Years and thousands of miles.
Walking, hopping trains, riding buses, surviving on your wits and sacrifice and sometimes, the kindness of strangers. The fact of your presence here is a testament to your strength and smarts and will to survive.
You shrug and say it is the grace of God.
Here is the Mariposa Port of Entry. Here is straddling the two faces of Nogales—Sonora and Arizona—universes apart. But when you roll your “r”s they sound so much alike.
Mariposa. Butterfly. An earthbound grub reincarnated into an airy winged creature that flutters as free as a breeze. For a moment, it’s possible you believe that metamorphosis is available to mere mortals too.
You tilt your head to look at the looming monolith, a paean to imagined invisible lines, and see that it is not a portal into another world but a man-made boundary of metal and concrete. It is a place you never set out to find. You are only here because you know it is your last and only chance.
The guardians of its entryway are stone-faced Customs and Border Patrol agents.Their eyes dulled by the never-ending human flood, their skin numbed to the inhumanity of humanity, their minds held hostage to the rhetoric of right and wrong dancing like firelight on the chimera of black-letter law.
You muster your courage, which is no longer courage but the rawness of life that has nothing left to lose. You say in Spanish to the Spanish-speaking officer, “I am here to seek asylum. They will kill me if I go back. I need help.”
They take your Spanish words, write them down in English, and ask you to sign saying they are true. You do, even though you have no way of knowing what they have written other than what they tell you.
Your state of perpetual translation has begun.
Then, they shackle your ankles and your wrists and take you to a small room with others similarly bound. In the morning, the lot of you are put into a van and driven north past ranch lands and struggling family farms and bedroom communities and metropolitan centers and dusty towns and back out again into the middle of nowhere.
When the van stops and its doors open you see it—the Eloy Detention Facility—a grotesque mirage writhing up from the barren desert floor.
A “refugee” is any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. See 1951 United Nations Refugee Convention, as amended by 1967 United Nations Protocol on the Status of Refugees.
All signatory nations to the Convention and Protocol are required to protect refugees who are on their territory. See id.
Over one-hundred nation-states have signed the Convention and Protocol including the United States of America. Id.
The drive from Tucson to Eloy is bleak, especially in a summer when the rains are late in coming and the last time water fell from the sky was many months ago. The Sonoran Desert has been settling into the strata of my body—tissue, muscle, organs, bones—since my parents brought me to it at age three, and right now every cell is singing with the knowledge that something is amiss. Heat, I am used to. The sun pulsing down on me and radiating through my extremities, I revel in. But this is not normal.
The words climate change reverberate through my skull even as I chase apocalyptic thoughts into the corners of my mind. I try not to think about the backyard rainwater-harvesting cisterns, giant steel culverts repurposed, plumbed, and painted purple, that have stood empty for over a month. I try not to panic when I see the typically hardy native vegetation surrounding the house—prickly pear, ocotillo, cholla—turning a sallow yellow with skins wrinkling like raisins.
When I wandered into law school at twenty-one, I didn’t know anything. I knew no lawyers, I had never worked in the legal field, and my only notions of what the law was were based on vague ideas about justice and rights and equality. I was drawn to this particular triumvirate because I grew up a daughter of immigrants, a misfit, always on the margins of categories.
The interstate shoots past the last vestiges of urban sprawl and I breathe easier seeing the mountains in the distance. These ancient jagged swells of earth have kept me anchored to the southwest despite dreams of forests and trees and fireflies that have seduced me since childhood.
My attention darts from the monotony of asphalt road to Picacho Peak, which cuts a bold figure into endless stretches of cloudless blue.This towering red rock formation, almost half-way between Tucson and Phoenix, was the sight of the last and westernmost civil war battle that wasn’t really a battle at all but a skirmish between straggling union troops and a rag-tag band of confederate soldiers, neither of whom knew the war was over when they exchanged harmless canon fire. Still, enthusiasts stage a re-enactment there every year in March replete with true-to-life encampments, period costumes, real and replica weapons, and all manner of old-timey souvenirs for sale. I went there once, back in the early days of my marriage when my partner, who has an interest in civil war history, and I did everything together. I remember the sensation of feeling trapped in a time warp as clearly as I recall being the only brown person there.
Whispers of law school drifted into my consciousness after I read the story of a Togolese teenager who fled forced female genital cutting in her home country to seek asylum in the United States. Her case, In Re Kasinga, is the mother of gender-based asylum law in this country, and was the first time a court recognized gender-based persecution as a basis for claiming refugee status under the United Nations Refugee Convention and Protocol. The year after Kasinga’s fate was decided, I went to law school believing, perhaps naively, that I’d learn how to fight for women in similar dire situations.
I peel off the interstate, turning away from Picacho and east onto highway 87. It’s a straight line that skirts the edge of Eloy to the north—a town of 16,000 that boasts as its largest employer the Corrections Corporation of America, recently rebranded as CoreCivic after protests over treatment of detainees—and rows of cotton fields to the south. There are no blooms on the scrubby, knee-high plants right now but come fall, heralded by the faintest hint of cool at dawn and dusk, they’ll erupt into a sea of white cream puffs.
High speeds and country roads go hand in hand. Pickup trucks and semis zoom by leaving clouds of dust in their wake but I take my time letting the hopelessness of the landscape sink into my pores. I think I am preparing myself but I have no idea. When the massive concrete structures enmeshed in barbed wire come into view everything else recedes—the distant houses, the fields, even the desert, which has been bladed clean so that nary a creosote bush nor a stray palo verde adorn the hundreds of square dirt miles of sea in which the CoreCivic compounds float.
Turns out, I never did help women like Kasinga. When I tried to pursue public interest work, I was rebuked or ignored by turf-hungry professors and lawyers who had capitulated to the scarcity-of-resources mentality that keeps Others out. So I let the strong current of normative legal culture push me in other directions—a prestigious supreme court clerkship, a law firm job—where at least I was fairly compensated for my intellectual labor.
Before my weekly trips to this land where nothing lives, I didn’t know that there are actually several detention facilities out here. Some, like the Saguaro Correctional Center, is contracted by the State of Hawai’i and houses most of its male prison population. Others, like the Eloy Detention Facility, is contracted by the federal government to hold documented and undocumented immigrants. And also, female asylum seekers.
The last cluster of blocky buildings just off Hanna Road is my destination. An innocuous sign stating “CoreCivic” and flanked by an American flag stands at the head of the parking lot, the attorney and visitor section of which is merely an extension of the dirt. I park my car facing in Picacho’s direction and although I can’t see it anymore, its hidden presence is a talisman.
As a private-sector lawyer, I gravitated towards work in which I found meaning. Representing public schools, pro bono cases for people who could not pay, litigating against the state legislature when it refused to fund English language learner students (aka children of immigrants). But it wasn’t enough and the dread of the unfulfilled began sucking at my skin, rumbling in my bowels, and rising in my throat. I thought I might find an antidote in becoming a mother. I decided to get pregnant. I birthed a dying baby. I tumbled into madness/motherhood. I spent years clawing/writing my way out of an abyss that bequeathed unsought gifts.
My black-dressed figure—it doesn’t feel right to wear color here—cuts through the hot stale air to a protracted pathway that’s a series of heavy, maximum-security, prison doors barricaded by electrical barbed wire fencing encircled in razor wire. Outside each door is a buzzer and intercom panel and hidden camera. Sometimes I’m let in right away, other times I wait in the heat for several minutes tasting earth in an errant breeze. Someone has planted hot-pink bougainvilleas along the walkway but instead of having a cheering effect, they only add to the feeling of being in a dystopian novel.
Inside, I slip on my sweater, because although it’s well over one-hundred degrees Fahrenheit outside, the facility’s temperatures approximate a meat locker. I’ve also put on a watch for the first time in years because purses and electronic devices, including phones and computers, are strictly prohibited and must be left in rusty metal lockers that teleport me to painful high school memories. I stow away my contraband, retaining only my lined legal pads, pens, and accordion-like expando files. I take off my shoes and place them, along with the rest of my stuff, into a bin that slides on a conveyer belt into an x-ray machine while I walk through a human-sized one. The guard asks me why I’ve come and I say I’m an attorney. He asks for identification and I hand over my driver’s license and state bar card. The latter has a newly-minted sheen to it, having arrived in the mail only a few days ago.
The decision to re-activate my license to practice law came on the heals of the current administration’s calculated attacks on immigrants and communities like mine, which contain inextricable links between documented and undocumented human beings. When the director of my alma mater’s immigration law clinic asked me to take a specific pro bono asylum case—one that was difficult not only due to the horrific facts involved but also because, in the two decades since In Re Kasinga was decided, courts have severely limited the ways in which asylum is available to women—a current ran through my fascia, resurrecting a part of me I thought had withered a long time ago.
Once on the other side, I’m told I’ll need a guard to escort me back to the court clerk’s office. While I wait, I study four prominent photographs lining the front wall. CoreCivic’s CEO, CFO, President and Warden. All white. All men. All wearing suits and self-satisfied grins.
A somber-faced young woman arrives and motions for me to follow her. She, like most of the other guards, appears to be in her twenties and Hispanic, and tells me when I ask that she has lived her entire life in this area. CoreCivic is the highest paying employer in these parts and only requires a high school diploma or GED equivalent. My escort could not find a similar paying job in the depressed economies of Eloy and its surrounding towns. And even if she could make the trek to Phoenix or Tucson, she’d face much stiffer competition finding a comparable job in those large university cities.
We walk down the maze of interior hallways painted with American flags and slogans praising CoreCivic’s values and high performance standards. It is a building that not only houses detainees, but also government offices—an entire immigration court, judges’ chambers, ICE (Immigration and Customs Enforcement) attorney offices, and the clerk of the court where all official documents are filed and maintained. We turn the corner and enter a tiny room with a window to interact with the clerk’s office. There is another photograph on the wall in here. This one I recognize—it’s Attorney General Jeff Sessions. The thinly-camouflaged conflagration of public function and private enterprise is complete.
I retrieve my client’s file and sit down to read it entombed in a for-profit corporation masquerading as a government that Lincoln aspirationally said was of the people, by the people, for the people.
In order to qualify for asylum in the United States, a person must prove: 1) a well-founded fear of persecution; 2) on account of race, religion, nationality, membership in a particular social group, or political opinion; 3) that is perpetuated by the government or an entity the government cannot or will not control. See Immigration and Nationality Act § 101(a)(42)(A).
The Board of Immigration Appeals Court has defined “membership in a particular social group” to mean groups of people who share a “common immutable characteristic.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).
According to the Board’s recent decisions, gender, alone, likely will not constitute a particular social group. See e.g., Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). The Board has stated that a social group must have clear boundaries and “not be amorphous, overbroad, diffuse, or subjective.” Id. at 239. Furthermore, it is “critical that the terms used to describe the group have commonly accepted definitions in the society of which the group is a part.” Id.
You were only a girl—with girl flesh and girl blood and girl parts—when they took you away from everything you knew and everything you loved. Your country could not would not will not stop them from doing this to you and other girls like you over and over again.
But you got away. You escaped. You ran like hell.
And then you were put in an American prison like a criminal even though you’ve never committed a crime and are not even accused of one.
You wait for mercy. You pray for a miracle.
But the judges in Eloy, I am told, never let anyone out except to send them back. That is to say, they only hand out death sentences here.
Armed with these facts, I walk to meet you.
Shefali Desai is a child of the Sonoran Desert, daughter of Indian immigrants, mother of sons, lover of the earth, and a fighter/writer/lawyer. She has been a Rhodes Scholarship finalist, Arizona Supreme Court law clerk, and VONA fellow. Her book-length manuscript was selected by Lidia Yuknavitch as a finalist in the 2016 Kore Press Memoir Competition, and her work has been published widely including in Ms. Magazine, the UCLA Women’s Law Journal, Kartika Review, and the anthology This Bridge We Call Home.
Shefali currently is co-authoring a legal paper on federal and state regulatory power over so-called sanctuary cities, litigating an asylum case, and finalizing a hybrid memoir. Her six-part series for Corporeal Clamor titled “ASYLUM” is a blended legal/personal/lyric essay that layers the law with lived experience. Shefali lives in the painted hills of Tucson with her partner and two sons.