by Alex Gilly
“Kristin Chase, public defender’s office. First time in Paradise?”
Mona nodded. She looked around at the crowd. “Is it always this busy?” she said.
“Operation No Return,” said the attorney, referring to the new law that made every reentry an automatic felony. “Keeps the place ticking over, as you can see. To speed things up, the judge hears a dozen cases at a time.”
Mona raised an eyebrow. “I’m guessing he’s not a due-process kind of guy,” she said.
The attorney sighed. “Judge Ross wouldn’t know due process if it came flying down the fairway at his country club and nailed him between the eyes. He’s a lock-’em-up kind of a guy. Every single person here’ll be back in lockup by the end of the day. It’s so predictable, my colleague hardly bothers showing up anymore. He doesn’t see the point,” she said, checking her phone again.
“Are they all like this?” said Mona.
“All? The county’s got only two judges, one bad and the other worse.”
“Which one’s Ross?”
“The worse one. No one wants to live in Paradise anymore. The town’s been dying since all the water dried up. Used to be crop fields all around. Now all the young people are moving to wherever you’ve just floated in from. LA, I’m guessing?”
Mona nodded. When the woman asked which firm she was with, Mona said, “I work for Juntos. Most of the time, I’m in immigration court.”
The attorney pulled a squirt bottle of hand sanitizer from her purse. “A lot of these people haven’t been medically screened,” she said, squeezing goo onto her hands. Mona caught a whiff of antiseptic. The attorney went on, “I’ve read about Juntos. Great outfit. But immigration court, that’s the civil system. You’re in the criminal justice system here. And believe me, it’s not a sanitary place. You’ll want some of this,” she said, offering the squirt bottle to Mona.
“I can’t see my client anywhere,” said Mona, declining the sanitizer. That stuff dried her skin.
“Sometimes they keep the overflow in the conference room until their cases come up,” said the attorney. “What’s the charge? Illegal reentry?”
“Illegal reentry,” said Mona, getting up. She remembered seeing the door to the conference room out in the corridor, and she wanted to talk to Carmen before proceedings started, if only to reassure her. But then came a hush, like a crowd on a platform when the train is running late: everyone peering in the same direction, on edge. A moment later, the judge walked in. Everybody rose.
The attorney whispered to Mona, “I’d wish you luck if I thought it would help.”
“Wish it anyway,” said Mona.
The attorney smiled. The judge didn’t. He shot Mona a look of displeasure. Judge Ross was a small, jockey-sized man who wore his gray hair trimmed short, army-style, revealing a diamond-shaped birthmark high on his neck. He wore thick-rimmed spectacles that would’ve been trendy on a younger person. When he sat in his high-backed chair, he seemed taller, and Mona guessed that behind his bench, he’d had a raiser installed beneath him.
The room stayed quiet while he spent a moment getting himself organized. Then he nodded to the clerk, who called the first case on the docket: a group of eleven defendants. They turned out to be the group already sitting in the jury box. The attorney sitting next to Mona was defending them.
The judge read out the charge: illegal reentry after removal. He said that the new federal laws provided for them to be arraigned together. The court’s time was precious, he said. He told them they were facing two years in jail, after which they would be deported. The judge spoke in English. An interpreter translated into Spanish. A court reporter tapped it all into his machine. Then the judge called each member of the group to stand and asked them one by one, “How do you plead?”
Every answer was the same: “Culpable.”
The judge’s mood visibly improved.
“Eleven guilty pleas means there’s no need for this court to set a trial date,” he said. “I am happy to hear statements from the prosecutor and the counsel for the defense right away, and then, if no one objects, this court can proceed directly to sentencing.” Mona noticed that the judge had looked at the public defender when he had said, with a slight emphasis, if no one objects.
Over at the other table, the prosecutor stood. Mona got the impression he was just going through well-rehearsed motions; he didn’t seem to have put much effort into preparing his case. He recounted how Border Patrol had found the eleven, thirsty and lost, in the desert outside El Centro. Their coyote had abandoned them. Six were Mexican, the rest were what Border Patrol dubbed OTMs—Other Than Mexican. He didn’t even bother giving their actual nationalities. They all had removal orders against their names, he said. It was a clear-cut case. He sat down, and the attorney next to Mona stood.
Her strategy, Mona was dismayed to hear, was simply to plead for leniency in sentencing. She reminded the judge that she was one of only two public defenders in Paradise—the other wasn’t answering his phone. She hadn’t had the chance to meet any of the defendants until that morning. Because the conference room was occupied, she’d been obliged to meet them in the corridor, a public place that made a farce of lawyer-client privilege; she’d spent at most two minutes with each defendant, enough time to note down their names and backgrounds, and to tell them that, without more time to work out a defense, their best option was to plead guilty to minimize their sentences. None of these people had criminal records, she said. They were just regular folk looking to improve their lot in life. The system was letting them down. Some of them were fleeing war or civil strife. Mona tried not to shake her head in contempt; the attorney was like a dog with the fight whipped out of her.
The judge sentenced all eleven to fourteen months in jail.
“This court will refrain from applying the full sentence to the defendants because they pleaded guilty, thus saving the court a lot of time and the taxpayer a good deal of money,” he said before bringing down his gavel.
Mona checked her watch. From arraignment to sentencing had taken fifteen minutes.
“Fourteen months is good,” said Kristin Chase in a low voice. “It means he’s in a good mood. He usually goes for eighteen, even with the guilty plea.”
“This is an outrage.”
The woman looked at Mona curiously. “This isn’t Santa Monica. There’s no crowd of activists waving placards outside. Judge Ross is probably the most popular figure in Paradise.” She paused, packed away her documents, then went on, “I’ve tried to do something, believe me. I wrote to our congressman. I’ve written letters to the Judicial Council. I wrote to the LA Times and The San Diego Union-Tribune. You know what that’s gotten me? I’m the most hated person in town. If people here had their way, I’d be the first person cast out of Paradise since the devil. This is his town,” she said, nodding toward the door to the judge. She watched sadly as the bailiffs led out the eleven. “The town’s dying, and people here are looking for someone to blame. Judge Ross just gives them what they want,” she said. “He’ll be reelected by a landslide.”
* * *
During the recess, Mona managed to corner the bailiff long enough to discover that Carmen’s case was the first on the docket after the break; she told him she absolutely needed to see her client beforehand. The officer left the room saying he would fetch Carmen, but didn’t reappear until twenty minutes later—just moments before the judge returned. Carmen arrived wearing shackles around her ankles and a frightened look in her dark eyes. Mona insisted the bailiff remove the shackles.
“You okay?” she said in Spanish.
Carmen forced a smile. That was all the conversation they had time for. The judge settled back into his high-backed chair and signaled for proceedings to resume. The prosecutor started reading the charge against Carmen as if he were calling a race at the track. The interpreter kept missing details.
Mona stood. “Your Honor, with your leave, we ask that opposing counsel slow down. The interpreter cannot
keep up, and my client isn’t fluent in English.”
The judge let his gaze linger on Mona for a moment longer than was courteous, then gave a nod. The prosecutor resumed, slower now. Mona felt the muscles in her jaw slacken.
The prosecutor began with a summary of what had happened out on the water in the small hours of March 28. He pointed out that the panga had been intercepted within U.S. territorial waters, that it had not been seaworthy, and in fact was sinking when the Interceptor found it. He emphasized that there had been four children aboard. He painted a picture of recklessly selfish people with no regard for the law or the lives of others. He made no mention of how Carmen had helped save a child’s life. He said nothing of the troubles they were trying to escape. Nothing about battery acid. Nothing about torture.
“When immigration agents at Long Beach processed these people, Your Honor,” he said, drawing out these people, “they discovered that this wasn’t the defendant’s first attempt to enter the country illegally: On August 26 of last year, agents at the San Ysidro port of entry discovered Ms. Vega concealed in the trunk of a car. On that occasion, according to her A-file, the acting deputy assistant district director of San Ysidro issued an expedited removal order on Ms. Vega. Furthermore—and again, these documents are all in the defendant’s A-file, Your Honor—Ms. Vega swore an affidavit on that occasion admitting to the misdemeanor charge of illegal entry and acknowledging that she was banned from reentering the United States for five years. So given her previous attempt, Your Honor, under Operation No Return, ICE officials at Long Beach had no choice but to charge Ms. Vega under 8 USC 1326—reentry after removal.”
The prosecutor made a show of gathering his thoughts before continuing, “Your Honor, it is the government’s position that the charge against Ms. Vega admits no doubt or dispute. But there’s more to it than a simple reentry charge. It’s one thing to hide in the trunk of an automobile; it’s quite another to put your own life, and those of others—including children—at risk. And yet that is exactly what the defendant did, in circumstances that can only be described as aggravating. We encourage the court to send a strong message to deter others from getting into unsafe vessels and risking not only their own lives but those of the brave men and women of our border force who have to rescue them. A strong message of deterrence is the humanitarian thing to do, Your Honor.”
The prosecutor glanced in Mona’s direction before sitting down. She wasn’t 100 percent sure, but she thought she saw a nod of assent from the bench. The judge shifted his gaze back onto her. She stood. Before she had a chance to speak, the judge said, “I don’t know you, Counsel. You’re not from the Paradise public defender’s office.”
“No, Your Honor,” replied Mona. “I’m from the not-for-profit Together for a Safer Border. I’m representing Carmen Vega pro bono—”
The judge waved some papers at her. “I know all that, Miss Jimenez. It’s all in this bio you provided, along with your motion to dismiss. What I mean is, we don’t know each other.”
“I’m not sure I understand, Your Honor.”
“Let me try to make it clear for you, Counsel. I don’t know you, and clearly you don’t know me. If you knew me, you’d know I don’t like a clogged docket. You’d know that I have never dismissed a border case and that I’m not about to start. If you knew me, you’d have known this motion of yours is a complete waste of time. And I don’t like wasting time, Counsel.”
“I just know the law, Your Honor—”
“I haven’t finished, Miss Jimenez.”
Mona said nothing. Specifically, she didn’t throw at the judge the cussword loitering under her breath. He waved the sheaf of papers again.
“Now, because I don’t like to waste time, I’m going to nip this in the bud. I started reading your motion in my chambers, Counsel. I got as far as the first page. You actually expect me to dismiss this case because you claim the defendant was illegally deported?”
“Your Honor, when the acting deputy assistant district director at San Ysidro signed the removal order on Ms. Vega on August 26, neither he nor any of the Border Patrol agents who took her into their custody that day informed her that she was eligible for relief from deportation. This substantially prejudiced my client, Your Honor, since it violated her right to due process—”
“Due process! She was hiding in the trunk of a car!”
“Your Honor, as the court well knows, every person who passes through our legal system is entitled to due process.”
The judge sniffed. “Do you know how many immigration cases were heard just in the Southern District last year, Counsel?”
“Yes, Your Honor.” She gave him the exact figure.
His eyes narrowed behind his spectacles.
“That’s more than were heard for drug offenses, Your Honor,” continued Mona.
“I don’t need a lesson, Counsel.”
“Very well, Your Honor.”
“My point is, there’s a national crisis, and we are the front line. Hell, just look around my own courtroom, Ms. Jimenez. I’ve got ninety-nine more cases to get through just today. I don’t have time for frivolous motions.”
“With respect, Your Honor, a violation of due process isn’t frivolous. As a point of law, the indictment against my client cannot stand. Since Ms. Vega was illegally removed on August 28 last year, she cannot now be indicted for reentry after removal.”
“Nonsense. The agents were well within the law when they removed Ms. Vega. She was attempting to enter illegally.”
“Your Honor, I don’t dispute that Ms. Vega entered the country illegally; I dispute that she was removed from it legally. The acting deputy assistant district director at San Ysidro overtly misadvised Ms. Vega that she had no possibility of relief from deportation, whereas in fact, Ms. Vega was fleeing persecution and therefore had an inalienable right to apply for asylum. As a result of the deputy assistant district director’s egregious haste, Your Honor, Ms. Vega was returned to Mexico, where she was subjected to horrific violence. The government improperly denied my client judicial review, and she almost died because of it. Moreover, Your Honor, as a point of law, since Ms. Vega was illegally removed, she cannot now be indicted for reentry after removal. If I may cite the Supreme Court’s opinion in the case of United States v. Mendoza-Lopez: ‘If USC 1326 envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceedings may have been, the statute does not comport with constitutional due process.’”
Mona became aware that in her outrage, she’d allowed the tempo of her speech to accelerate, and now the interpreter was struggling to keep up with her. She took a deep breath and looked apologetically in the poor woman’s direction. She’d broken a golden rule of court work: never get angry except on purpose. She looked down and took a deep, calming breath. When she looked up again, the judge had a condescending smile plastered across his small, round face.
“Let me see if I’ve got this straight, Counsel,” he said. “You’re arguing that if the border agents at San Ysidro had informed the defendant of her right to asylum when they caught her in the trunk of a car on August 26, she would’ve applied, and that by not informing her, they violated her constitutional rights, and therefore her removal was unconstitutional.”
“If it please the court, that’s exactly what I’m saying, Your Honor.” And so is the Supreme Court, you idiot, she thought but did not say.
His smirk widened. “So your argument rests on whether the defendant’s application for asylum would’ve been successful,” he said. “Because if it wasn’t successful—and I’m just following your own logic here, Ms. Jimenez—then the defendant would’ve exhausted all administrative remedies to her removal and the original order would’ve been legitimate. Is that right?”
“Your Honor, the outcome of Ms. Vega’s asylum application is speculative and therefore irrelevant in law, although I believe she has a strong case. The point is that s
he was not offered that recourse.”
“I get to decide what’s relevant or not in my courtroom, Counsel.”
“Very well, Your Honor.” Mona literally bit her tongue.
“On what basis would the defendant have applied for asylum?” said the judge.
“Your Honor, as the court well knows, that is outside the scope of this court—”
“Once again, that’s for me to decide,” said the judge, his voice rising.
Mona thought, What is this place? Where in hell am I? Does the law not apply here? “My client’s fear of persecution is genuine, Your Honor.”
“You haven’t answered my question, Counsel,” said the judge.
“Your Honor, Ms. Vega intends to apply for asylum on the basis of belonging to a persecuted group.”
“And which group is that?”
“Women in Mexico who experience domestic abuse, Your Honor.”
The judge laughed out loud. “That’s her claim? She’s persecuted because she’s a woman? Why not let in all Mexican women, Counsel?”
Mona thought of all the women murdered in Ciudad Juárez. If they’d been a few hundred meters north, in El Paso, they’d be alive today.
“While we’re at it, why not let in all women everywhere in the world?” continued the judge. “Do you think we ought to give asylum to all the women in the world, Counsel?”
“Only those who request protection from systemic gender violence, Your Honor.”
The court was dead quiet now. Everyone paying close attention. Mona could taste blood on her tongue.
“Asylum law requires that the social group claiming prosecution be visible, Counsel,” said the judge. “Otherwise, it’s not a group. Now, how in the world are you going to convince this court that women in Mexico who experience domestic abuse are visible as a distinct group? Do they meet at a clubhouse? Do they wear distinctive clothing?”
“For some groups, being visible is just too dangerous, Your Honor.”
