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Petitioners’ friends and family members, lawyers, law students, reporters, and other media types packed a large immigration courtroom for the asylum hearing of Miguel and Mary Carmen Gonzalez. Emma and Emilio sat directly behind the counsel table, dressed in their Sunday best. A couple of family members, Zack Blake, and an army of paralegals and investigators sat to their left. Miguel, Mary Carmen, Reed Spencer, and Amy Fletcher sat with Marshall Mann at the counsel table.
James Theurer, supported by a contingent of government lawyers and paraprofessionals, occupied the counsel table on the opposite side of the courtroom. The lawyers and assistants on each side were mumbling to each other, shuffling papers back and forth. All awaited the arrival of the Honorable Leo J. Farhat.
“All rise!” The court officer stood and shouted. The murmuring stopped almost immediately. Everyone rose as a door behind the bench opened, and the honorable one ventured into the courtroom.
“Be seated,” Farhat ordered. Everyone in the gallery and at counsel tables noisily sat down. “Calling: In the Matter of Mary Carmen and Miguel Gonzalez,” Farhat barked. “Appearances for the record, please?”
“Marshall Mann for the petitioners, Your Honor.”
“James Theurer, for the government, Your Honor.”
“Thank you for that, counselors. Any preliminary matters?”
“May we approach, Your Honor?” Theurer requested.
“By all means,” the judge replied, motioning them forward. A long, animated conversation developed, in camera, out of earshot of the others in the courtroom. When the confab was terminated, each attorney returned to his respective counsel table to brief their co-counsel and administrative staff.
“Mr. Mann, are you ready to proceed with your opening statement?” The judge inquired after waiting a minute or two for the conversations to end.
“Yes, Your Honor.” Mann stood and addressed the court.
“Proceed,” invited Judge Farhat.
“May it please the court? Our country has a long tradition of taking in immigrants from other countries who become loyal and prosperous Americans and whose children and grandchildren now make America the country it is today. However, despite that proud tradition, with time, the American success of certain minority citizens turns into resentment, even hate, along with accusations like ‘they’re bringing crime;’ ‘they’re bringing drugs,’ and similar epithets.
“With this long tradition of taking in immigrants comes a long tradition of anti-immigrant prejudice and hatred. In the late 1800’s it was the Chinese, the Chinese Exclusion Act of 1882, and the so-called ‘yellow peril.’ During World War II, it was the Japanese. More recently, following 9-11, it was Muslims and a so-called ‘Muslim ban.’ Today, it’s people of Hispanic origin. Our president and his immediate predecessor have openly referred to immigrants of Latin descent as lacking education, drug traffickers, and socio-economically inferior . . .”
Marshall continued his opening statement, offering what he intended to prove. He focused first on the Gonzalez citizen-children, pointing them out to the judge and asking them to stand. He emphasized what removal or deportation of their parents would mean to these young citizens of the United States. He painted a portrait of this mixed-status family.
“What forces motivated the parents to make the treacherous journey to the U.S. and a better place and life for their family? Why would they break the law and stay here without proper documentation, knowing their actions might affect their children for years to come?”
Marshall promised to introduce testimony from a clinical psychologist. He referred Farhat to the doctor’s report, by exhibit number, page number, and tab contained in the brief. In the report, the doctor shed light on the social and psychological experience of children born US citizens to undocumented parents. What impact does their parents’ undocumented status have on them? How do they see the world? What is criminal and what is not? What effect has guarding their parents’ secrets had on them? The doctor referred to such children as a ‘special class of orphan.’ When parents are taken, children lose their daily physical presence, love, and affection. While they may still be alive, they are not accessible—hence the word ‘orphan.’ They might as well be dead. Above all, Marshall effectively humanized their situation.
“These children were brought into the world without knowledge or choice about deportation. They did not expect to discover that their parents might someday, any day, be sent back to the country they came from. These kids grow up in constant fear, psychologically damaged by perpetual worry. They are ‘collateral damage’ in a political war to enact laws, policies, and immigration enforcement practices.”
Marshall looked directly into Farhat’s eyes. “Do their rights merit your attention, Your Honor? They are U.S.-born citizens, innocent of any wrongdoing. Their situations seldom rise to the critical attention of legislators, policymakers, or law enforcement officers.
“These brave people who decide to come to America— arrive on foot, smuggled in car trunks, or smoldering hot trailers of eighteen-wheelers. They encounter disease, hunger, even death to get to this country. And, surprise, they are greeted with public scorn and humiliation, criticism from our leaders, punishment and possible arrest, detention, and, finally, deportation in an increasingly harsh legal system.
“Your Honor, these cruel acts are contrary to the American Convention on Human Rights signed by the U.S. in 1969. Article 17 states: ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.’ Article 19 states: ‘Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.’
“These are not statistics, Your Honor. They are people. Their immigration status does not alter their intrinsic humanness. They seek protection for their children and have goals and aspirations like all parents. Here, at this moment in time, however, they may be torn apart by deportation and separation.”
Judge Farhat was sharply focused on Marshall throughout the presentation, following the exhibits and accompanying corroborative evidence. The judge was obviously impressed with both the oral and written presentation.
Marshall continued, discussing the ‘two fears’ - torture and persecution. He did not discuss Miguel’s political advocacy in Venezuela, only the fact that he stood accused of political advocacy. The accusation placed a target on his back in his home country. He did not choose to leave Venezuela—he was compelled to go, based on circumstances on the ground. Marshall referred the judge to numerous exhibits in the brief package to corroborate his statements and observed Farhat consistently referring to sections in the folder as Marshall argued. Marshall also noticed, with a wry smile, that James Theurer was doing the same.
Social media posts, Google Maps printouts, and eye-witness affidavits, chronologically presented by a master litigator, painted a compelling portrait of a corrupt country in turmoil and the torture and persecution of anyone who dared to criticize those in power. Marshall promised to present live testimony, written documentation, witness statements, and affidavits of family members and friends left behind as evidence to support his claim.
He knew the evidentiary standards were loose, but he endeavored to present most of it in compliance with evidentiary rules. He also knew the judge would afford it more weight. Perhaps the rules weren’t important, but the power and quality of the evidence was.
In the end, Marshall argued that Miguel and Mary Carmen had nowhere else to go. Miguel’s ‘protected grounds’ for asylum were his participation in a particular social group and for persecution and potential torture for speaking up about it, expressing a contrary political opinion to that of the Venezuelan government. This caused the local and national police to view Miguel as an enemy combatant, someone who was considered ‘against the government,’ a protected ground, a legitimate reason for an alien to seek asylum in the United States of America.
James Theurer’s opening statement was considerably shorter than Marshall’s. His presentation brief and folder were boilerplate yet still impressive. Theurer and his team hit on all the necessary points of contention, focusing on Miguel’s opportunity to seek asylum before he became undocumented and Miguel and Mary Carmen’s “utter failure to even attempt to seek permanent status.” This, as Amy Fletcher noted, was the weakest part of Marshall’s case. Despite a dynamic opening, Marshall, Miguel, and Mary Carmen had their work cut out for them.
As the trial droned on, it became apparent to all in attendance that Marshall’s advocacy, passion, organization, and preparedness were winning the day. Theurer and his team were doing their best to weather the onslaught, but a combination of Marshall’s superior oratory skills, Zack Blake’s money, and the power of the Blake firm machine were wearing them down. When Theurer and team would raise a solid point, Marshall and team would counter it with dozens contrary facts, along with tabbed and paginated exhibits offered as corroborating evidence.
“Mr. Gonzalez did nothing to attempt to solve his issues with local authorities. He never directly involved the police and made zero effort to stay and fight for better conditions—he just suddenly decided to flee and never go back,” Theurer argued.
“That’s not true, Your Honor,” Marshall interjected. He looked to Amy, who handed him a section of the brief. “I refer you to our brief, tab 3, page 74, where you will find multiple affidavits and other documentation of retaliation against witnesses who report incidents to the police, documentation of corruption, and infiltration of law enforcement by the criminal element, gang, and cartel members. That’s the reason it was unreasonable to expect my client to rely on local authorities, then and now. The evidence of persecution is overwhelming, Your Honor.”
The hearing droned on. Zack, recalling Farhat’s ruling in the Khan case a few years ago, began to feel confident about the outcome. He marveled at Marshall’s advocacy and trial preparation and was honored to have him as a partner. Zack couldn’t be more pleased that he created the firm’s immigration department, with Marshall running the show.
The only evidence standing in the way of victory for Marshall, Amy, and their clients was their failure to seek permanent status while still in legal status. To his credit, Theurer made this a consistent theme in argument, evidence presentation, and testimony. Not one piece of evidence could refute the truth of this averment. While Marshall could not directly rebut the evidence, he could certainly explain it. As usual, he approached this burden with a sledgehammer rather than a gavel. He hammered the official record with detailed facts, corroborating evidence, and relevant law.
Easily located—if one knows where to look— but buried in obscure sections of Marshall’s briefing documents, was an argument demanding that Miguel and Mary Carmen’s removal proceedings be dismissed without prejudice. Again, Amy efficiently located the section and handed the documents to Marshall. The pair was a well-oiled courtroom machine. In this section, Marshall argued, with solid, supportive case law, that ICE lacked authority to institute the plant raid, carry out pre-planned mass detentions, interrogate, and make arrests at the plant. Where was the requisite probable cause or individualized reasonable suspicion that Miguel and Mary Carmen were undocumented?
While the search warrant for the plant’s employment records was executed, Miguel and Mary Carmen were detained, interrogated, and, ultimately, arrested for immigration violations, along with multiple co-workers. Based on statements made by the couple while in detention, ICE agents prepared a Form-213. A 213 is a form used on an apprehended undocumented foreign national. It describes the alien’s history of apprehension and detention, the manner which the person allegedly entered our country, any history of prior contact with authorities, or crimes committed. In the Gonzalez case, the 213 alleged that Miguel and Mary Carmen came to this country legally and overstayed their visas. Somewhere along the line, the government obtained copies of the couple’s birth certificates.
Marshall now argued that this evidence should be suppressed, with charges dismissed on Fourth Amendment grounds. The government was arguing that its search warrant for records that the plant routinely hired undocumented people permitted them to detain, interrogate, and arrest many individuals without any specific evidence or reasonable suspicion as to the guilt or innocence of any one individual.
Marshall argued the opposite; that the government’s warrant did not permit agents to retain or interrogate anyone who was not a target—under reasonable suspicion—in the underlying objective of the raid. He argued that the purpose behind the agents’ raid was relevant because the agents had no pre-existing suspicion that Miguel or Mary Carmen was undocumented. A pre-stated valid purpose to detain and interrogate the Gonzalez couple was required.
Referring to the warrant as ‘administrative,’ Marshall argued that the search was invalid due to an inadmissible purpose and whether the agents would have detained Miguel and Mary Carmen but for that purpose. To buttress his argument, Marshall subpoenaed the government’s planning documents and maintained that the Gonzalez couple satisfied this burden because the planning documents clearly demonstrated that the central purpose of the raid was not to find documents but to arrest undocumented workers.
“Your Honor, under section 287 of the C.F.R. (Code of Federal Regulations), a person cannot be detained or questioned unless an ICE agent has reasonable suspicion, based upon specific facts, that the person is in the country without proper documentation. Since the agents in this case had no pre-existing suspicion, any evidence of status obtained from detention or interrogation of this couple must be suppressed. If you suppress the evidence, there is none to support their deportation and the case must be dismissed. Once you make that determination, and we are convinced that you will, all that is left for you to consider is our clients’ petition for asylum. But, not under threat of deportation.”
Marshall was proud of Amy and her briefing team. Having read their carefully prepared legal memoranda on these issues, Marshall was convinced that this argument conclusively prevented deportation on Fourth Amendment grounds. The government’s plan to target for detention hundreds of workers at multiple Detroit area plants, turned on obtaining and executing search warrants for employment records. But the real purpose of the Riverview warrant was to detain, interrogate, and ultimately arrest workers.
To do any of those things, especially as to Miguel and Mary Carmen, agents had to have reasonable suspicion that they were undocumented. Since ICE agents did not have the requisite suspicion, any evidence obtained was inadmissible as the so-called fruit of the poisonous tree. If the warrant is tainted, so is all the evidence obtained after its execution. Marshall was almost giddy as he made these arguments, confident that they would win the day.
