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A Small Victory in a Larger Fight: A Summer Bond Hearing During the COVID-19 Pandemic

Alex Schnapp, Akin Gump Strauss Hauer & Feld LLP
Everywhere immigrants have enriched and strengthened the fabric of American life.

John F. Kennedy

35th President of the United States, A Nation of Immigrants

Martín and his wife Isabel entered the United States in late February 2020, just weeks before the WHO declared the global outbreak of COVID-19 a pandemic, leading to lengthy quarantines in overcrowded immigration detention facilities around the country. A system already plagued by grueling injustice, due process deprivations, and human rights violations was steeling itself for another punch, one that would place hundreds of thousands of people in the crosshairs of infection.

COVID-19 notwithstanding, Martín’s story is a familiar one. He and his wife crossed the U.S.-Mexico border by floating across the Rio Grande, fleeing the only place they have ever called home. Martín faced threats and persecution from government officials loyal to Daniel Ortega’s Sandinista regime in Nicaragua, one that has grown increasingly authoritarian and violent in the face of any political opposition. According to the U.S. State Department’s 2019 Country Report on Human Rights Practices, in August 2018 Ortega’s government “instituted a policy of ‘exile, jail, or death’ for anyone perceived as opposition, amended terrorism laws to include prodemocracy activities and used the justice system to characterize civil society actors as terrorists, assassins and coup-mongers.” Even after Martín relocated, the harassment and chilling threats continued unabated. Leaving was the only option.

Martín and Isabel left Nicaragua in mid-December of 2019, and when they encountered CBP officers in the United States, they claimed asylum due to persecution on the basis of political opinion, were separated from each other, and were sent to detention centers in different parts of the state.

Isabel was released on a $15,000 bond near the end of May, and traveled to California to live with family members residing there. A few weeks later, ProBAR contacted Akin Gump regarding representation for Martín in his bond hearing, which had been scheduled for Monday, June 29. I agreed to represent Martín only a few days prior and got right to work. I spoke to Isabel over the phone, and Martín was able to call me from detention in Texas. In addition to the abysmal connection that made it nearly impossible to hear what he was saying, Martín had to re-dial a few times because calls are only permitted in 10-minute intervals. Luckily, I had Isabel to speak with at any moment. This allowed me to better gather details and serve as a more effective advocate than I otherwise could have been.

I quickly prepared a motion to appear telephonically and alerted the immigration court that I was now Martín’s lawyer. Despite this, and despite calling numerous times to confirm the hearing time and ensure I would be contacted, the court informed me on Monday that the hearing would be rescheduled due to the lockdowns at the detention center. I urged the court to hold the hearing, waiving the presence of my client as had been routine by this point. I was told the hearing would be rescheduled for July 1, two days later. I bit my tongue. Two more days that Martín would need to languish in detention, where he had been undoubtedly exposed at one point or another to a virus whose pathology we are only just beginning to understand. I fear that without representation, the court might have rescheduled the hearing to two weeks or even two months later.

I was fully prepared for Wednesday, and did not get a call from the judge until late afternoon, shortly before the court would close for the day. I had my arguments ready: (1) Martín had passed his credible fear interview demonstrating his asylum claim was legitimate, (2) Martín is not a flight risk because he has every incentive to pursue his asylum case and has family ties in California, and (3) Martín poses no danger to the community because he has no criminal history.

Unfortunately, the judge had already decided on the $10,000 bond amount before I picked up the phone. I had hardly one minute to advocate and make a case for a lower bond. He took the dangers of the coronavirus into consideration and decided that Martín was eligible for release. I thanked him and asked his clerk to fax me the bond order, so that RAICES, a Texas-based organization committed to the rights of immigrants and refugees, could post the bond on his behalf as soon as possible. Martín was eligible for release on Wednesday, July 1. Because RAICES needed the bond order to post the bond, and because neither Martín nor his family had $10,000 in cash lying around, he was forced to wait.  I did not receive the bond order until Monday, July 6, five days after the judge set bond.

RAICES informed us that it was willing and able to post the bond on Martín’s behalf later that week—a record time, since its website mentioned that it could take six to eight weeks. On Friday, July 10, Martín was released from detention after spending nearly four and a half months in a disorienting and precarious situation, separated from his wife in a strange land that he is hoping will become his new home. As I was writing this, Martín called me to tell me he safely made it to his wife and family in California. This was a small victory, but it’s important to keep in perspective that Martín is only one person, and there are thousands more that have been or will be locked up for much longer than he had been—many of them their only violation being a desire to live in a place where they can move freely and earn a living wage without fear of losing their livelihoods or their lives.

The general process by which immigration judges grant bond constitutes but a fractional slice of the larger federal immigration machine, a machine by its design unforgiving and labyrinthine, even before implementation of the more draconian enforcement policies of the current administration. To effect real change and defang this beast will require massive and unrelenting efforts of everyone from the brave human beings trapped in its jaws to grassroots leaders, special interest groups, lawyers, lawmakers, and everyday American voters themselves. It will require a harsh reckoning with the principles upon which our country was founded, the state of our union today, and the country we want to leave for posterity.

It can start with a small effort that includes fervent advocacy on behalf of one person who finds himself locked in a detention center in an unfamiliar country in the year 2020 during a global pandemic.

 

Alex Schnapp

Associate, Akin Gump Strauss Hauer & Feld LLP