Published October 16, 2011
PHILADELPHIA – Derrick Cotterel was a farmworker who came to the United States from Jamaica, picking citrus in Florida and apples in West Virginia for 10 years, before a pay dispute with a landscaping employer led to his arrest last year on robbery charges.
Given his long-expired visa, the arrest landed Cotterel in immigration custody in York, Pa. But judges there struggled for nearly a year to understand his request for political asylum.
Cotterel, 42, speaks a Jamaican patois, or Creole, that might alone be difficult for Americans to grasp. But his speech is further compromised by a severe stutter that makes him nearly impossible to understand.
Nor can he read or write. So many of his thoughts remain trapped inside of him.
"Me can, me can, me can ... " Cotterel once stammered to an immigration judge charged with deciding his case. "I said me can't say what (indiscernible). Please, sir, I say I can't tell you what I want to tell you about."
Unlike criminal defendants, immigration detainees like Cotterel have no right to free counsel. So Cotterel sat in the York County Prison, where about 700 detained immigrants are housed with 1,700 convicted or suspected criminals, from July 2010 until May while frustrated judges continued his bail and asylum hearings.
One judge tried to toss him only yes-or-no questions about his political asylum claim, and asked Cotterel to raise his left or right hand, depending on his response.
On May 18, Judge Andrew Arthur tried another tack. He asked two fellow inmates from Jamaica to translate. That worked to a point, though Arthur was not always sure whose answer was being relayed to him.
One inmate-translator told the judge that police had failed to investigate the killing of Cotterel's brother "because of the political activity."
"Did he say that or did you say that?" Arthur asked.
York immigration lawyer Craig R. Shagin is frequently asked to take cases pro bono, but can only take a few, and chooses those he thinks have merit. He recently agreed to help Cotterel — who lost his asylum bid — with his appeal. He believes his client could be killed if he returns to Jamaica.
"These types of cases, you basically have death-penalty consequences while employing traffic-court procedures. It's very frightening," Shagin said.
Immigrants have every right to hire counsel or find pro bono lawyers to take their cases, noted spokeswoman Elaine Komis of the U.S. Executive Office for Immigration Review. And immigrant aid groups get government funding to inform detainees of their rights.
But few have the money to hire lawyers, and there are a finite number of immigration lawyers near York, which is two hours west of Philadelphia. So 84 percent of detained immigrants go it alone, according to Angela Eveler, director of the Pennsylvania Immigration Resource Center in York.
"The need for legal services in the immigration detention system far outweighs the capacity of nonprofit legal services organizations. It has become a legal and humanitarian crisis," Eveler said.
Judge Arthur, who presided over most of Cotterel's hearings, had called the American Civil Liberties Union on May 10 — as he delayed another hearing — to ask them to represent him.
The ACLU has a single immigration lawyer in York, Valerie Burch, who works out of her home. The ACLU agreed to file a friend-of-the-court brief that argues for the government to provide lawyers to disabled immigrants, based on fairness and disability law. The group has a similar class-action lawsuit pending in California that seeks to guarantee lawyers for mentally ill immigrants.
In Cotterel's case, they also want the government to provide a speech professional to determine whether an electronic device or other tools could help him communicate to the court.
"Mr. Cotterel found himself ordered removed from the United States at a hearing that he could not meaningfully participate in," the ACLU wrote.
Cotterel, a brawny man, has supported himself mostly as a farmer and fisherman — jobs that don't require communication skills. In Jamaica, he lived with his brother for a time, until the brother was killed.
"He told me he never gotten government benefits. He has always supported himself," Burch said. "He takes great pride in that."
After exhausting exchanges between Cotterel, Arthur and the two inmate-translators on May 18, Cotterel disclosed that two brothers had been killed in what he deemed politically fueled violence. His family belonged to the Peoples' National Party, and one brother handed out government contracts, he said.
Cotterel said he himself was injured and scarred in a 1998 machete attack. He said he fears being killed.
The Immigration and Customs Enforcement lawyer, Jeffrey T. Bubier, was sympathetic, according to a hearing transcript.
"If I was him, I would be afraid of going back to Jamaica too, but I don't think he's established that more likely than not he's going to be persecuted on account of any political opinions," Bubier argued, citing the standard for asylum relief. "And (he) certainly hasn't established that the government of Jamaica is going to torture him."
Arthur concluded that Cotterel had testified credibly. But he was unconvinced of the political violence claim, and denied the asylum bid.
However, the judge seemed unsure of whether the "translators" amounted to a proper accommodation, and agreed to certify an appeal to the Bureau of Immigration Appeals.
This past week, ICE lawyers notified Shagin that they will not oppose the motion for another asylum hearing. The Bureau of Immigration Appeals will ultimately make that call.
Arthur had set bail at $1,500, but Cotterel's friends in Martinsburg, W.Va., have so far scraped together just $900.
And now, there's another hiccup to overcome: Cotterel was recently moved to state custody in West Virginia because he missed a court date in the robbery case while he was incarcerated in York. He has no prior convictions.
According to Shagin, the case stems from an argument that ensued when the landscaper, who was also Cotterel's landlord, came to the apartment and said he wasn't going to pay him.
"You take for granted how valuable the ability to speak is until you don't have it," Shagin said. "It's particularly bad if you don't have it and you're being accused. You're unable to give your side of the story."
Cotterel has now spent 15 months behind bars.
"You can imagine how hard it is to be in a criminal prison, and having a handicap," Shagin said. "It makes you very vulnerable."