Ghosts in the Machine

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.

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“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 government is overriding individual rights and due process in favor of a more efficient immigrant search-and-removal machine in the name of homeland security.

“The whole focus of the system has shifted from trying to enforce our borders efficiently to worrying about people who crash airplanes into buildings and using that as an excuse to keep immigrants out,” says Thomas Logan, an immigration specialist and veteran civil attorney. “Even people who are legal residents are suffering, but the government figures, hey, they don’t even vote.”

Katherine Owen is hoping to beat the morning rush of visitors as she steps into the center’s cramped lobby, where green-clad U.S. Border Patrol officers deposit their firearms in gun lockers and attorneys line up to see their clients.

A large metal sign on the wall informs detainees and their visitors that they “deserve to be treated with professionalism and respect.” Surly but effective due process would do just fine for the woeful inhabitants who have seen U.S. immigration laws turn from shield to sword and civil liberties evaporate like mist in the desert heat, which registers a mild 98 degrees at El Centro this morning.

A private security guard in a white jumpsuit greets Owen familiarly as the lawyer hands over a list of clients to be escorted to one of five phone booth–sized consultation rooms down a narrow corridor. Each room is divided by a thick Plexiglas panel and has carpeted walls and fluorescent overhead lights. Of the facility’s grim aura, Owen says, “I don’t think these are the downfalls. It’s the law that is hurting people.”

While the PATRIOT Act is what rankles most civil libertarians, the El Centro detention center is filled with legal and illegal aliens — about 400 of them, its director estimates — who have more basic problems. They have no money, no right to free legal services and many have been detained for lengthy periods with limited access to self-help materials such as computers and law books. And the reality is that they are up against stiff immigration laws that have been in place since way before 9/11. After 9/11, though, those laws have taken on new meaning.

For example, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), expanding the number of crimes that subject people to deportation. It also requires that noncitizens facing removal for criminal convictions as well as many non-criminal aliens be held without bond. What’s more, possession of any quantity of any drugs other than an ounce or less of marijuana became automatic grounds for deportation. Under post-9/11 guidelines handed down by the Department of Justice and upheld recently by the U.S. Supreme Court, judges have no authority to waive these requirements.

Without judicial discretion to grant conditional release, legal residents subjected to retroactive enforcement of IIRIRA are kept from their families for months while they face deportation proceedings for crimes they committed and paid for years ago. The government’s post-9/11 homeland security obsession coupled with a strict application of Attorney General John Ashcroft’s enforcement authority has overloaded an immigration system that was never the model of efficiency to begin with, folks in El Centro say.

“An awful lot of people need help down here,” says Logan. “Some are getting trampled and others are exaggerating their case, but these people do not have the full panoply of civil rights, and how to deal with whatever they have left remains to be seen.

“Judges, prosecutors and defenders are feeling their way through 50 years of guidelines that have been turned on their head.”

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Zealous enforcement of IIRIRA since the terrorist attacks of 2001 has increased the flow of bodies in the system. Inspection forces along the Mexican border have grown threefold, according to immigration officials, and newly hired deportation field officers are charged with tracking down visa violators and individuals who fail to comply with terms of their bond release. At the border, officials no longer grant waivers for immigrants lacking proper documentation except for dire medical or humanitarian reasons. Instead of sending them back, they take them into custody for processing.

El Centro is one of eight federal detention centers around the country into which the federal government is pumping tax dollars to make room for the increase in immigrant detentions that results from these efforts. The Department of Homeland Security plans to spend $1 billion in the next couple years to house detainees and establish a program called “U.S. Visit,” which will require biometric data — fingerprints, facial and iris scans — along with visa applications so that immigration officials will know instantly who entered illegally or overstayed, resulting in even more immediate detentions.

But warehousing immigrants isn’t the goal, according to the government. “Our job is to move people out,” explains one immigration enforcement official who claims he is “proud of our programs” while also requesting anonymity. “We’re not running a jail. We want people released or returned to their home country. That’s our measure of efficiency.”

Owen is a relative newcomer to El Centro and the immigration law business, but she knows efficiency when she sees it. And what used to be one semi-chaotic immigration system under one federal agency, the Department of Justice, is now split into two bulging federal agencies that are not so keen about talking to one another — or the public. In 2002, the behemoth Homeland Security swallowed the enforcement, detention and removal branches of the old INS, while administrative judges stayed behind in Justice to answer to Ashcroft. “[Homeland Security] has nothing to do with our process and we have nothing to do with theirs,” explains Immigration Review’s Komis.

But together these government agencies have a lot to do with the quandaries facing Owen’s clients: immigrant detainees who have drug convictions, domestic violence tendencies and glitches in their identification papers that can be difficult to iron out.

“I’m always worried when I come here,” Owen says. “The client is going to tell me a story, and I’m sensitive to their problems. I look at the law and I’m not sure I can help them. Even if I can, it takes a long time. There’s no way to speed it up. They don’t understand that. They say, ‘Why can’t you get me out? I have a family to feed.’”

Not all detainees here are as SYMPATHETIC as Gilmer Leyva. Heroin dealers, wife beaters and general schemers are all tossed in with hapless immigrants who have done little wrong except fail to understand and abide by the vagaries of U.S. immigration law. Yet many have experienced the same kind of diminished due process, which in some cases borders on inhumane treatment.

Jose Reyes, 33, is a Mexican national who has lived in the United States since he was four, attending public schools in Garden Grove until he dropped out during his second year at Santiago High School to help support his family. He is a construction worker and a legal resident with a 1995 drug conviction for possession and sale of heroin and cocaine. Reyes served two and a half years in county jail and was out on parole when he was convicted of misdemeanor spousal abuse in 2001, for which he served 17 days in county jail. In 2002, he says, he had a non-malignant brain tumor partially removed and was recovering from surgery when the judge in his domestic violence case told him to hold off completing his family counseling requirements until he recovered.

In February, Reyes was caught coming back into the country from Tijuana. Now, the government is using both the drug conviction and domestic violence conviction — which by forgoing counseling he failed to clear — to detain him without bond and line him up for deportation. He has a wife and seven kids, he says, and has paid his debt to society. “I was doing good,” he says.

Once in detention, Reyes started experiencing debilitating seizures several times a day that lasted up to 20 minutes each. He went without medication for three weeks and was forced to wait three months before undergoing an MRI to confirm that the tumor had not grown back. His doctor would prefer that he be permitted to rest at home pending the outcome of his deportation hearing. “It is very stressful here,” Reyes says. “There are fights all the time and I sleep on a metal bunk and have a brain tumor. If I have a seizure and fall down or get hit in the head I could injure my brain.”

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Guys like Reyes arrive at the detention center looking like lost chickens, according to Mario Avendano, who has been detained here more than a year. Some of them sign a form upon arrival that waives their right to a hearing and then get deported before they know what hit them, Avendano says.

Avendano found himself a lawyer who was willing to help, but the lawyer, Harold Goldstein, turned out to be a phony and has been indicted for fraud. Goldstein represented more than 60 detainees in this facility, many of whom have been deported already. Avendano says he has seen it all go down here. Because he speaks English and can type, he often helps other detainees who are trying to represent themselves. “They call me ‘Little Goldstein,’” he says with a sheepish grin. He also acted as interpreter for other detainees interviewed for this story.

Originally from Guatemala, Avendano, 36, was raised in Texas and moved to Los Angeles in the early 1980s. He became a permanent resident in 1990. He has a wife and four children who live in Los Angeles. Acting on retroactive Homeland Security guidelines, INS picked Avendano up after his two-year stint at Soledad for domestic violence. Now, he’s stuck at El Centro, having fallen into the chasm between immigration enforcement under Homeland Security and the immigration court under the Justice Department.

“[Homeland Security] doesn’t have authority to release him or remove him. He pled guilty to crimes that were not deportable offenses at the time but now are under the new guidelines. The court can’t remove him because he has proceedings under way. The immigration court and the appeals court keep pointing to each other to resolve his status,” says Thomas Logan, who is his attorney and who, in some indication of the weirdness around these parts, also represents Avendano’s indicted former counsel, Goldstein. “Mario could give up and leave voluntarily, but he’d be leaving his whole life behind.”

The bottom line around here, according to veteran immigration lawyers, is that the government is getting better all the time at sticking to the letter of the law and then some. To facilitate its mission, Homeland Security created two bureaus: the Bureau of Citizenship and Immigration Services, overseeing lawful immigrant and non-immigrant petitions, ‰ and the Bureau of Immigration and Customs Enforcement, which works with local and federal agencies to scrutinize visa issuance and border-crossing practices.

The citizenship bureau is no walk in the park, particularly for thousands of people who come to the United States to be with their families and then have to deal with the labyrinthine forms and processes that confound even English-speaking people with college educations. The unfortunate, the illegal and the ill-advised — most of whom come from Mexico and Latin American countries with no links to international terrorism — have an even bigger problem when forced to deal with the enforcement bureau, attorneys say. “Used to be that if a person came back 20 times they’d be deported 20 times,” says Dario Aguirre, a former INS agent who now represents federal detainees. “Now the government is looking to hammer people with permanent removal orders or federal criminal prosecution.”

Gilmer Leyva is banking on Katherine Owen’s ability to navigate this unyielding environment.

Granted just a half-hour to talk, Leyva and Owen hurry through their meeting as border patrol strolls by and occasionally peers into the interview booth. The air is warm and humid and Leyva does not like what he is hearing. His petition to become an immigrant relative may have died along with his mother, his attorney tells him. He can ask the judge in his case to re-evaluate his status but it may be out of the judge’s jurisdiction.

In any event the application will cost $2,000 — money he does not have.

“If the government would clean up this mess about his birth certificate then he would have been out of here by now,” Owen says.

During a recent telephone interview Leyva’s sister, Sonia Marlene Leyva Aspillaga, who lives in Anchorage, says that her mother simply made a mistake when she filled out Leyva’s birth certificate. “Maria Rosa” became “Rosa Martha,” as it is common to go by one’s second name, Sonia Aspillaga says. “She did a mistake,” Aspillaga says of her mother. “We use second names in our country. We call her Rosa every time.”

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Owen says she is in the process of putting together a compelling case to present to the immigration judge, on August 7. She is both critical of the system for what Leyva has been through and idealistic regarding the potential for a just outcome. “This is the United States,” she says. “This isn’t some Third World country. We’re supposed to do better than this.”

Experienced local lawyers interviewed for this story say it sounds as if Leyva is being set up for permanent deportation, without the government bothering to find out the truth about his status. But Owen is convinced he is telling the truth. She gets angry at the suggestion that a deeper investigation of her client’s past is needed. “Why, because he is Hispanic?” she says in a telephone interview several days later. “I get those kind of questions all day in court. He applied for a visa he deserved. His mother, his four sisters, his two children all became legal residents or citizens. What’s the real reason they made up this crap about his birth certificate? He has no criminal record. He just came back into the country before his time was up.”

Owen, whose grandmother was a Mexican immigrant, says she would have come back too, if she hadn’t seen her children in five years. The government, not Gilmer Leyva, broke the law, she says. “They broke the biggest law of all,” says Owen. “They denied him the right to be in this country and to be with his family.”

When asked how she plans to defend Leyva, she says maybe someone in Congress will help her pressure officials here to take a closer look at the facts. Sworn affidavits from his siblings should help, Owen says. “I’m going to put up a fight,” she says. “I’m going to give 100 percent.

“If we lose him this time, he’s gone for good.”

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