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Guest Post from Nicholas Starkman ’13: A Complicated Deportation Case

Posted By Kevin R. Johnson, Jan 24, 2012

The Sacramento Bee recently featured a heartbreaking story about a Sacramento-area grandfather, suffering from end-stage kidney failure, who faced deportation to Mexico.  The article quoted Immigration Law Clinic student Nicholas Starkman ’13, who contributes this entry to the Dean’s Blog:

Recently, while working at the Immigration Law Clinic, I advocated on behalf of a Mexican client all the way through his removal from the United States.  Under the tireless leadership of Professor Amagda Pérez, I received “M’s” case as a referral from the Mexican Consulate during summer of 2011.  When he came to us, M was in a dire state.  His body was ravaged internally from Chronic Kidney Disease; his kidneys had ceased functioning.  He suffered from heart failure, diabetes, pleural effusion (liquid build up in his lungs), and hypertension.  He is only 51, but is nearing the end of his life.
Ignacio dialysis
The client holds a photo of himself receiving a dialysis treatment.  Photo from The Sacramento Bee.

Like M’s health, his legal proceedings had been steadily marching toward an unfortunate end.  M had no more appeals in the immigration court system.  All that was left us to do was to appeal to the will of the administrative body responsible for his removal: Immigration and Customs Enforcement (“ICE”).  M presented us with one of the most difficult situations to be in as an immigration attorney: what to do with a client whose case represents a humanitarian crisis but who has a serious criminal record? On one hand, M has two drug-related convictions and had received a final order of removal (deportation) from ICE.  On the other, he is poor and has developed a terminal illness while living and working within our borders.  The life-sustaining hemodialysis treatment he received in the United States three times a week—for three hours or more hours at a time—was unavailable in Mexico due to a saturated public health system in his home state. Quite simply, M would die if removed, not to mention the cost in pain and trauma that removal tolls on families and loved ones.     

I quickly found myself in the middle of moral and ethical quandary.  How could I make a winning argument on behalf of M to ICE, when I was having my own reservations about my ability to “defend the indefensible”, a man with two convictions?  After all, hadn’t President Obama said—after the record number of deportations under his administration—that ICE would be focusing its efforts on people like M, people who committed drug-related and violent crimes?  Then I remembered the story of John Thompson, a man who spent 14 years on death row before he was exonerated.  At one event, he appealed to his audience, protesting the closed-mindedness of some defense attorneys: “you have to at least give the accused a chance to lie about their innocence."  He believed that the case was closed when a public defender reserved judgment before even meeting the client.  I took this approach with M.  Resolving to not engage in weighing right and wrong, I followed Professor Pérez’s lead and focused on the facts at hand: that a dying man with a family needed our help, not in the criminal justice system, but to the immigration system.  This was particularly difficult when I began to have regular meetings with M, during which the topic of his convictions would inevitably arise.  My heartstrings pulled me in another direction when M told me that he was tricked by unscrupulous acquaintances into handling the drugs. 

While to this day it is still unclear to me what happened regarding his convictions based on M’s testimony and his RAP sheet, an interesting thing occurred in my life while working on M’s case.  A friend of a friend, who I’ll call Carl, worked at a successful Silicon Valley startup tech firm.  The previous summer I attended San Francisco’s pride parade with both him and his girlfriend, so I knew them as acquaintances. Carl was at home with her one night.  They got into an argument and a physical fight ensued.  Carl’s girlfriend called the police on him to report a domestic violence incident.  When the police arrived to apprehend Carl for domestic violence, they found his stash of cocaine.  After spending just one night in jail, he hired an expensive attorney, and the charges were later dropped against him.  Watching all this unfold through conversations with my friend, Carl’s former roommate, I realized the depth of John Thompson’s admonishment to defense attorneys.  I understood that while the labels of “convict”, “accused” or “defendant” stick with people throughout their lives, these labels are not infallible.  Similarly, “innocent” may in some situations be just as deceptive.

In light of the Carl situation, I shelved my reservations and proceeded to attempt to exhaust every form of relief on behalf of M.  Shortly thereafter, I ran into a wall that is notorious in the world of immigration attorneys: prosecutorial discretion.  In recent years, directors of the legacy Immigration and Naturalization Service (INS), now known as ICE, have issued a series of memoranda describing prosecutorial discretion.  Technically, prosecutorial discretion is the “authority of an agency charged with enforcing a law to decide what degree to enforce the law against a particular individual”.  While in reality, any enforcement agency has this power; in the immigration context, prosecutorial discretion is a fickle beast.  In June of 2011, ICE director John Morton published a series of memos summarizing the prosecutorial discretion processes.  The problem lies in the fact that these memos were widely disseminated, highly politicized, and completely vague substantively.  With other immigration procedures there are tried and true areas of protocol: United States Citizenship and Immigration Service (USCIS) forms to submit, aspects of the case to highlight and touch upon, and a general format that is widely accessible.  In the realm of prosecutorial discretion, however, there is no such thing.  Literally thousands of advocates and pro se individuals are shooting in the dark, with no verifiable blueprint other than the penumbras of Morton’s memo.    

Nonetheless, after consulting with many immigrants’ rights and defense attorneys from the Bay Area, as well as the library of experience and expertise that is Professor Pérez, I requested prosecutorial discretion in the form of 1) deferred action and 2) staying a final order of removal.  This is a process by which an attorney cites to significant humanitarian factors counterbalancing the order to remove an immigrant.  Our requests were denied, even though a facility had not been located that could provide M with adequate care to sustain his life.  Working up to the moment of his removal, we even explored remedies such as filing a Change.org petition, newspaper publicity and appealing to the very humanity of ICE executives.  Though this process left me ragged and emotionally raw, I glimpsed what it really takes to be a tireless advocate. It means refusing to cede defeat even when the path is not clear, and, unlike so many other areas of the law, where the outcome of your case is not in the hands of an impartial magistrate.  From M’s case, I learned that when you appeal to the person or people with all the power in a situation, with all the cards in their favor, there can be no sportsmanship, no shaking of hands and walking away.  There is no discernible end to a case such as M’s, because right now he is in Mexico, in a hospice center, hopefully receiving the treatment he needs.