcement (ICE) agents showed up at his new restaurant in Ithaca, Jamaica Pat’s, to arrest and detain him. He was led away in handcuffs in front of his wife, who was eight months pregnant at that time with the couple’s fifth child. The community of Ithaca, upon learning the news through The Ithaca Journal, organized meetings and a petition drive in an attempt to gain his release. In a pointed editorial dated April 12, 2005, The Ithaca Journal wrote that, “Bruce McDonald is no angel. None of us are. The judicial system concluded he possessed marijuana… but if the law were to require everyone who ever possessed marijuana to be forcibly taken from us, there would be a lot of broken families and abandoned lives in Tompkins County… McDonald has paid more than enough for his legal odyssey. If the law allows him to stay with his life in our community, justice has been served.”

Luckily, Manny Vargas of NYSDA, who is based in New York City and has generously contributed his expertise on this case since day one, was able to convince the prestigious law firm of Shearman and Sterling, LLP to become involved in Bruce’s case. Parth Chanda and Alessandra DeBlasio, two young associates, stepped in, bringing with them a new dose of enthusiasm, which we all needed, especially me. Sadly, Bruce’s youngest little girl was born while he was detained by DHS, in the same month we filed our petition for review with the U.S. Court of Appeals for the Second Circuit. I returned to VLP later that year, and brought Bruce’s file back with me.

Parth and Alessandra were a great addition to our cadre of committed lawyers. Parth drafted the petition for review and a stay of removal, sometimes communicating with me by email from his office at 10pm at night, while I sat comfortably barefoot at my home computer after my two kids were tucked in bed. Given Parth’s dedicated work, we were able to get Bruce released from custody once more since his removal order was no longer final, but now on appeal. Ultimately, Parth was able to negotiate a stipulated agreement with the U.S. Attorney’s Office which resulted in a remand of Bruce’s case to the Board to reconsider its previous decision, given that both the immigration judge and the Board still wrongly characterized Bruce as a drug dealing aggravated felon. When Parth had to travel abroad for several months to handle some of his firm’s “real” work, Alessandra stepped in. Alessandra came into the matter with extraordinary commitment, addressing all the little emergencies that needed attention along the way. She also thoroughly briefed Bruce’s remanded case before the Board.

As if the case wasn’t long and complicated enough, we learned several months too late that the Board had issued a decision dismissing our remanded appeal in June 2007. Unfortunately, Shearman and Sterling never received the decision and so the thirty days in which to file another appeal had lapsed. Alessandra immediately phoned the Board and learned that for some unexplained reason, the decision had been returned to them as undeliverable. It defies the imagination that a correspondence addressed to one of the nation’s largest law firms, which sits on Lexington Avenue in mid-town Manhattan, could not be delivered, but I’ve seen it all in the field of immigration, so why not this too? Alessandra acted quickly and filed a motion requesting that the Board reissue its decision. The motion was granted and she then filed with the Board a timely motion to reconsider. Her motion was granted on July 30, 2008 after she’d returned to work from a brief maternity leave as the mother of an adorable baby boy. Alessandra succeeded on the remand because the Board had erroneously stated that Bruce had been convicted of burglary in the early 1980’s, when in fact he had incurred only a non-criminal trespass violation at the time.

Upon news that the motion had been granted, and that the decision remanding the case back to the immigration judge contained favorable language ordering the judge to consider whether Bruce was rehabilitated, our “Bruce List” buzzed with potential strategies. We realized that we would now need another volunteer attorney to handle this new stage of our odyssey. Jill Apa stepped in this time and recruited a young, but very competent litigator from Damon and Morey named Meghann Roehl. Meghann handled the remanded trial before the Immigration Court pro bono, presenting all of Bruce’s compelling equities once more, and perhaps most importantly, showing that Bruce’s criminal behavior is long behind him, and that he had no criminal arrests in the previous ten years. Even the new District Attorney of Tompkins County wrote a letter of support for Bruce citing the negative effects of an absent father on the development of children.

Nonetheless, the immigration judge ordered Bruce deported once more, finding that his lack of criminal acts in a decade was not a favorable equity. I appealed the judge’s August 4, 2009 decision, and Bruce and his family were again left hanging.
Undoubtedly, it can be concluded that the total cost of this extraordinary legal representation runs in the six figure digits. However, it is not an extravagant defense we have waged given what’s at stake here. Arguably, it is one that many, many people should be entitled to present when they face permanent banishment from the United States, the country they’ve called their own for over thirty years, and where they’ve set deep roots. Eighty-four per cent of detained non-citizen men and women who face removal proceedings in this country have no legal representation, not even for their first hearings before the Immigration Court, let alone for any appeals or collateral attacks on criminal convictions. As a legal community, this should profoundly trouble us.

In addition, as a nation, we must take a careful look at our immigration laws and decide whether they are costing us much too much. Congress’ attempt at immigration reform in 1996 left us with the mandatory detention law and aggravated felony definition that has caused so much suffering in Bruce’s family’s life. This law should be re-examined under any new reform attempts, as we also consider the plight of tens of thousands undocumented people in the country. Immigration judges should again be empowered, as they were prior to 1996, to make the decision, based on the equities, about whether a permanent resident stays in the U.S. despite his or her criminal convictions. This is simple due process.

Recently, Bruce and we lawyers received some very encouraging news. After almost ten years of litigation, counsel for DHS stated, in her appellate response brief to the Board of Immigration Appeals, that Bruce has indeed accrued strong equities, that he “is a devoted father and husband, is gainfully employed, and has contributed to his community in a positive way.” The Government, therefore, is no longer opposed to a conferral of relief in this case.

Now our group awaits a decision from the Board with our fingers crossed and the hope that one day, very soon, we will all gather and finally meet each other face-to-face at a celebration in Ithaca. And maybe, just maybe, Bruce will serve his specialty—Jamaican food—and then get on with his life.

NOTE: It has been brought to my attention that I failed to thank one of the volunteers in this case. Ms. Sejal Zota of NYSDA was responsible for preparing Bruce's first Section 440 vacatur motion. Her role in the case was invaluable and I deeply regret having omitted her name from this piece._______________________________________________________________________

(i) At that time, immigration law enforcement was the responsibility of the Immigration and Naturalization Service (INS). Since March 2003, the INS no longer exists and this is now the duty of the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE).
(ii) This same issue is now before the U.S. Supreme Court, in Padilla v. Kentucky, and Bruce’s case was raised by those who submitted “Friend of the Court” briefs for the petitioner Padilla. The Court is considering the issue of whether a criminal defense attorney has an affirmative duty in all cases to properly investigate and advise non-citizen clients on the U.S. immigration law consequences of a conviction, and if not, whether providing incorrect immigration law advice is enough to set aside, or vacate, a guilty plea.
(iii) During the pendency of the proceedings Bruce also lost his sister to lymphoma.

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About the Author

Sophie Feal has been practicing immigration law for twenty years. She has been with the Immigration Project of the Erie County Bar Association Volunteer Lawyers Project (VLP), Inc. since 1999 except for three years when she was in private practice. Currently at VLP, she is the Supervising Immigration Attorney and concentrates her practice in the areas of deportation defense and asylum cases, with an emphasis on detained immigrants. At VLP, she is responsible for providing legal orientations to men detained by the Department of Homeland Security, and recruiting, training and mentoring pro bono attorneys to represent these individuals before the Immigration Court.


Ms. Feal was named by Upstate New York’s Super Lawyers magazine as one of the top attorneys in the region for 2009. In 2007 and 2008, Ms. Feal was elected by her peers in Western New York’s legal community to the Buffalo Law Journal's annual Who's Who in Law and in May 2008, she received the John R. Long Award from VIVE/La Casa, a Buffalo agency
that assists those seeking refuge in Canada, for her work with immigrants. While in private practice, Ms Feal received VLP's annual pro bono award for her volunteer work in the area of immigration law. She has served as the Chair of the Immigration Committee of the Erie County Bar Association, and is a member of the Bar Association's Human Rights and International Law Committees. She is also a member of the National Immigration Project.
Ms. Feal has published the following articles on immigration law:
• Still Hazy After all These Years: Persecution and the “Persecutor Bar” Standard (Bender’s Immigration Bulletin, April 15, 2009)

• Applicants for Admission or Arriving Aliens?: DHS Enforcement Tactics Against Refugees (Bender’s Immigration Bulletin, January 15, 2009)

• Expanding Borders, Diminishing Rights (New America Media, November 12, 2008)
• Shame of the Nation: The Treatment of Vulnerable Immigrants in Detention (Lexis/Nexis Expert Commentary, June 2008)
• On Matter of R-D- (Lexis/Nexis Expert Commentary, December 2007)
• Not Just a Matter of Time: The Concept of Abandonment of Permanent Residency Under Immigration and Nationality Law (Bender's Immigration Bulletin, May 2007), co-authored with Jill Apa, Esq.
• Two Steps Forward, One Step Back: The Future of Credibility Findings by Circuit Courts in Asylum Cases Under the REAL ID Act of 2005 (Bender's Immigration Bulletin, April 2006), co-authored with Jill Apa, Esq.
• Overwhelmed Circuit Courts Lashing Out at the BIA and Selected Immigration Judges: Is Streamlining to Blame? (Interpreter Releases, December 2005) with Gerald Seipp, Esq.
• Updated several chapters on asylum and removal proceedings for Matthew Bender's Lexis/Nexis legal treatise, Immigration Law and Procedure: Desk Edition
From 2003 to 2006, Ms. Feal was a regular columnist on immigration issues for the Daily Record and the Buffalo Law Journal, local legal publications.
Prior to returning to Buffalo, where she received her law degree in 1988, Ms. Feal was employed in immigration law at La Raza Centro Legal, Inc. in San Francisco, Catholic Charities Immigration Services in Washington, DC, and Farmworker Legal Services of New York in Rochester. Herself an immigrant, she was raised speaking French and Spanish.
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