by Ana M. Fores Tamayo

Ternura, by Oswaldo Guayasamin © 1989

From [*Adjunct Justice*](

I went to an Immigration Merits Hearing at the Dallas Courts recently — the last hearing before an individual or family is deported or given asylum — and this young mother and child from Guerrero, Mexico lost, as asylum seekers in the majority of these cases do. Although the judge admitted that the young woman “might be in danger,” he said he could do nothing about the consequences such criminal activity effects on these poor folk in the countries from which they are escaping. The actions perpetrated in such countries were individual criminal proceedings, not governmental undertakings, and thus the people who suffered individually were not privy to meriting asylum under our government statutes, according to the judge’s ruling.

How can these learned men say such a thing?

As a majority, do these judges have blinders on? Do they not see the massacres committed by the cartels of Mexico, or the maras throughout Central America (that we deported!), gangs that have taken over entire populations, becoming a de facto, criminal and parallel local government, so that people in these countries cannot live in peace?

These refugees are fleeing for their lives; they are not economic refugees, as the immigration courts so often want to make everyone believe, or as many judges delude themselves into thinking.

Instead, judges deceive everyone — including themselves — by stating young mothers’ stories as filled with discrepancies, their credulity doubtful, and their exaggerations tantamount: how can these “liars” and “illegal aliens” live in our midst, they proclaim?

A few weeks ago I went to listen to an anthropologist from El Salvador — Juan José Martínez D’Aubuisson — at the Wild Detectives Café/Bookstore, a literary & artistic venue in Dallas. He spoke about the development and rise of the Mara Salvatrucha; he lived with them for a year, so he is the perfect expert witness. I wondered if he could ever make these judges realize how they hurt the people they are deporting: they could be repeating the same history of the 1980s, except the people they are now exiling are not gangs: they are families, mostly women and children, and deportation for them often times means a death sentence, or a radical worsening of their life conditions. If these judges had only come to listen to this young anthropologist, they would have realized how his testimony disqualified and refuted the sweeping statements they summarily make every day, without realizing the ramifications they perpetrate on entire families sent back to their almost certain deaths.

When I listened to the judge speak to this young mother a few weeks ago, his condescension and disdain were oozing. He did not look at her but glared his beady steel blue gaze around the courtroom to see who was present. I thought that in Pro Se cases — where there are no lawyers representing the respondent — it is the judge’s duty to be fair and to listen to the respondent’s side, at least asking questions to make it seem as equitable as possible, so that “Judges are charged with ascertaining the truth, not just playing referee… A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits.” (Gamet v. Blanchard)

YET in this judge’s case consistently — and I have seen this particular judge several times already — I have noted that he has taken over the US Government DHS ICE attorney’s job (Department of Homeland Security Immigration & Customs Enforcement): the fiscal does not have to ask any questions because this overseer does not judge impartially but revels in destroying the respondent, picking her statements apart instead of raising questions to help her get at the truth, as a judge should do in a *Pro Se *case; he left the ICE attorney without any work to complete.

Such was the case that when this particular ICE attorney came out and saw the young woman crying inconsolably, he told her not to despair or give up, to appeal and keep on fighting.

Rosa Zárate, Decapitated Flower 
by Oswaldo Guayasamin © 1987

I suppose many judges act in this same manner, but is this really fair? I did see a new judge once — oddly enough (or maybe not so!), *not *from Texas, but thankfully newly assigned to the Dallas Immigration Court — who did not make an immediate ruling but took the case home with him, reread it and looked at all evidence again before making a careful decision, and who asked questions to help the respondent, despite her having a *pro bono *attorney (I think because he knew her attorney did not normally deal with immigration).

About a month later, this young mother received asylum.

But no, the present judge had already made up his mind, even before hearing the case. He, and judges like him, have the summary judgment cases favoring their decisions already in place to validate their predetermined verdicts.

All this particular judge needed now was to get answers from the respondent to help him lend force to the decision he had pre-made, so he picked and chose what he wanted from the young mother’s testimony, and he ignored the rest of the evidence. Therefore, he tried to trip up the scared young woman in details such as her myriad cell phone numbers (she switched phones everytime these assailants threatened her, so she had been through several phones), the dates she stated on her asylum application (which were off due to volunteer error, much like his own court interpreter error, but because the interpreter error now favored the respondent, he did not mention it in his ruling). Further, he asked the respondent irrelevant questions, which were off-base and immoral, I thought, such as why did she bring a child into the world in 2010 when she knew it was dangerous? The child, now 6, was listening to every word his mother said.

Tell me, judge, why are you sending her back, if you know it is dangerous?

When the police in Guerrero, Mexico told this young woman to leave their station, not to report her missing brother or something worse could happen, she realized she could not count on the police’s help to go after the cartels. Luckily, her brother was returned, beaten up but alive. But when she began to get harrassed later that year because she saw a woman abducted and then murdered, when she began to get subsequent death threats, when she began to hear that they were going to take her small son unless she complied to whatever they wanted from her, when they began accosting her sexually — so that she had to leave her job — she knew she could not go to the police: she had learned from that first time.

Yet this judge did not understand that they spoke of two different worlds.

This young mother understood the Mexican police for how they “are ruled” in Mexico’s streets or how these same police are complicit through their silence: “report a crime, I will be killed by the cartels, and the police will do nothing to protect me, so I should not report any crime, lest I call attention to myself.”

But this judge told her that police here in the US similarly tell citizens not to go near kidnappers. What he was comparing, however, was apples to oranges.

When police in the US tell citizens not to “look for kidnappers or criminals,” it is because they are telling people they will do the job themselves and will find these criminals.

In Mexico, that is not the case.

When Mexican police tell people not to go near the cases, it is because they do not want to deal with the consequences of another murder to tidy up…

Meeting at the Pentagon, by Oswaldo Guayasamin © 1970

As a *Pro Se *asylum respondent, this young woman, all of 25 if a day, fought admirably for her freedom. When she pointed out an article she had delivered as evidence, which showed the corruption of the Mexican police and the lack of protection from them — since she is no lawyer, and the interpreter was not at her best that day — the judge completely ignored this section of her testimony. Though the distraught mother mentioned this article several times, in addition to her own story, the judge chose to disregard it. He also made it a point to say that her translations were “uncertified” and unknown, although she used standard procedure for all her translation documents, as required by the courts. Never before has the court system needed to officially notarize a translation of a document, or require it to be done by a certified interpreter/translator.

Moreover, this young woman had the wherewithal to bring in her sister to testify. Although she had no lawyer to guide her, she followed correct protocol again. It was a short testimonial, but the sister corroborated what had happened, although she had sat outside the entire time while the young mother was giving her evidence. It is important to note how — with the sister’s testimony — the judge already had his ready made case and was fitting his decision to it, shaping what he wanted to use. When he made his ruling, not only did he ignore crucial testimony and evidence, but he completely twisted the sister’s testimony to fit his own agenda, and put words into her mouth, as what she said and what he interpreted were two different realities.

El Grito I, II, and III, by Oswaldo Guayasamin

These judges are used to having the court to themselves: the respondent who speaks no English, the opposing lawyer and sometimes, an attorney defending the rights of the refugees — though most cannot afford them — and the judge king.

But here I was sitting, making observations. And I have done this same thing before.

The judge did not like the fact that I was “judging” his reign.

Still, this did not stop his reign of terror in the courts.

Though narco traffickers intimidate these foreign governments and the general population, and we might sympathize with the respondents, the judge began, this does not establish a nexus for most people seeking asylum. He continued: a generic fear of violence is not approval for sanctuary. The cartels, *maras, *or gangs are private actors, not part of a government that tortures people, even if they terrify. The police might even be victims themselves, but this does not equal their being complicit with the corruption in these cartels. Thus most refugees are victims of individuals, not the government, and therefore they cannot establish grounds for asylum.


This young woman went to ICE after she lost the hearing, and our government again shackled her, although they had previously taken off the GPS monitor. They told her that unless she presented papers from her upcoming appeal, she would remain shackled. They then proceeded to intimidate her and demand that she get the appeal to them immediately. Afterward, ICE relented and told her she had until the 8th of the following month, not even 10 days…

I told her she had 30 days by law before deportation proceedings could begin.

This is a beautiful young mother who has done no wrong. She escaped her country because the cartels wanted to kill her after she saw them murder yet another innocent, and they would have killed her too after torturing her, had she not escaped, like so many others and others and others…

Instead of finding understanding and help here in “our land of the free and the brave,” instead of finding sanctuary to welcome her, she finds bars and shackles to constrain her. And yes, she also finds that our government wants to send her back to a death trap.

Oh yes, we live in the land of opportunity, the land where we all came to live, once upon a time, as immigrants…

Ana M. Fores Tamayo
Adjunct Justice
Twitter: @anamfores

La capilla del hombre (The Chapel of Man)
Oswaldo Guayasamin


La capilla del hombre (The Chapel of Man)
Oswaldo Guayasamin, 06/07/1919 to 10/03/1999, was born in Quito, Ecuador. One of the most important artists of Latin America, his art has crossed borders, and his work denounced the inequality, suffering, and exploitation of the indigenous in Latin America. He had an abusive father, yet a loving mother, which colored all his work. He was also deeply influenced by his friend’s death during a demonstration in Quito, which inspired his vision of society and the world he lived in. Guayasamin was working on his masterpiece, La capilla del hombre (The Chapel of Man) upon his death, but it was completed in 2002, to document what he saw: not only humanity’s cruelty but also our potential for greatness. It is located by his home in the hills overlooking Quito.

I thought Guayasamin was the perfect visual representative of refugees today: the downtrodden who come asking for help at our Southern border, yet we turn them away.

There is another way…