Your Fears Are Not Credible: A Mother and Child Trapped in Obama's Brutal Family Deportation System

By Ryan Devereaux and Helena Borges, The Intercept

14 December 16

 

A Mother and Child Trapped in Obama’s Brutal Family Deportation System

n the night of November 7, Jayne Alves Vilas Novas, a 19-year-old from Brazil, tucked her 2-year-old daughter in for bed at the Berks County Residential Center in Pennsylvania. Outside the walls of the redbrick building used to house undocumented immigrants, most of them women and children seeking asylum, the nation’s attention was consumed by the coming presidential election. Vilas Novas’s mind was elsewhere, though.

Vilas Novas was thinking about the tumultuous series of events that brought her to the U.S., about the man who turned her life into a waking nightmare, and about the deportation she and her daughter narrowly avoided weeks earlier. She was consumed with dread over the possibility that the American officials might try it again, pulling the two of them out of bed in the middle of the night then shipping them back home. Weeping, Vilas Novas walked into her bathroom, pulled out a razor from a pencil sharpener, and pressed it to her wrist.

Vilas Novas was frantic when she re-emerged. Her roommate was still awake and managed to talk her down. The cuts were superficial — Vilas Novas washed and bandaged them on her own — but the motivations that had driven her over the edge remained.

It had been nearly 10 weeks since Vilas Novas and her daughter showed up at the U.S. border, hoping for a safer life with family in New England. After U.S. officials determined her fears of persecution in Brazil were not credible, Vilas Novas and her daughter were shipped to Pennsylvania, where the young mother’s hopes began to dim.

The pair had been swept into a deportation machine that over the last few years has shuttled thousands of families back to the places they fear most. Vilas Novas had never been in prison before, she later said, and she couldn’t bring herself to adjust to her new reality. Her daughter began acting out, biting at the skin around her fingernails until she bled. Vilas Novas could sense the bond between them fraying under the stress.

When she met with the facility’s contracted psychologist the morning after the cutting, Vilas Novas was torn over how to explain what she was feeling, afraid the wrong words could provide a pretext for taking her daughter away. Struggling through a telephonic interpreter — none of the staff at Berks speaks Portuguese — Vilas Novas did what she could to convey a simple message: “I can’t bear it anymore.”

A week and a half later, Vilas Novas described her ordeal to The Intercept in her native language. Relatives corroborated much of her account in interviews from Brazil and Massachusetts, while the small team of overworked legal advocates fighting on her behalf provided dozens of pages of sworn declarations, legal briefs, and Brazilian police records offered to U.S. officials as proof of the trauma and threats Vilas Novas and her daughter face at home.

Together, the documents and conversations reflect the desperate measures Vilas Novas took to keep her daughter safe, highlighting the complex intersections of mental health and trauma coursing through the nation’s asylum bureaucracies, and offering a window into one of the darkest corners of the Obama administration’s immigration legacy — the formalization of practices allowing for the indefinite detention of mothers and children seeking safe haven, practices that will soon be overseen by a man on a mission to deport millions.

Vilas Novas and her daughter arrived at the Gateway International port of entry in Brownsville, Texas, on August 31 — the culmination of a journey that had taken the pair from rural Brazil to Rio de Janeiro, by plane to Mexico City, then finally by bus to the U.S. border. By the time Vilas Novas presented herself to Border Patrol agents in Brownsville, the loan her aunt had given her had been whittled down to $271.

Given an aluminum sheet to sleep with, Vilas Novas said she and her daughter spent their first two nights in the U.S. in a frigid, kennel-like room crowded with other immigrant families. “It seemed like they put the air conditioning on the coldest setting,” she recalled — Customs and Border Protection’s use of so-called iceboxes in immigrant detention centers has been documented before. “There was no bed for us to lie down on, just a thin cushion thrown on the ground — as if I were a dog.”

The following day, CBP officials questioned Vilas Novas and determined that she and her daughter were “inadmissible to the United States.” The two were issued expedited removal orders and the next day were transferred to the nation’s largest immigrant family detention center, the South Texas Family Residential Center in Dilley, Texas.

Run by the country’s largest private prison company, Corrections Corporation of America, now going by the name CoreCivic, the Dilley center was opened by the Department of Homeland Security in December 2014 as part of an Obama administration effort to deter a tide of migrants, many of them families and unaccompanied children, fleeing violence in Central America for the southern border of the U.S. Somewhere between a prison and a refugee camp, Dilley has a 2,400-bed capacity and, as of August 2016, housed more than 1,300 immigrant women and children.

Despite years of bad press, evidence of abuse, and accusations that it profits off the suffering of some of the world’s most vulnerable populations, Dilley nevertheless represented an opportunity for Vilas Novas to tell her story again, this time in hopes of securing an asylum hearing before a judge, something she had indicated that she was not seeking during her original CBP interview.

The first step in the process was a so-called credible fear interview. CFIs are a crucial initial screening phase in which noncitizens slated for an expedited removal can make the case that they have a legitimate fear of being deported back to their home country. If an asylum officer determines that the fear could indeed be credible, then the deportation process is effectively paused and the individual has a chance of making their full asylum case to a judge.

Vilas Novas’s interview lasted just over an hour and a half. Unlike in her CBP interview, she managed to convey at least some of what life was like for her in Brazil. She explained that she had fled the country because she was afraid of five men who had beaten her and her husband with rocks, resulting in serious injuries. “We filed a report and nothing happened,” Vilas Novas said. “We had to get a lawyer, but there is no Brazilian justice, and then [my] husband left me.” With her husband gone, and with little hope in the Brazilian justice system, Vilas Novas said she believed the physical danger she and her daughter were in had increased substantially. “This guy does everything he wants there,” she told the official, referring to the man who led the attack. “He fights. He threatens people. He also uses drugs. They never got him for anything.”

Vilas Novas was asked if she had any other fears of returning to Brazil, other than the man who led the assault on her and her partner. “No, that’s the only reason,” she said. “If I go back, that this guy would do something to me or my daughter.” She told the official that she didn’t describe these fears before because “I was afraid they would contact Brazilian people and the guy would know and he would do something to me and my daughter.”

The asylum official determined Vilas Novas’s fears were not credible. Later that day, the judge reviewing her interview agreed. Vilas Novas described the moment he rendered his decision. “I started to cry and he said: ‘I do not doubt that your story is true, but I agree with the official. And the response is no. You will be deported.’” With that, Vilas Novas and her daughter were advised that they would be transferred to a small family detention facility in Pennsylvania, where they would await deportation back to Brazil.

Vilas Novas’s experience in Texas was hardly unique, but the system hasn’t always been this harsh and unforgiving for mothers and children. When families and unaccompanied minors fleeing violence in Central America began showing up on the southwest border by the tens of thousands in the summer of 2014, the Obama administration responded by building an infrastructure for handling them that emphasized large-scale detention and rapid deportation.

The move was a significant departure from past practices. In years prior, families were rarely slated for expedited removal, nor were they subject to mandatory detention. In court, the government has defended its post-2014 practices — spearheaded by DHS and its immigration enforcement wing, ICE — on national security grounds, while journalists, human rights organizations, and attorneys have roundly criticized them as inhumane and an affront to due process.

ICE currently maintains three family detention centers that as of August held just over 2,000 women and children. In addition to the Dilley facility, Texas is also home to the Karnes County Residential Center, in Karnes City, operated by the GEO Group, a private prison company. The third and oldest family detention center — the only one that existed before the summer of 2014 — is the Berks facility in Leesport, Pennsylvania, where Vilas Novas and her daughter are currently being held.

Converted from a nursing home in March 2001, the county-owned Berks facility is the smallest of the government’s family detention centers, with a 96-bed capacity, and has been the subject of intense criticism. In an August 2015 report, Human Rights First documented impacts on the health and well-being of children housed at the facility — including “depression, anxiety, and increased aggression” — and “obstacles to release such as unaffordable bonds, delays in interview processes, and/or lack of counsel.”

Berks garnered national attention earlier this year when 22 women held there announced they were going on hunger strike. The impetus for the strike were comments from DHS chief Jeh Johnson, who said the average stay in family detention was 20 days — the hunger strikers included mothers with children at the facility who had been held for nearly a year, many of them asylum seekers who said their credible fear interviews had been conducted improperly.

Carol Anne Donohoe, a Pennsylvania immigration attorney and former president of the Greater Reading Immigration Project, was one of the lawyers for the so-called Berks Mothers. Over the last two years, Donohoe and her colleagues Jacquelyn Kline and Bridget Cambria have had an up-close experience of the dramatic changes at Berks and in family detention nationally. Donohoe recalls first visiting Berks as part of a bar association tour in April 2014.

“I had never been in that particular facility,” she said. “I never had to go over to Berks because people were held there for just a very brief span of time while they either finished their paperwork or got a sponsor.” Donohoe recalls about 17 people being held at the center during her initial visit. A little over a year later, multiple detention centers had opened up across the country and the numbers of women and children held in them, often after presenting themselves to immigration authorities in hopes of gaining asylum, were swelling into the thousands — during one recent seventh-month stretch, the number of individuals who passed through the nation’s family detention centers was well over 18,000.

For Donohoe and her team, the influx has been staggering. “For the first year and a half, two years, we were the only ones who really represented anyone at Berks,” she said. What’s more, she said, “There have been constant policy shifts since the summer of 2014.” Each shift, including some stemming from major court decisions rejecting core elements of the government’s family detention practices, has impacted legal work at Berks in its own way.

“For the first year, the reason for the prolonged detention was supposedly deterrence, trying to keep these families — send a message to other families: Don’t come because if you do, you’re going to be deported, you’re not going to win your case,” Donohoe explained. “So that was what we dealt with.”

The next summer, a federal judge in the Central District of California determined that the Obama administration’s family detention practices violated a longstanding court settlement, part of a case known as Flores v. Meese, by ruling that protections long guaranteed to unaccompanied minors also apply to immigrant children accompanied by their parents. As part of the ruling, the government was ordered to release those families held in unlicensed and “secure facilities” — such as the private detention centers in Texas — as quickly as possible.

In late October 2015, new transfers who could no longer be held in the Texas facilities as a result of the decision started showing up at Berks. Donohoe and her colleagues noticed patterns among the new arrivals. “Up until a year ago, we got people right from the border,” she said. “We didn’t get all these people who were being transferred from Texas.” In the past, the Newark Asylum Office would typically conduct incoming asylum seekers’ initial CFI, Donohoe explained.

“The Newark Asylum Office is good,” she said. “They know how to question someone. They know how to actually elicit the responses that might go towards a claim. Not all of them, but for the most part, they try.”

Donohoe pointed out that when an asylum official gives a CFI the green light, it’s not the same as granting the individual asylum — it’s a “threshold determination,” she said, meaning a determination that an individual could have a viable asylum claim and should get the opportunity to appear before a judge. Under the law, an asylum claim can be based on person’s persecution — or well-founded fear of persecution — as a result of their race, religion, nationality, membership in a particular social group, or political opinion, or their well-founded fears of being tortured if returned home. In the past, Donohoe said, people almost always passed their CFI.

“Until we started getting these transfers, we didn’t have problems with people passing CFIs,” she said. “We didn’t have to do these requests for re-interviews. I think there were maybe one or two where I ever had to say, ‘Hey, can you look at this again?’”

With the shift in policy, and with the Obama administration’s ongoing emphasis on detention and deportation, the situation for the legal advocates at Berks has changed dramatically over the last year, Donohoe explained,

“The process has become so prohibitive,” she said. “I look at the CFIs out of Houston and they’re terrible. It’s not geared towards what it’s supposed to be — being a safety net to make sure people aren’t deported who might have a claim.”

For the legal team at Berks, the shift in how asylum cases are processed has meant devoting more time to seeking new credible fear interviews for those passing through the facility.

Last summer, Donohoe and her colleagues hired two legal advocates to help them with their tremendous workload, including Karen Hoffmann, a former journalist who had reported from Brazil and spoke Portuguese. When Vilas Novas arrived at Berks on September 19, Donohoe quickly took her case while Hoffmann began having conversations with the young mother about her life in Brazil.

Immigration lawyers in Texas who collaborate with the attorneys in Pennsylvania had already put in a request for Vilas Novas to be re-interviewed. The legal team at Berks picked up where they left off, obtaining a Brazilian police report and medical records that confirmed the violent incident Vilas Novas had described in her initial CBP interview — though it occurred months earlier than Vilas Novas originally recalled.

Photos from the medical records showed Vilas Novas with a wide cut over the bridge of her nose and her partner with a crooked gash stretching up from his forehead to well behind his hairline. The police report, meanwhile, confirmed the couple’s attackers were arrested and released on the same day and added that the men threatened the military police unit that responded to the scene, telling them they were going to “drink their blood.” Vilas Novas explained that the men behind the attack were known drug traffickers who operated with impunity — local press reports indicate that drug traffickers and criminal groups in the area where Vilas Novas lived have at times rivaled law enforcement.

“It wasn’t just a barroom brawl, it was a narcotrafficker,” Donohoe said. “Someone who the government can’t control.”

Conversations with Hoffmann also revealed something Vilas Novas described in conversations with immigration attorneys in Texas but had not discussed in her initial credible fear interview: years of domestic abuse and stalking by a former partner. Vilas Novas explained how, at the age of 14, she met a man who was roughly a decade older who became her boyfriend. Shortly after they started dating, she said, the man began beating her regularly, once stabbing her in the leg in a fit of jealousy. Though she left him after six months, Vilas Novas said the man maintained an ongoing and threatening presence in her life. When the father of her daughter left her, Vilas Novas said her ex made it known around their small town that he wanted her back.

Asylum seekers’ lack of disclosure on domestic violence is something Donohoe and her team come up against often. Many women, advocates point out, including Vilas Novas, arrive in the U.S. without knowing that the persecuted “social group” referenced in their CFIs can include women, and as a result don’t identify as members of that population in screening interviews. What’s more, mothers are sometimes required to have their children present during the interview, making candid disclosures to a stranger about deeply personal domestic trauma all the more difficult.

“Mothers don’t know how to answer,” Donohoe said. “They don’t know how they have to say everything that ever happened to them since birth.”

In what they viewed as a sign of how arbitrary the immigration process can be, Hoffman and the legal team also discovered that Vilas Novas’s brother had successfully entered the U.S. after her.

“One of the reasons I left Brazil was that one neighbor threatened my life,” Geraldo Vilas Novas told The Intercept. “The other was this problem with my sister’s ex-boyfriend. He [had] chased my sister, beaten my father — I wasn’t going to wait for my time. But I didn’t mention this in the immigration office interview, I just spoke about the problem with my neighbor. They didn’t ask me anything about my sister, so I didn’t mention her.”

On October 5, Vilas Novas filed two complaints with Berks, one requesting a Portuguese translator, the other requesting a room change — Vilas Novas said her roommate’s daughter was routinely hitting her daughter. Instead of support, she and her attorneys believe her complaints made her a target.

“I was accused of child abuse two times,” Vilas Novas said. “The first time they accused me because I picked my daughter up by the arm. Ever since she was little, I have always had the habit of picking her up by the arms, but without meaning to, I dislocated her arm and was accused of child abuse.” The second accusation, Vilas Novas said, was entirely fabricated. Her legal advocates say the accusations resulted in Vilas Novas being placed under 24-hour surveillance until she agreed to take a Berks-administrated parenting course — a Pennsylvania Department of Human Services investigation later determined both accusations were unfounded.

On October 12, a week after Vilas Novas filed her complaints, Donohoe and the legal team submitted a formal request for a stay on her and her daughter’s deportation, citing “threats from a narcotrafficking organization” and “more importantly, violence at the hands of [Vilas Novas’s] former partner who brutalized her since the age of 14.” Bridget Cambria, Donohoe’s legal partner, wrote, “We are currently scheduling a volunteer psychologist to come and speak with Jayne in order for us to prepare a comprehensive request for re-interview.”

In her official declaration to DHS, attached to the stay of removal request, Vilas Novas offered a multi-paragraph account of the incident with the alleged drug traffickers and the intimidation that followed. Over the course of several more pages, she gave detailed descriptions of the physical and sexual abuse she experienced at the hands of her ex, whom she also named, and laid out the specific reasons why she still fears him. She explained why she hadn’t raised the issue of the domestic abuse in her original credible fear interview — because the asylum officer had advised her to keep her answers short and because she was “afraid that there would be a permanent record in the United States government and that he would find out” — and she asked to be heard again.

“There is nowhere in Brazil where my daughter and I could live safely,” she said.

ICE denied the request the following day.

With the denial in place, ICE moved to deport Vilas Novas and her daughter as quickly as possible. Donohoe’s team countered by fast-tracking a formal complaint to DHS’s Office for Civil Rights and Civil Liberties that they had already been drafting. Cambria, Donohoe’s colleague, filed the complaint that afternoon. Outlining what Vilas Novas and her daughter had gone through, including “mental health issues and extremely frustrating language issues,” Donohoe wrote that “this case has every facet of violations of civil rights in family detention” and argued that their ordeal reflected a broader problem with the family detention system.

“For some reason the Asylum Office has begun a pattern of not understanding that domestic violence victims do not immediately disclose interfamilial violence to strangers, and in cases of extreme violence and extreme youth, this is more often than not the case,” she wrote.

In Vilas Novas’s case in particular, Donohoe presented two core issues that she considered troubling. The first stemmed from Vilas Novas spending nearly a month and a half unable to fully communicate with any of the staff detaining her and her daughter. “She filed a language access complaint with Berks and rather than being handled in a professional way, Jayne understood that if she continued to be a ‘problem’ they would remove her or take her daughter, a threat which unfortunately we hear often,” Donohoe wrote. “Now a mere eight days later (coincidentally the normal time it would take ICE to purchase a ticket), she has been taken from Berks.”

The second issue Donohoe identified had to do with ICE’s claim that Vilas Novas’s attorneys had sufficient time to settle her case. “ICE states that we had 41 days for her to be evaluated, the length of detention,” she wrote. “However during that time she has been engaged in a CFI process that absorbs time. Then she endures a transfer from Texas to Berks. Texas where she had pro bono counsel working on her case. Now sent thousands of miles away to Berks where we, as local pro bono counsel, have to scramble.”

Donohoe, whose legal team currently represents around 40 women at Berks, explained that she and her colleagues receive no notification when a new person or family arrives at the facility. “We rely on word of mouth,” she wrote. “Once we learned that Jayne was here we immediately began working on her case, however we have had a little over two weeks time to finish everything, including coordinating everything between TX and PA.”

“It is absolutely a winning case,” Donohoe wrote. “And the terrifying part of this all, is it may be a bed or a # for ICE, but to Jayne and her child, it’s the difference between being safe and being terrorized or killed.”

“I actually physically fear for them,” she added.

Vilas Novas and her daughter were at the airport, their bags already loaded onto a plane bound for Brazil, when their deportation was halted. The last ditch effort worked, with DHS civil liberties officials informing Donohoe’s team that they would look into the case.

Despite the break, Vilas Novas’s outlook grew increasingly dark in the weeks that followed.

As her case was wending its way through the immigration bureaucracy, Vilas Novas learned that her ex had confronted her father back home in Brazil — he had asked about her, and when her father refused to answer, her ex grabbed a horse whip and lashed him in the street. In an interview with The Intercept, a person close to the family, who requested not to be named for fear of retaliation, confirmed that the assault happened. The attack, Vilas Novas said in one of her declarations, was on her mind on the night she cut herself.

“I started crying,” she said. “This is someone who has made me suffer since I was 14 years old. I had to leave my country because of fear of him. … All of this ran through my head and left me feeling like I wanted to die.”

On November 23, the day before Thanksgiving, Vilas Novas’s second request to be re-interviewed was denied.

What happens next in the case remains to be seen. The Brazilian consulate initially told The Intercept it was unaware of the detention of Vilas Novas and her daughter. After confirming they were indeed being held, the consulate said in a statement, “The deportation of both of them should be suspended by the American authorities.”

ICE declined to address any of the specifics in Vilas Novas’s case. When asked whether it had looked into her allegations that she had been the subject of retaliation for her complaints at Berks, the agency said in a statement that it “remains committed to providing a safe and humane environment for all those housed by the agency. ICE does not retaliate in any way against individuals who file grievances against facility conditions or staff. Consistent with agency policy, Berks residents are afforded the opportunity to privately express any concerns they have with the facilities. These filings often undergo many levels of agency scrutiny to ensure residents’ concerns are quickly and adequately addressed.”

On the issue of Vilas Novas’s attempts to secure a new interview, ICE directed questions to U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review. The former said it could not comment on decisions in individual cases; the latter did not respond. Berks did not respond to a request for comment.

With family in Massachusetts offering to take responsibility for Vilas Novas and her daughter, including an uncle who is a U.S. citizen and an aunt who is a lawful permanent resident, the pair could be safely released as the case continues, Donohoe and her team argue.

For now, the open DHS civil rights investigation is preventing ICE from deporting Vilas Novas and her daughter. When that will conclude, however, is unclear. According to Hoffmann, the young mother hasn’t taken the news well and doesn’t know how much longer she can hold out.

“All of the lawyers who’ve worked on Jayne’s case, the lawyers here and the lawyers back in Texas, have said this is one of the strongest cases they’ve seen and they can’t understand how her RFRs [requests for review] keep getting denied — she has so much documented abuse, documented threats,” Hoffmann said. “The good thing in her case right now is that she does have this stay because of the ongoing investigation by the Office of Civil Rights and Civil Liberties, so she’s protected, but the problem is she’s so miserable in detention,” she said. “Staying there is better than going back to Brazil, but it’s really bad.”

The pushback against the Obama administration’s family detention apparatus has been substantial — and has gotten some results.

In January, Pennsylvania’s Department of Human Services announced that it would not renew Berks’s license to operate as a “child residential facility” because the facility was “operating as a residential center for the detention of immigrant families, including adults,” rather than its approved purpose. The facility has been permitted to continue operating while it appeals that decision. In September, DHS released the results of a specially appointed committee’s year-and-a-half-long review of the government’s family detention practices. The first recommendation of the 158-page report, highlighted in red, was that the detention of families needs to stop. Earlier this month, hundreds of women and children were released from the for-profit detention centers in Texas after a judge ruled that the licensing for the facilities “contravenes Texas Human Resources Code … and runs counter to the general objectives of the Texas Human Resources Code” — meaning all three of the nation’s immigrant family detention centers are currently operating without licenses.

And yet for all of the progress that’s been made, immigration advocates are profoundly worried about what the future might hold. Donohoe, the Pennsylvania immigration attorney, met with senior officials from DHS when the committee’s findings on family detention were released. Sarah Saldaña, the director of ICE, was also present. According to Donohoe, Saldaña’s message was that family detention is here to stay. It’s an immensely frustrating argument for immigration attorneys who have spent the last two years pointing out that family detention, in its present form, didn’t exist before 2014.

“It’s not a law,” Donohoe said. “There is no law that mandates family detention.” Still, Donohoe said the ICE director’s position was clear. “She said, ‘It’s for the next administration to deal with the report.’”

“I’m sure she didn’t know or think that the next administration would be Donald Trump,” Donohoe said.

Rising to power on a platform of anti-immigrant rhetoric, Trump has vowed to deport anywhere from 2 to 11 million undocumented immigrants and implement the most aggressive enforcement of immigration laws possible. The president-elect has also promised a federal hiring freeze that advocates say would bring the nation’s already disastrously overburdened immigration courts to a grinding halt, resulting in more people held in detention. Aside from his infamously hardline positions on Syrian refugees, Trump has been characteristically vague on what exactly he would do with people who come to the U.S. fleeing danger in their home countries, though on the campaign trail, he at one point called for an increase in “standards for the admission of refugees and asylum seekers to crack down on abuses,” and his talk has consistently reflected a vision of zero tolerance for anyone who comes to the U.S. without papers. All of this, attorneys worry, points to a world in which the very worst elements of the Obama administration’s immigration legacy are taken to new levels and the problems inherent in the current family detention apparatus become further entrenched.

“That’s the whole thing,” Donohoe said. “For the past year everybody has been saying, ‘Oh, god, what would Trump do to immigrants? What would Trump do?’ It’s like, if you care about what Trump would do to immigrants, Obama is paving the way.”

“He has paved the way for everything that Donald Trump says he is going to do,” she said. “It’s his Department of Justice that argued that kids in family detention aren’t covered under Flores. It’s his Department of Justice that is arguing that these habeas moms don’t deserve a day in court.”

“I say if you are afraid of Donald Trump, then you tell Obama,” Donohoe said. “This is all Obama. He can end it. He can shut it down.”