The Bureaucratic Nightmare of Fighting Deportation

By Masha Gessen, The New Yorker

05 April 18

 

n immigration court, as in any bureaucracy, most of the time is spent waiting. Anastasia Schimanski; her mother, Olga; Anastasia’s girlfriend, Stephanie Avery; and Anastasia’s lawyer, Holli Wargo, were waiting in the federal courthouse in Hartford, Connecticut, in a small, windowless room marked “Pro Bono Room,” although theirs was not a pro-bono arrangement.

They were waiting for a hearing on Schimanski’s deportation case. She was originally “placed in removal proceedings,” as it’s called—a process that would determine her eligibility for deportation—back in November, 2012. By that time, she had lived in this country for twenty-one years. She came here with her mother in 1991, at the age of eleven. They came for a summer vacation, but that August, hard-liners attempted a coup against Mikhail Gorbachev; Olga got scared, and they stayed in the U.S. longer. Then Olga met someone and married him, and they stayed permanently. They got green cards: Olga as the wife of an American citizen, and Schimanski as her minor child.

When Schimanski finished high school, she enlisted in the Navy. At around the same time, she began experiencing symptoms that were eventually diagnosed as Charcot-Marie-Tooth disease, a degenerative condition that can cause chronic pain and deformities in the extremities. She never made it through basic training. Twenty years later, her Facebook page lists “honorable discharge from the Navy” as her sole professional accomplishment. Since the early discharge, she has had eighteen operations. She often uses a wheelchair, and when she is not using it, she walks with a four-pronged cane. She falls a lot.

With surgeries and with chronic pain came prescription painkillers. The story of Schimanski’s opioid addiction is a painfully common American story. Four years ago, she finally succeeded in switching to a methadone maintenance program; going without anything to dull the pain is not an option. Over the years, Schimanski has amassed a record of twenty-three arrests, including an aggravated-felony conviction, which stemmed from a forged check for forty dollars; she had swiped a blank check from Olga’s workplace. She was arrested and sentenced to a year in prison in 2004, of which she served ninety days; Olga paid her employer back.

The family had long believed the matter to have been settled and the punishment to have been served, but in the eyes of the Department of Homeland Security, Schimanski’s aggravated felony fell under the provisions of Section 237 of the Immigration and Nationalities Act, which lays out the grounds for deportation, including convictions for an aggravated felony. As deportations ramped up under President Obama, Immigration and Customs Enforcement (ICE) agents rounded up people with aggravated felonies, which is how Schimanski ended up in “removal proceedings” eight years after her conviction.

Schimanski did not serve in the U.S. Army in Afghanistan, as one recent deportee did. She does not have children who are U.S. citizens. She has not led an illustrious or even a productive life. She does not have great promise or ambition. She lives in Guilford, Connecticut, with her mother, who works as an aide in a group home, and a service dog whose job it is to alert Olga when her daughter falls. Stephanie Avery, who works as a waitress at Denny’s, lives a half-hour’s drive away, in West Haven; they have been together for seven years and have discussed marriage and children, but Schimanski’s precarious status has made planning impossible. The only thing that entitles Schimanski to the compassion of her fellow-residents of the United States is her humanity.

It is humanity that immigration law is intended to protect. Judges are not instructed to look kindly on military veterans or brilliant students—they are supposed to prevent the deportation of human beings to places where they are likely to face persecution or torture. Schimanski’s lawyer was arguing that, as a lesbian, Schimanski would more likely than not be persecuted in Russia, probably denied medical treatment, and certainly denied access to methadone, which is illegal in Russia. Her original argument for a withholding of removal was denied in January, 2015; a subsequent appeal was dismissed in 2016.

I learned about the case when Schimanski’s family asked me to serve as an expert witness, because I have written extensively about the persecution of and systematic violence against L.G.B.T. people in Russia. In looking into the possibility of testifying, I learned things that I’d never known about immigration court. As a person born outside the United States, in order to testify in immigration court I would have to furnish my alien registration number, even though I was naturalized twenty-nine years ago. Immigration court treats naturalization as a fiction: anyone who wasn’t born in the United States is Other. In the end, for unrelated reasons, I didn’t testify; instead, I was in court as a journalist, and this was why, as Wargo was getting on the phone with another potential expert witness (he couldn’t make it), she asked me to leave the Pro Bono Room. Olga stayed in the room with her, while her daughter and Avery went to the bathroom. I was looking over my notes in the immigration-court waiting area—which, with rows of gray-upholstered plastic chairs, looks like the waiting area in any bureaucratic office—when Avery ran in.

“They are putting her in handcuffs and taking her downstairs,” she screamed. She was crying and hyperventilating.

I followed Avery as she ran back to the elevator bank where Schimanski had been taken. Three men who, I later learned, were ICE agents were getting on an elevator with Schimanski. I asked the men why they were detaining her.

“I’ve seen you on MSNBC,” one of the agents answered, by way of telling me that I wouldn’t get an answer.

Then Schimanski was gone, and the four of us remained in the large waiting area. Avery was crying, repeating over and over, “Does this mean I’ll never see her again?” Olga was speaking Russian to me, trying simultaneously to explain and to understand what had just happened. She was convinced that it was somehow Wargo’s fault. Avery agreed. “I don’t understand,” she said. “She is not telling us enough. She is not explaining something. I don’t understand.”

Wargo didn’t exactly understand it, either. She knew that Schimanski had a D.U.I. arrest that technically gave ICE cause to detain her, but the timing was surprising. She had never had a client detained minutes before that client’s hearing was scheduled to begin.

Schimanski called from two floors below. Olga put her daughter on speakerphone.

“My medication,” she kept saying. “My medication, Ma. They don’t give you medication in jail. Now I’m in custody. They are saying I’m not going to have court today.”

Olga tried to get her daughter to switch to Russian, to make their discussion more private, but Schimanski’s Russian wasn’t good enough to maintain a conversation, especially when she was upset.

“Ma, if they take me to jail, I’m going to need money,” she said. “What I’m worried about is my medication. I’m going to die without it. Answer your phone. Turn it on, so you can hear it.” As Olga got ready to hang up, Avery asked, “Will you tell her I love her?”

The hearing, scheduled for 10:30 that morning, began at 10:35.

“Where is your client?” the immigration judge Michael Straus asked, addressing Wargo.

“She got arrested about fifteen minutes ago,” Wargo answered.

“Why would you do that?” the judge, visibly irritated, asked the two attorneys representing the Department of Homeland Security. “Wouldn’t it make more sense to arrest her after the hearing?”

“There is a material change in circumstance,” John Marley, the general attorney for D.H.S. in Hartford, said.

“I don’t understand the strategy,” Straus said.

The judge sounded incensed. Marley seemed amused. Avery was still crying audibly.

Straus was the judge who denied Schimanski’s original plea for a stay of removal two years ago. Now he and Wargo quickly reviewed her filing—more articles about worsening conditions for L.G.B.T. people in Russia—and the relevant regulations, which required that Schimanski show that she would most likely face persecution if she returned to Russia. It emerged that the D.U.I. arrest was scheduled to be dismissed, because Schimanski had not actually been driving the car at the time of the arrest and had also complied with all the required classes following the arrest; what’s more, the D.U.I. would not have any bearing on her eligibility for a stay of deportation.

The judge again demanded to know why ICE found it appropriate to arrest Schimanski before her scheduled hearing.

“Obviously, for an individual who’s had a very long career with drugs and alcohol, over twenty-five arrests, to have another arrest—she is clearly a danger to the public,” Marley said.

“She doesn’t have a car here!” Straus said, clearly exasperated. “She is not a danger in the courtroom.”

Avery continued crying.

At 10:50 the judge gathered his binders and said that he would be right back.

“Are you planning on making a decision, your honor?” Wargo asked.

“Maybe,” the judge said.

Now Wargo had an impossible decision to make. She could go downstairs to ask Schimanski to waive her presence in the courtroom; otherwise, Straus could not legally render a decision. But what if Straus, who had a reputation for being tough, and who had already rejected Schimanski’s claim once, was not going to rule in her favor? In that case, Schimanski might be better off not signing the waiver. But this would mean that she would stay in detention, and Olga was claiming that her daughter would not survive without methadone. If she stayed in detention, Schimanski would be moved to Massachusetts—the nearest state with ICE facilities for women—and would then face an immigration judge in Boston. What if her chances with that judge were better? At the same time, Straus seemed angry at D.H.S. But then, even if Straus granted relief, ICE could still hold Schimanski for as long as six months if it chose to appeal the decision. Waiving Schimanski’s presence could unnecessarily risk a negative decision.

Straus returned at 11 A.M. and addressed D.H.S. “Have the background checks been completed?” he asked.

“No,” Marley said. He explained that a background check had been ordered and submitted, but it came back perfectly clean, as though Schimanski had never been arrested. Since the background check was erroneous, it was as good as missing. Without it, the judge could not render a decision. Marley shrugged. The bureaucracy had failed. A person’s fate hung in the balance, but the bureaucracy—which Hannah Arendt once described as “the rule by Nobody”—can have no shame.

The judge ordered a new background check and declared a recess until the afternoon. Wargo continued to fret over her impossible dilemma. Olga continued saying that her daughter could not survive detention. Avery continued crying.

At 1 P.M., Straus demanded to know where Schimanski was. Marley explained that she could not be brought upstairs—she was about to be transported to Massachusetts. But Wargo asked the judge to proceed. With no one to advise her, Wargo had decided to ask Schimanski to waive her presence. If Straus came back with a denial, that would mean that Schimanski would remain in detention, and that is was possible that Avery would indeed never see her again. Olga had already decided that if her daughter was deported, she, too, would go back to Russia to try to support her. Olga had a sister there, but relations between them had been strained for years, ever since the sister had found out that Schimanski was a lesbian. It was unclear how they would survive if they went back to Russia, but Olga felt certain that, without her, her daughter couldn’t survive at all.

Straus announced his decision: he was convinced that, if she returned to Russia, Schimanski would more likely than not face persecution. He was granting her application for withholding of removal.

Instead of celebrating, everyone waited again. Marley had said that the D.H.S. might appeal the decision, and this would mean that Schimanski would remain in detention. At that point, it wasn’t even clear to Olga and Stephanie if she was still in the building.

At 3:30 P.M., Olga was contemplating leaving. Just then, Schimanski appeared in the waiting room. She had been released. D.H.S. had decided not to appeal. Everyone cried again, for joy and helplessness and fury.

Olga, her daughter, and Avery drove back to Guilford, where they stayed up, giddily and sometimes angrily recounting the details of that day, until the middle of the night. It seemed, finally, the end of Schimanski’s ordeal. Technically, her withholding of removal is temporary; it does not grant her the right to legal permanent residence, and she will never be able to leave the country and return. But, generally speaking, people can live with this status their entire lives.

These days, however, the permanence of Schimanski’s temporary status is less certain. Jeff Sessions’s Justice Department is demanding ever more and faster deportations from the immigration courts. Just as immigrants are the most vulnerable part of the American population—which makes them the perfect target for the bureaucratic sadism of the Trump era—so immigration courts may prove to be the easiest courts for the Administration to subjugate. After all, these courts already treat anyone born outside this country as an interloper, and as suspect. It may prove entirely too easy to reframe them as courts that protect this country from human beings, rather than the other way around.