Yolanda Cordillo* was asleep when Immigrations and Customs Enforcement (ICE) officials entered her apartment and apprehended her one early spring morning in 2015. She still recalls how her two children, ages three and five, clung to her legs while begging the officers to release their mother. But Cordillo, a native of Ecuador, had missed a court date, which triggered her six-month detention at Rikers Island. She was accused of two crimes: taking $5,000 from a woman with the false promise of providing her with citizenship papers and accepting money from two people after telling them she would give them a portion of alleged lottery winnings. Previously, Cordillo had been arrested on three different counts of Driving Under the Influence (DUI). Since Cordillo is an undocumented immigrant, missing a court date made her appear on ICE’s radar. By the end of 2015, Cordillo’s family raised enough money to pay her bond and she pleaded guilty to the crimes of which she was accused in order to end her legal troubles. But she nor her family were aware the nightmare was just beginning. Because of their low-income economic status, Cordillo’s family could not afford legal representation for her, leaving her no choice but to defend herself for the time being.
“It was an absolute nightmare,” Cordillo said. “I was so scared and unsure when I would see my family again.”
While public attention has focused on the sympathetic stories of the DREAMers who were brought to the United States as minors and obtain permits to work and attend school, in fact, much of the action happens behind the scenes with the unsympathetic figures of immigrants with criminal records. After President Donald Trump won the 2016 presidential election, his widespread inflammatory rhetoric toward immigrants reached a larger platform. Trump took office January 2017 17 and on Sept. 9, three weeks before the end of the 2017 fiscal year, ICE reported a 43 percent increase in arrests of undocumented immigrants versus the same period in 2016. The increase in arrests happened gradually, but picked up during Trump’s first 100 days in office, with ICE reports stating deportation officers arrested 38 percent more people compared to the same period in 2016.
According to a study published in the Cardozo Law Review, only three percent of detained immigrants who appear in court without legal representation avoid deportation. Undocumented immigrants that represent themselves in asylum cases receive mostly negative rulings. Public defenders are often reluctant to represent undocumented immigrants with criminal records, seeing them as hopeless causes not likely to win in court. With rising arrest rates separating parents from their children, this might happen to you, or someone in your family because of your immigration status. In the most desperate circumstances, there are options with advocacy groups filling the cracks left by refusal of other legal entities to take on such difficult and unpopular cases. Many of these organizations exist with the purpose of taking on clients other entities would not represent or help.
On January 25 2017, Trump issued Executive Order 13, 768, Enhancing Public Safety in the Interior of the United States (EO), which set forth his administration’s immigration enforcement and removal policies. This expanded policies already in place and allowed ICE to enforce by arresting and removing more undocumented immigrants. With this development, the Department of Homeland Security decided classes or categories of removable “aliens” are no longer exempt from potential enforcement. Because of upheavals such as these, people like Cordillo were unsure how their immigration status would be affected during Trump’s presidency. In March 2017, New York Governor Andrew Cuomo announced the Liberty Defense Project, making New York the first state to assist immigrants in obtaining legal counsel regardless of status. This saved Cordillo and the Brooklyn Defender Services (BDS) took up her case. With the Liberty Defense Project, York State dedicated $10 million of its budget to immigrant legal services.
“The public defender I had before BDS encouraged me to plead guilty to a lot of things I had not done,” Cordillo said. “BDS took care of me and treated me like a priority.”
Several programs in New York City, including immigrant rights clinics that provide legal counsel at New York University and Benjamin N. Cardozo School of Law; legal entities that provide counsel to those who cannot afford it, such as Brooklyn Defender Services; and immigrant advocacy groups like the New Sanctuary Coalition exist to provide undocumented people with support. These organizations reached increased importance when xenophobia became more rampant during and after the 2016 election. At the present time period, advocates for immigrants are instrumental in aiding them with their legal proceedings, whether these advocates be legal representatives, volunteers, or activists.
In September 2017, the Immigrant Rights Clinic (IRC) at New York University’s School of Law took on Cordillo’s case based on a referral from BDS. The clinic spent months building an asylum argument based on grounds of persecution. Cordillo immigrated to the United States in 1994 after she was the victim of a violent crime in Ecuador because she is a lesbian. Two second-year-law students, Maya Sikand and Jane Wang Williams, worked to prove Cordillo could not return to her home country because of the danger and potential violence she would face there due to her sexual orientation. Sikand and Williams held weekly meetings with their client to hear her story and decide which aspects of it to use when compiling their asylum brief. Clinics such as the IRC obtain their clients through referrals from a number of legal services and partner organizations throughout New York City. Oftentimes, the law school clinic model accepts cases that other providers will not take. Some public defender offices that accept similarly difficult cases operate through the New York Immigrant Family Unity Project, a program that provides free legal representation to every low-income immigrant facing deportation in the City of New York as well as to detained New Yorkers facing deportation in New Jersey immigration courts.
“The critique of the clinic model is that students are using it as ‘practice,’ but Jane and I were able to spend more time on this case,” Sikand said. “No practicing lawyer would build a relationship with our client the way we did because they would never have the time.”
During meetings with Cordillo, Sikand and Williams would conduct mock interrogations in which they would ask her fast-paced questions about her criminal history. They told her it was best to be honest regarding her criminal history. Oftentimes, Cordillo would end up in tears remembering the circumstances around her DUIs and larceny charges. She always maintained that she was framed for the larceny charges. However, the retelling of her criminal history and mock interrogations were an important part of the process, Williams said, because the government attorney would focus on Cordillo’s criminal history as the main reason for deportation. At the last meeting before the court hearing, Williams and Sikand brought in an outside lawyer to help conduct mock interrogations in order to ensure Cordillo could reply honestly and succinctly to any questions regarding her criminal history. Williams also echoed Sikand’s statements about the experience, explaining that she felt on a basic level, they spearheaded the case from start to finish with supervision from professors who wanted them to succeed.
“Untrained law students are definitely better than nothing,” Sikand added.
What Sikand said is corroborated by the data regarding immigration judges’ rulings in deportation proceedings, specifically when the defendants are seeking asylum. Denial rates among judges are impacted by the asylum seeker’s nationality and whether or not they are represented by attorneys. Nationwide, around 20.2 percent of asylum seekers appear in court unrepresented. The judges’ personal perspectives also impact the asylum decision. Almost all asylum seekers not represented by an attorney (91 percent) are denied asylum.
The following statistics regarding the asylum decisions of Judge Margaret Kolbe, an immigration judge in New York Immigration Court assigned to Cordillo’s case, are from the fiscal years 2012-2017. During this time period, Judge Kolbe decided on 266 asylum claims, granting 210 and denying 56. Simultaneously, court judges nationwide denied 52.8 percent of asylum claims compared to Judge Colbe’s denial rate of 21.1 percent. Denial rates among judges are impacted by the asylum seeker’s nationality and whether or not they are represented by attorneys. Nationwide, around 20.2 percent of asylum seekers appear in court unrepresented. The judges’ personal perspectives also impact the asylum decision. Because the nationality of defendants often plays into the decision making process, legal entities often prepare their undocumented clients by focusing on issues at the intersection. Request for comment from Judge Kolbe was not returned.
“It’s about immigration, but it’s often about the intersection of immigration and the criminal legal system,” Jessica Rofé, an Immigrant Defense Fellow at NYU’s IRC said. “I think our clinic is important because we work at the intersection of race, class, gender, and immigration. The clinic emphasizes how intersectional issues affect people.”
Rofé also cited disparities within the criminal legal system, saying that racial and economic disparity and practices such as stop-and-frisk, the detaining, questioning, and sometimes searching of individuals on the street for contraband items, affect black and brown people the most. Because of all these contradictions in the system, immigration advocates are necessary in many ways, shapes, and forms. The public defender assigned to Cordillo before Brooklyn Defender Services and later the IRC took her case encouraged her to plead guilty to the crimes she claimed innocence to due to her previous criminal record.
“I think that there’s a need for immigrant rights advocates just generally, and I don’t know that those have to be lawyers,” Rofé said. She added that working with lawyers is helpful in some ways, harmful in other ways, but nevertheless an important part of the movement.
Another New York City law school that participates in the clinic model is Benjamin N. Cardozo School of Law. The Kathryn O. Greenberg Immigration Justice Clinic allows Cardozo law students to represent immigrants facing deportation before federal immigration authorities and in the U.S. Court of Appeals for the Second Circuit. Requests for comment from Peter Markowitz, the clinic’s director, were not returned. Nyasa Hickey, a 2011 graduate of Cardozo, participated in the Immigration Justice Clinic and now works as an attorney at Brooklyn Defender Services. During her time at Cardozo, she represented a man who was taken advantage of my immigration attorneys, which caused a simple application process to be an unresolved case for almost 20 years. Hickey emphasized that it is difficult for immigrants in general—regardless of their immigration status—to obtain legal counsel because their cases are often more complex. She said there is often a stigma against immigrants with criminal histories. Now at BDS, she aids in the representation of non-citizen criminal defense clients to help avoid or minimize the negative immigration consequences of arrest and potential conviction. She also helps clients procure and green card status. Her time participating in the Immigration Justice Clinic at Cardozo prepared her for her current job at BDS.
“Law school clinics are often on the cutting edge of law development because of institutional knowledge and having professors and an army of students to carry out that mission,” she said. “I think in the criminal-immigration field, you see a lot of law clinics at the forefront because clinics are able to explore law with more resources than high volume service providers.”
Cordillo and other undocumented immigrants could have been helped by immigration advocacy groups such as the New Sanctuary Coalition (NSC), an interfaith network of organizations that stand in solidarity with families and communities that are resisting detention of undocumented immigrants. There are several programs to represent and benefit undocumented immigrants, one of them being the LIFE Bond Fund. The LIFE Bond Fund was created in 2017 as a way to bond out detained people so they can fight their cases from the outside, rather than in detention. Once bond is set, the NSC sends the funds to a faith leader who submits a cashier’s check in person along with necessary documents to 26 Federal Plaza, the New York Field office for U.S. Citizenship and Immigration Services. According to the NSC’s website, the Justice Department released a recent study that stated of all detained immigrants released on bond, more than 68 percent were ruled not to be deportable.
Kyle Barron, a former staff member at the NSC, helped create the Accompaniment Program, which matches NSC volunteers with people who have to go through immigration court hearings or ICE check-ins. Since Barron now attends NYU School of Law, she is no longer a staff member at the NSC, but she still volunteers for the organization. She works with the asylum clinic and recently started an initiative to help people with habeas corpus filings who are trying to challenge detention. This section of the NSC helps people who feel they may have been unlawfully detained because a lot of them do not have access to legal counsel. According to Barron, prior to the election, the organization had 10 to 20 people a week come in for assistance with their asylum applications.
“A lot of people are turned away from other organizations for being ‘hopeless cases,’ so we take them,” she said. “One thing about immigration is that most people think a lot of it is a legal solution, but much of it is in the advocacy as well.”
Hector Muralla, a former ICE agent trainee, spoke about ICE practices he learned during his short stint as an agent. He worked at an ICE detention center in York, Pennsylvania from October 2015 to January 2016. Muralla, a member of the United States Armed Forces for over 20 years, applied to be an ICE agent in early 2014. After a yearlong wait during which ICE completed a background check on him, he was selected for an interview and a fitness test. In June 2015, he was assigned to a three-month long field camp. Upon completion of field camp, he was placed at a detention center to oversee the transportation of undocumented immigrants before they were deported from Harrisburg International Airport.
“It affected me because not everybody who was being deported had a criminal background,” he said. “Basically everybody gets sent back. There were a lot of women who were mothers and that was hard to see.”
According to Muralla, approximately 50 percent of the detainees in the detention center could afford legal representation for their cases. Since Pennsylvania is not a state that assists immigrants with obtaining legal counsel regardless of status, the other detainees in the center were left to represent themselves in their legal proceedings. Many of the people Muralla helped transport to the Harrisburg airport lamented their inability to afford legal representation while on the way there. Although Muralla emphasized the humane conditions at the ICE detention center where he worked those three months, he ultimately left the position because it was difficult for him, as an immigrant to the United States himself, to watch fellow immigrants be deported.
“I didn’t feel comfortable with certain aspects of the job. Anybody who is getting of work and going home to their families are going to get caught and that’s hard,” he said. “The government should find a way to let people who are here to have a better life, who are paying taxes, who are working, become citizens.”
When asked if Cordillo should have been deported, Muralla answered yes, reasoning that her extensive criminal record classified her as a risk to society. Regardless of this opinion, he stated that the ICE agents who entered her home to detain her crossed a line when they borderline mistreated her children. While training to become an ICE agent, specific instructions are given not to harm the person being detained or anyone with them unless there is a clear threat. He also said that at the time of Cordillo’s detention, ICE was operating on a tier classification system. Tier One was reserved for the high-risk criminals, comprising murderers, drug dealers, and people generally considered to be a danger to society. Tier Two consisted of those who, among other things, committed felonies. Since Cordillo’s two larceny charges were considered a felony in the state of New York, Muralla said based on ICE’s tier classification system, she should have been deported.
“They told me, ‘You need to look away. You can’t let your feelings get the best of you because you’re enforcing the law.’ I understood I was enforcing the law,” he added. “But my father was deported once back in the 1970s. I thought I’d be able to do the job, but I couldn’t.”
In the end, there was no hearing for Cordillo. Williams and Sikand reached an agreement with the government attorney after presenting her with their 700-page briefing which included depositions from Cordillo’s family members, letters of support from her coworkers and loved ones, and statistics about how LGBTQ+ people are treated in Ecuador. The government attorney offered Cordillo and her legal team the option of withholding of removal which she accepted in court before the judge. Withholding of removal is a type of order an immigration judge issues to a person who demonstrates more than a 50 percent chance they will be subject to persecution in their home country because of their race, religion, nationality, membership of a social group, or political opinion.
Cordillo’s criminal history muddied her legal representatives’ attempts to put together an asylum plea for her because of the Trump administration’s expansion of reasons undocumented immigrants could be detained and/or deported. Her case was in limbo since 2015 because of upheavals in immigration policy, but finally, she has the peace of mind to know she will not be separated from her family.
“This country has been so good to me,” she said. “I never stopped trusting the process.”
*names have been changed to protect identities