Keeping Families Together

Before Ofelia Calderón can describe what it’s like practicing immigration law during the second Trump term, she pulls over at a rest stop on I-95. She’s running late, still driving the 165 miles back to Fairfax from Farmville Detention Center, where she met with a client stuck in jail without bond. Like so many of her clients of late, she says, he was arrested with no criminal charges, picked up by ICE on his way to work. 

It’s hard not to feel pessimistic, Calderón notes, but she embraces the rare bright spots when they come. “It was hard-fought,” she says later of the case, “but I won. He’s now home with his three children, and I’m thankful.”

So how has her practice changed? She starts by stating the obvious: She’s spending more time at jails.

“For my clients, it’s detention at any time all the time, and that’s kind of terrifying,” she says. “Many of my clients have been detained for no reason, and that is new. There’s a real sense of urgency and fear when people are getting arrested in the middle of the street by random people in black masks. In very few cases that I’m coming into contact with is there actually a criminal issue.”

And starting last September, the vast majority of those detained for no criminal reason have had to await their fate in jail—a result of the Board of Immigration Appeals (BIA) decision in Matter of Yajure Hurtado that eliminated immigration judges’ ability to grant bond in most cases.

“It pretty much says nobody is eligible, so they’re picking up all these people and they can’t get bond,” she says. “The immigration judges are denying bond, but what they’re really denying is your ability to even ask for bond.”

In February, Central District of California Judge Sunshine S. Sykes vacated the BIA bond restrictions, meaning detainees would be entitled to bond hearings; however, the U.S. Court of Appeals for the Ninth Circuit stayed Judge Sykes’ orders the next month, pending the government’s appeal. As this publication went to press, Sykes’ order ensuring bond hearings applied only in the Central District of California.

Elsewhere, the only way for those detained to seek release while awaiting a ruling was to file a habeas petition in federal court, which Calderón says judges in the U.S. District Court for the Eastern District of Virginia have been granting, including for three of her recent clients. But that expense is too high for many.

“I’ve never seen so many people on the detained docket give up as I’m seeing now,” she says. “It makes us sad. Not that we weren’t sad before.”

She says her firm is filing these habeas petitions “on the cheap, to the best of our ability,” but she knows it’s still expensive.

“There’s a lot of bad news that’s been given out lately,” Calderón says. “I had a conversation recently with another colleague at a conference, and he felt that some younger associates were giving up, and he didn’t like that. I understand that, but I also understand that sometimes, when you’re telling someone your case is going to cost $15,000 and your likelihood of winning is less than 20%, that $15,000 is a lot of money for a family that’s about to lose their primary breadwinner. I don’t think telling someone that I’m going to win their case when I’m not sure is being the best lawyer. I think that’s the hardest thing: When do you tell a client to give up? And are you advocating for the client when you tell the client to give up? That’s hard.”

Sometimes, clients’ fear and frustration manifests as anger.

“It’s hard for clients to understand that immigration lawyers cannot fix all the problems,” she says. “On the bond thing, for years people have gotten bonds, right? And now I’m telling you that you can’t.”

The bond issue is just one example of what Calderón describes as piecemeal “systematic and systemic” changes to immigration law, mostly under the second Trump administration, though she notes that asylum claims were already difficult under Biden’s presidency with the 2023 Circumvention of Lawful Pathways rule that made immigrants ineligible for asylum if they didn’t cross the border by making an appointment on the CBP (Customs and Border Protection) One app. Most people, she says, didn’t know about or couldn’t access this app. 

Other recent changes include a Board of Immigration Appeals decision that raised the standard for proving “exceptional, extremely unusual hardship” for family members of U.S. citizens, as well as an end to the deferred action policy protecting vulnerable immigrant juveniles from deportation while they wait through green card backlogs from visa limits. (In November, a federal judge issued a stay, temporarily reinstating protections and the ability for those juveniles to obtain work permits.) 

“There’s a lot of big and small changes that, combined, are really dismantling any protections that our system previously offered, and it wasn’t like it was great before,” she says. “It’s harder for lawyers to answer questions and to speculate about the future because there are changes that happen weekly.”

Calderón can’t know, for instance, how newly appointed immigration judges will decide cases.

“They fired so many immigration judges this year, and they replaced them with these new temporary JAGs,” she says. “They don’t have any immigration experience at all. … I suspect they have marching orders, but again, we don’t know. I haven’t had a case with a new judge yet.”

Calderón still has successes—like the clients released on habeas—and recent wins for lawful permanent resident clients and even some asylum seekers. In one instance, however, she filed an emergency motion to re-open a client’s asylum case and it was granted, but he was deported to Colombia in the middle of the night anyway. 

“There’s a lot of that,” she says.

In addition to her busy private practice, Calderón is providing more pro bono consultations through the American Immigration Lawyers Association than ever.

“The Washington, D.C., chapter has 1,400 members,” she says. “You would think that would mean that I would get one [case] every six months, but I get one sometimes twice a week. I’ve always taken at least one pro bono case per year from each of the nonprofits that ask, but now obviously there is a greater need and it’s harder to do that—especially because we’re also overwhelmed with the clients that we have. Everyone is overwhelmed.”

Calderón comes from an immigrant family herself—from Mexico on her father’s side several generations back. Her mom is Taiwanese. Calderón earned a bachelor’s degree in political science with a Latin American focus from the University of Maryland and started her career with Amnesty International. During law school at the University of San Francisco, she chose immigration as a practice that would allow her to be in court and help people.

Lately, she’s been reminding herself of the way her son, when he was small, would respond when someone asked what his mom did.

“My son would say, ‘My mom keeps families together,’ and I think that’s a pretty thoughtful way of describing the work that immigration lawyers do,” she says.

It’s just harder than it used to be.

In Need of Help

The following nonprofit organizations, Calderón says, provide legal and other resources to immigrant families in Virginia.

• Just Neighbors justneighbors.org
• Ayuda ayuda.com
• Amica Center for Immigrant Rights amicacenter.org
• Legal Aid Justice Center justice4all.org
• Catholic Charities of the Archdiocese of Washington catholiccharitiesdc.org