LA Weekly

Photos by Virginia Lee Hunter

After five months of sweeping floors and breathing the stale air inside El Centro Immigration Services Processing Center, Gilmer Leyva enters the interview booth with the bearing of a desperate man. Wearing a blue T-shirt that identifies him as a low-risk inmate, with his identification badge clipped to his broad shoulders and a stack of papers in his hand, he has a vacant look in his eye and stares at the ground when he speaks.

Gilmer Leyva is a taxi driver from Lima, Peru, who is fighting to prove his identity before U.S. officials deport him for good. In 1997, he was living in New Jersey along with his mother, three of four sisters and two children — all of them legal residents or citizens — when U.S. officials noticed an inconsistency on his birth certificate. His mother, Maria Rosa Aspillaga de Leyva, had become a legal resident in 1990 and had sought approval for her children to become residents under what is known as the immigrant relative provision. The government had approved the petition for Gilmer Leyva to receive his visa in 1991 and he had been waiting for six years while each of his four sisters requested and received theirs.

The glitch was that Maria Rosa Aspillaga de Leyva appears on her son’s birth certificate as Rosa Martha Aspillaga. In the mid-1990s authorities began to question if she was really Leyva’s mother. Aspillaga’s husband died in 1958 and she had used various names throughout her adult life, including Rosa Aspillaga Quijano — Quijano being her mother’s maiden name — and Maria Rosa Aspillaga Quijano, in addition to Rosa Martha Aspillaga. She also has a twin sister, Maria Felicitas Aspillaga, and all of this confusion led to Leyva being deported in 1997.

Gilmer Leyva’s sister (left) also says Gilmer Leyva is Gilmer Leyva. The government still can't decide.

Leyva returned to Peru while U.S. officials put him on a watch list and investigated him for fraud. He was caught trying to return to the United States in February and remains in federal custody.

Now, Leyva, who is 48 and who has silver caps on his two front teeth and coarse black hair flecked with gray, finds himself in more trouble than he needs to be with no one but Katherine Owen, his overextended attorney, to help him prove what he needs to prove. He has been detained at the El Centro detention facility for five months, where he works cleaning the barracks and is permitted one hour a day to read in the library. By now, he has been separated from his family for five years. He has tried to get the government to reopen his case, with little success thus far. If the government wants to prosecute him for entering the country illegally then so be it, says Owen. If they really believe he has attempted a fraud, she says, then charge him with something.

While official procedure seems to leave it up to Leyva to convince the government that he is his mother’s son, the system appears content to let him go about that task from behind a Plexiglas divider which both separates Leyva from and connects him to the outside world.

An official with Homeland Security says that delays in processing Leyva’s case are related to the Justice Department’s crowded trial court docket. Elaine Komis, a spokesperson from the Executive Office of Immigration Review — the Justice Department’s immigration trial court — says detainees like Leyva are given priority and a notice to appear in court, but that it takes time for them to get their paperwork in order for a hearing before a judge.

Leyva maintains the U.S. government has rejected all the civil documents he has provided them, such as his mother’s electoral card, to show that she is the same woman on his birth certificate and his visa application. And the decision to keep him in custody pending his hearing rests with the same immigration enforcement officials who have been rejecting his pleas. Due to strict homeland security requirements, those officials will not comment on his case and offer no insight into their investigation of Leyva’s lineage — beyond reviewing and rejecting his documentary evidence. The L.A. Weekly did obtain State Department documents in which the INS claims to have first ordered Leyva be removed in 1987, 10 years before he actually left.

Leyva says his mother died in 2002 and he is facing an uphill battle convincing both the people who have detained him and the immigration trial judge that he is really her son. Officials seem convinced that Maria Rosa Aspillaga is really his aunt, says Owen, touching her finger to the glass that separates her from her client. Complicating matters is the fact that both Maria Rosa and her twin sister Maria Felicitas have died in the past few years. Even so, Leyva says none of this has been a problem for other members of his family.

“I have two children that are U.S. citizens,” Leyva says through a fellow inmate who acts as an interpreter. “They live in New Jersey. I have three sisters there too, and one in Alaska. Two of them are citizens. The other two are legal residents. No one questioned their birth certificates.”

Leyva’s story is one of hundreds at this facility. Since almost all have Mexican or Latin American roots, it would be quite a feat to make a geographical or psychic connection between these detainees and the 9/11 terrorists and their sympathizers. Yet while Leyva has no criminal record and his legal situation is not directly related to post-9/11 policies, his prolonged detention is an example of how the