THE FIRST SOLUTION
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THE FIRST SOLUTION

Immigration | Law Enforcement | United States

An Immigration Attorney Sounds the Alarm: When US Customs & Border Protection Plays God, No One Wins

Prequel to Portland, Oregon: Charlene D’Cruz exposes Trump & Co’s agents-of-cruelty-turned-goon-squad

From the Twitter account of Acting Commissioner of US Customs & Border Protection, Mark Morgan @CBPMarkMorgan (June 1, 2020)

The Near Revolution That Was Televised

In April, 1989, 31 years ago, peaceful protestors gathered at Beijing’s Tiananmen Square to mourn the death of a Communist Party official who advocated for liberal reforms. As the demonstration grew to include a million people in Beijing and spread to 400 more cities across China, demands evolved to include the democratic rights of political participation, due process under the law, free speech, and a free press.

The world watched, riveted, hopeful that the Chinese leadership might finally throw off the yoke of its authoritarian past. But by the end of May, Premier Deng Xiaoping had had enough. He declared martial law, mobilized 300,000 troops, and cleared Tiananmen Square.

In the earliest hours of June 4, 1989, troops armed for battle marched behind tanks that rolled through Beijing, killing an estimated 10,000 Chinese citizens. Equal numbers were thought to be wounded, but no one knows for sure, because tyrants invent their own reality.

Decent people around the world recoiled. And then there was Donald Trump.

He was impressed with the “law and order” tactics of the China’s leaders: “They were vicious, they were horrible, but they put [the protests] down with strength. That shows you the power of strength,” he told Playboy in 1990.

He was so impressed, in fact, that as president he amped up the approach in his own “law and order” playbook, militarizing the US Southern border and imposing a “deterrence by cruelty” immigration policy that runs afoul of basic decency, the US Constitution, as well as international law.

In the earliest days of June 2020, members of the agency responsible for meting out his criminal border patrol strategy — on an invisible population with little recourse in obscure corners of the US — were deployed alongside US National Guard, Park Police, and specially trained prison guards, to clear Lafayette Square, just across the street from the White House. I speak of Customs and Border Protection (CBP), the largest federal law enforcement agency of the US Department of Homeland Security (DHS).

Meanwhile, flying over the skies of Minneapolis, Minnesota, well outside CBP’s 100-mile border perimeter jurisdiction, were CBP predator drones. These unmanned aircraft intended for spying on wartime enemies, have been spotted circling many US cities where protests against racism and police brutality rose up in the aftermath of the death of George Floyd at the knee of a cop.

If I sound alarmed, I am. For I witnessed CBP officers at work while I was on the border. They operate by a rulebook that is not codified and appears to be in constant flux.

But don’t take my word for it. Listen to the experience of immigration attorney Charlene D’Cruz, who has been going toe-to-toe with CBP agents since before China’s leadership opened fire on its own people while the world looked helplessly on.

“They are indifferent to human life.”

From the Twitter account of Acting Commissioner of US Customs & Border Protection, Mark Morgan @CBPMarkMorgan (June 4, 2020)

“Trying to solve the issue of police brutality with the use of the most brutal arm of law enforcement puts at risk the rights of all US citizens right now,” says Charlene. “Its culture has always been ruthless, but CBP impunity has been ratcheted up many times since Trump’s inauguration.”

Born in Mumbai, India, Charlene is an immigrant to the US herself. She lived and worked in Minneapolis for 23 years, as both a teacher and legal-aid attorney, defending the rights of the poor and disabled in the very area of town where George Floyd begged for, and was denied, his last breath.

That makes Charlene no stranger to the “savage inequalities” that black and brown people face daily in the US, and well versed in the reality of injustice on the part of US law enforcement agencies. “But the CBP has always been in a class of its own,” according to Charlene, who has worked pro-bono on behalf of asylum seekers her entire legal career.

“Operating unchecked and without oversight or accountability, they have eviscerated due process and the rule of law at the border. They are also indifferent to human life.”

Charlene’s immigrant advocacy dates back to the 1980s when Central Americans were running from the violence caused by the CIA-supported and US-funded Dirty Wars. Right out of college, she volunteered to help refugees detained in the middle of the Arizona desert, in Florence — the site of a former Japanese internment camp turned detention center. Immigrants stranded there, in the harshest of conditions, were left to navigate a confusing legal system on their own. Charlene first put her stamp on the world of immigrant advocacy then, helping to create the Florence Immigrant & Refugee Rights Project.

At the height of Trump & Co’s family separation crisis in 2018, Charlene was back at the border, this time in Tijuana, offering legal counsel under the auspices of Lawyers for Good Government (L4GG). A partnership of 40, or more, top law firms, L4GG launched a pro-bono immigrant advocacy network, Proyecto Corazon, to help reunite parents and children separated by “zero tolerance.” But as that policy gave way to “metering,” then evolved into the Migrant “Protection” Protocol (MPP) in 2019, L4GG had to pivot and expand as the rights abuses inflicted by Trump & Co’s immigration agenda continued to mount. When the iron curtain of MPP dropped, effectively ending the right to asylum in the US in defiance of international law, help was needed on the border more than ever.

Traci Feit Love, Founder & Executive Director of L4GG, reached out to Charlene. “What do you think we should do?” she asked.

Charlene advised setting up a system to pair every asylum seeker with a pro-bono lawyer, preferably bilingual, to provide remote advocacy; help fill out the notoriously confounding I-589 immigration forms; build case files; and prepare clients for court hearings via What’s App and video-conferencing. On the ground, local attorneys could be tapped to facilitate “know your rights” workshops and represent asylum seekers in Tent Court.

Traci hired her to do just that, creating a new role — Proyecto Corazon Border Rights Fellow — and Charlene opened her office at the Resource Center Matamoros, across the street from the refugee camp, in mid-October 2019.

Project Heart — Proyecto Corazon

Charlene D’Cruz, immigration attorney and pioneer in developing large-scale emergency legal response programs (Image courtesy of Lawyers for Good Government, 2018)

Jim and I first learned of Charlene from the lawyer traveling with the Brooklyn Heights Synagogue group that had adopted us on Day 1 of our Texas road trip gone awry.

“This woman will restore your faith in humanity,” she told us. Tireless in her efforts to defend asylum seekers’ rights, she is perennially overworked and understaffed: another heroic humanitarian, waving the tattered flag of American values, who’d taken on more work than anyone ever bargained for.

“From day one, the needs were so great,” recounts Charlene, “you couldn’t afford to think. Thinking was a privilege. You just had to keep moving, keep shifting the workload, or inertia would set in and all would be lost.”

The morning we rocked up to give her a hand, a line of at least 50 asylum seekers snaked from the 1st floor reception area, down and around the landing of two half-flights of stairs, then spilled out the door and onto the town plaza. They did not appear to be moving.

“Lo Siento,” we were told, “Charlene’s gone to the bridge.” For as early as November 2019, Charlene’s already overwhelming responsibilities had expanded to include representing the rights of the critically ill and infirm unable to break through CPB’s wall of dehumanization at the Gateway International Bridge.

In Violation of Human Rights, Human Decency, Ethics, and International Law

Charlene D’Cruz waits outside Global Response Management’s mobile clinic at the Matamoros, Mexico Refugee Camp to cross an asylum seeker eligible for a “vulnerability exception” from the Migrant “Protection” Protocol (photo by www.borderreport.com)

Though MPP renders all asylum seekers vulnerable by kicking them back to one of the most dangerous places on Earth to wait out their asylum claims, the most vulnerable, by CBP’s own field guidance, are exempt from the protocol. Therefore, when someone with an urgent or documented health issue, or mental or physical disability, requests asylum, CBP officials are expected to grant them a “vulnerability exception,” permitting them to stay in the US with a sponsor while their cases are adjudicated.

But CBP refuses to play by its own rules.

So, Charlene has had to expend precious hours, walking the sick, pregnant, injured, and chronically impaired to the CBP bridge office, with medical consultants from Global Response Management (GRM) in tow, to argue for their rights to exemption. They are always made to wait, sometimes for hours, and they seldom achieve first-time success.

“If someone needs to be crossed, GRM calls me and I make sure their legal stuff is in order. I take the client and a physician from GRM to the bridge,” Charlene told Erin Sheridan in a January 16, 2020, interview. “We get to the bridge and ask CBP to call the supervisor. I present the paperwork. I make the legal arguments. We get pushback.”

Every. Single. Time.

A Case of Sepsis

Waiting on the bridge with one kid with autism and a severe sensory disorder; second kid with autism and seizure disorders; third kid with a rare brain disorder, lissencephaly, and developmental delay. (Photo courtesy of Charlene D’Cruz)

The unexpected partnership began when a Matamoros tent city family presented at GRM’s mobile clinic with a 2-year-old so ill she looked more like a child of 8 months. GRM doctors diagnosed “septic shock,” a medical emergency caused when the body’s immune system goes into overdrive in response to an infection, triggering chemicals into the bloodstream that attack the entire body. Untreated, sepsis will cause organ systems to shut down.

The child needed medical attention stat; and appropriate care could not be found in Mexico. A GRM volunteer doctor from Temple University alerted Charlene, who pulled together the paperwork. The two crossed the child together to argue for an emergency “vulnerability exception” to get the child into the US.

It was a cold day for Texas, 44°F and raining. The CBP supervisor day took a disparaging look at the child dying in her mother’s arms and said, “We’re not taking them.” But Charlene held her ground. She persisted. She insisted. She demanded. She refused to leave. Finally the supervisor called for a CBP medic to come to the bridge.

“Why waste more time?” Charlene pleaded. “It’s cold and raining and this child is sick and dying? Why won’t you let us just get her to the hospital?” Still, the supervisor would not let the child in.

Finally, a CBP nurse practitioner showed up at the bridge. Within 40 seconds, she confirmed a major sepsis manifestation. “This kid has to get in,” she agreed. But as soon as her back was turned, the supervisor denied the child entry again.

It was now 2 hours and 10 minutes since they first addressed the CBP bridge supervisor and the child was crashing. Panicked, Charlene picked up her phone and called everyone she knew. She begged them to call the Brownsville CBP Port Director, Tater Ortiz, to demand that this child and her family be let through. She implored them to spread the word, by word-of-mouth and on social media.

“In maybe 10–15 minutes, 1,000 people had called the port director. They let us in,” Charlene recounted.

The entire process took 3 hours and 37 minutes, and a year off Charlene’s life. It was not necessary, not legal, not moral nor fair. But the child’s life was saved.

What’s a Fistula?

Four tries, 10 hours on the bridge and in court, two attorneys, several days, a doctor and medical staff, the media, and many phone calls to CBP, and Ajlee and her mother are finally on way en route to their sponsor (photo courtesy of Charlene D’Cruz)

Then there’s the story of 7-year-old Ajlee, a little girl with the big fistula. For those who don’t know — because CBP officials sure didn’t — a fistula is a hole in the colon that exposes the body to ongoing infection. In early December, Ajlee’s mom was in Charlene’s office for her initial legal intake. When Charlene learned of Ajlee’s condition, she sent mother and child directly to GRM. Medics declared that Ajlee needed a pediatric surgeon without delay.

The closest was in Corpus Christi, TX, a three-hour drive from Brownsville. They had to get Ajlee into the US.

“She’s draining through her skin,” reported GRM Director, Helen Perry. “But that could change in a matter of minutes. If she drains into her abdomen, she’ll die.”

Charlene took the little girl to the bridge. By the time the supervisor deigned to give them an audience, Ajlee was covered in fecal matter. Mother and child were allowed into the US. But CBP escorted them only as far as the local ER. There, she was cleaned up and put in a diaper. She was back in Mexico five hours later.

But Ajlee needed immediate and long-term care. So, Charlene crossed her over again.

And again.

It took her a week, 10 hours on the bridge, a court hearing, and the help of multiple doctors, but CBP finally relented.

Ovarian Cancer, Toxoplasmosis, Cerebral Palsy, Hearing Impaired, Epilepsy, Sickle Cell Anemia…

The family of a 4-year-old boy with cerebral palsy, Pierre Robin’s syndrome, and an open trach, and a young woman with ovarian cancer obtained vulnerability exceptions on the last day of 2019 (photo courtesy of Charlene D’Cruz)

Then, there’s the case of poor Yánet. She has ovarian cancer, according to GRM. Charlene took Yánet to CBP multiple times before she was finally allowed to see a doctor in the US. He gave her the equivalent of ibuprofen and sent her back to Matamoros.

Same story with Yoladys, who is going blind from an untreated, and very common, parasitic infection called Toxoplasmosis. Charlene gets her in. US doctors give her Ibuprofen. Then CBP sends her back to Mexico. Again and again and again.

“CBP either doesn’t understand or doesn’t care to understand,” says Charlene.

Eventually, Yánet got too sick even for CBP. Her legal and medical paperwork in hand, Charlene and a GRM doctor walked her across together. While waiting for the supervisor, a little boy turned up at GRM also in need of urgent care. Born with cerebral palsy and Pierre Robin Syndrome, which causes a smaller than normal lower jaw, an abnormally recessed tongue, and a cleft palate, he’d been experiencing difficulty breathing and eating.

If anyone should have been exempted from MPP under the vulnerability exception, it would be this little boy. Charlene had him brought across along with three other obvious candidates: a group of deaf asylum seekers.

CBP agreed to take in Yánet and the boy, but not the hearing impaired. Charlene argued, as with every CBP confrontation, that these people also qualified for the “vulnerability exception” and should not be made to live in a tent. The supervisor “invited” them to try again the next day, knowing it would be New Year’s Day and the office would be closed.

Argue. Retreat. Return. Repeat.

Yánet, the boy, and his family finally made it into the US. But not until 4:00am the next morning. They were made to wait through the night before CBP agents began to process them.

Gaming Them at Their Own Game

It took five attempts, 20 hours of advocacy, numerous hours of medics, months of suffering, and hundreds of calls to the Gateway International Bridge, but finally CBP recognized Yoladys worthy of a vulnerability exception. (Image courtesy of Charlene D’Cruz, 2020)

Charlene and GRM’s team eventually gamed the system, tracking serious cases on three-tiers, based on the level of severity.

  • 3 indicates that professional attention is needed, but condition is not yet urgent or chronic;
  • 2 is a case in the balance, it could resolve back to a 3 or tip toward 1;
  • 1 is an emergency, and must be moved right away.

Initially, even Tater Ortiz and his crew found it hard to turn the level-1 cases away, though they tried.

One day an 8-year-old boy presented at GRM with a stomach ache. His mom had done all the normal things moms do, including take him to the hospital in Matamoros. They said it was nothing he couldn’t ride out and sent them back to the tent encampment. But the boy didn’t get better.

As it happened, GRM was again hosting a team of volunteer doctors from Temple University. They had a little ultrasound machine that connected to a smart phone app. Imaging revealed that the boy’s appendix was 9mm bigger than it should be. And, that it was on the verge of rupture.

They laid him in one of Team Brownsville’s canvas wagons and ran him across as quickly, and as gently, as they could. Despite the emergency, the CPB supervisor made them wait an hour.

“Don’t do this,” the doctor implored. “We know it’s going to rupture. Get your physician’s assistant, get somebody up here.” But the CBP supervisor would not be moved.

An hour later, the kid was finally an ambulance. On arrival at the ER, his appendix ruptured. His life was saved, but only in the nick of time.

Unfortunately, the three-tier tracking methodology was starting to wear thin at the time of Jim and my visit. By the end of January, CBP agents were digging in their heels again. They flat out refused to remove four very disabled children from MPP who should have been a shoe-in for the “vulnerability exception.”

And then there was the El Salvadoran man with an infected feeding tube. All who came near him had to fight back nausea. But CBP refused to exempt him.

The Largest Law Enforcement Agency in the Land

left: US Customs & Border Protection “unmanned” aircraft, aka predator drone (photo by US CBP)

CBP is the largest law enforcement agency in the US. It is also the most dangerous as it operates without oversight. Folks living beyond the 100-mile border perimeter may not find CBP’s deployment in the US capital chilling. But CBP incites fear all along the border, every day.

CBP agents assert the power to board public transportation and to set up checkpoints where they stop and interrogate people without warrants or reasonable suspicion. They search children on their way to school; parents on their way to work; families en route to doctor’s appointments or the grocery store. And they profile with impunity; always based on race.

This is the agency that willingly ripped children from the arms of traumatized parents at Trump & Co’s bidding; and that let children in their custody die of dehydration and the flu. CBP agents are responsible for the deaths of more than 100 people since 2010 and not one agent among them has yet to be held accountable.

Dan Friedman @dfriedman33, National Security reporter for Mother Jones (June 2, 2020): “Asked who they’re with, these guys say only that they’re with ‘The Department of Justice.’”

Has the agency now been let loose on all US citizens, not just immigrants and the undocumented?

With the deployment of heavily armed enforcement officers with no obvious affiliations in DC and elsewhere around the country, is the US under Trump & Co slouching toward Tiananmen?

Is this as “unprecedented escalation meant to position Border Patrol as a national police force,” as Yesenia Padilla of the Southern Border Communities Coalition suggests?

One thing’s for sure, wherever armed officers have been given free rein to act with impunity, as CBP has been allowed to do under Trump & Co, the results are never good. Even today, most Chinese will call the Tiananmen Square Massacre jia xinwen — “fake news” — as penalties are steep for those who dare to speak of it.

Special thanks to journalist and photographer Erin Sheridan of People Life Here for her interview with Charlene D’Cruz, which informs many of the personal stories highlighted in this article.

Thank you for reading Episode 12 in my travelogue of a road trip gone awry: THE FIRST SOLUTION: Tales of Humanity and Heroism from Trump’s Manufactured Border Crisis, rolling out on Medium as fast as I can write it because the issues are Just. That. Urgent. Click here to access the Project Forward followed by links to all other articles in the series.

“Let us be reminded that before there is a final solution, there must be a first solution, a second one, even a third. The move toward a final solution is not a jump. It takes one step, then another, then another.”

— Toni Morrison, 1995

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Sarah Towle

Sarah Towle

Award-winning London-based author sharing her journey from outrage to activism one tale of humanity and podcast episode at a time @THE FIRST SOLUTION on Medium