Last Monday, Memorial Day, my mind was fixated on the asylum case I would present two days later — my first. It had been a rush of chutzpah three years earlier that brought me to this moment. In the face of the ubiquitous misery at the border in 2018, I had had the urge to do something. I discovered a local non-profit law firm that was training volunteer lawyers to take asylum cases they had vetted but did not have enough staff to handle. Although daunting, I figured that if they believed a lawyer like me, who had never done a trial and knew next to nothing about immigration law was up to the task, who was I to disagree? Their rationale was “it’s better than nothing,” and now the fate of a family was riding on that calculation.
Getting started, we had focused on the tasks at hand. We signed the the forms that said I was their pro bono lawyer, met for interviews, drafted their experiences into declarations fitting the framework of asylum law, and submitted the proper forms, all along squelching my fear and doubt about my ability to ably represent them in court the following summer, and trying to project confidence for their benefit.
Three months before their scheduled court date, it was postponed nearly two years to the spring of 2021. My heart sank — where some might expect them to welcome a delay, they longed for certainty. And we felt they had a winnable case. I consulted with my young mentor, who advised that the law could change in two year’s time, so I should table further work on the case until we were closer to the new hearing date. But the case and the family remained on my mind, my nerves building at low volume.
When it was finally time to resume our preparations, the case was postponed again, but this time only three months, to the summer of 2021. We got to work. I would need to write a brief explaining why their situation merited relief under the law, and prepare them to testify.
The closer we got to the court date, the higher my anxiety. I consulted my ever-patient mentor, now approaching a maternity leave, with frequent questions. As I worked on the brief, which would also be the basis for an appeal if we should lose (no pressure), I woke up every morning thinking about it, consumed with the fear of failing. The only thing that resolved my fretting over the brief was filing it. It was not perfect, but it was out of my hands.
Now it was time to prepare my clients to testify. I recalled that when our foster daughter had been preparing for her asylum case, her lawyers had scheduled several meetings to practice. I decided to do the same, though I was not sure exactly what to do during those meetings. Over zoom or facetime, we reviewed the questions I would ask them in court about the death threats to them and their children, the attacks and ambushes, their terror. I felt a rock in my stomach all day in anticipation of our afternoon and evening calls. Yet my burden was a grain of sand compared to what they carried, having to articulate their harrowing reasons for fleeing home fresh on their lips.
I had harbored a fantasy that when the government lawyer read my brief about their plight they would think, “Wow! Let them in! Request for asylum unopposed!” Of course, when I finally received the government attorney’s reply to my entreaties to discuss the case, her tone told me how naïve my hope had been. There would be a contested trial. I would have to go through with this.
Which brings us back to Memorial Day. The blooming spring and vaccine-engendered freedom inspired us to invite my parents, sister, niece and cousin for a small backyard barbeque. We ate hamburgers and hot dogs and played ping pong, exquisite activities after a year of quiet isolation. It helped to distract me from thinking about the last nervous day of what had become a three-year countdown to the asylum hearing.
I did not sleep well the night before the hearing. I stayed up late preparing, and in the morning my eyes popped open so early that I had time to do yoga breathing to settle myself down before leaving for court.
I checked the traffic app and left in time to arrive thirty minutes early. (To those who have known me long and well, this fact alone says everything about my mental state.) The months of worrying had motivated extreme preparation. I had arranged binders with evidence, briefs, relevant cases, direct testimony questions, and closing argument summary in my briefcase the night before. I had taken my one suit out of the closet and tried on my shoes to make sure everything still fit. I had identified a parking lot by the court and sent its address to my clients. I had transformed as many unknowns into knowns as I could think of.
Driving to the court, I recited aloud every question I wanted to ask my clients. I found a few better ways of asking them. I warmed up my voice and brain. This added to my sense of readiness. The time was here.
In front of the court, I waited for my clients to appear, impossible to imagine the nervousness they must be feeling. The stress of everything riding on this day. I cast my eyes toward the direction of the parking lot and saw a group that could be them, dressed as if for church. The children had to miss school, the parents had to miss work, but today was their moment, their chance to prove to a judge that they deserved the safety of America.
Before we entered the building, they asked me to take their picture. The kids protested, as kids do, but I agreed with the parents: This could be a day to remember in their family’s history. If everything went well.
Through security, up the elevator together, all with masks on, even the youngest, now five years old. She kept saying she was afraid of getting a vaccine and rubbing her arm; she thought this was a hospital and smiled with relief when I told her there were no doctors here. The eldest daughter would graduate from high school later that week. A party was planned for Friday. We hoped it would be a double celebration.
We were early enough that the courtroom door was locked. We waited. When it opened, I entered the well of the courtroom and took a seat at what I hoped was the correct table for the petitioner’s lawyer. I arranged my notebooks, laptop, and a yellow legal pad on the table within reach. The judge emerged, took her seat, and glanced at us before dialing into a “court call” system on a speaker phone. Here we go. She announced her presence, and asked who else was on the call. The government’s lawyer and the interpreter had both chosen to appear by phone, as Covid rules permitted. We wanted to be there in person. I wanted the judge to see this family. I wanted them to see me, to be able to reassure them as we proceeded. I wanted to be present in case of the unexpected.
I had not noticed two other people seated in the back of the courtroom, another lawyer and immigrant also expecting to present their case. The judge announced that she would proceed with his case first. He had been waiting for thirteen years.
So I piled up my notebooks and computer in one arm, and pulled my briefcase behind me into the hall with the other. My clients followed. Maybe his case would be quick, since it was only one person. Maybe we could start in an hour or two. Maybe we could continue after lunch. I was confident we would proceed.
An hour passed. I reviewed my questions and closing argument. Another hour passed. I gave the youngest child a pen and paper to draw with. One of her older siblings showed me some anime drawings she had done. “You could sell these,” I told her, and showed her Etsy. “I’m bored,” the five-year-old said, then danced down the hall.
At 10:30 a.m., the door to the courtroom opened, and the other lawyer waved to me, and then toward the courtroom. My presence was required.
I pulled my belongings in with me.
“Ms Diamond, we are not going to have time for your clients’ case today.”
The judge’s words hung in the air between us like a mist, despite the clear plastic partition that separated us. I did not speak, as if she might retract them if I did not acknowledge them. The one thing I had not prepared for.
The sinking feeling of not being able to control your destiny. The bargaining began – I asked, what if we stayed until afternoon? There was another case scheduled. What if they do not show up? The judge seemed to entertain this possibility, but the government’s lawyer’s disembodied voice on the speakerphone objected; there was a different government attorney for the afternoon calendar who was not prepared to oppose this case. The judge agreed; we would not proceed today.
The judge was kind, not gruff. She offered us the next closest day, five months away. Thanksgiving. She has another case scheduled that day, but only one, and our case is older so we will have priority. Someone else will be bumped.
I told my clients we would have to wait. Disbelief, then disappointment, then resignation. Making peace with what is. Later that afternoon when I checked in with them, I sensed that their voices were already lighter. Accepting the situation better than I could. Maybe it helped that this delay means there will be fewer unknowns when we return. Now they have seen the judge’s face, and the quality of light inside the courtroom, the placement of the witness chair where they will sit and tell her what happened and what they hope for.
Driving home past the beach, I thought of each wave pulling a billion grains of sand, tossing and displacing and depositing them somewhere new with each pull. The waves have no malice. The grains of sand no resentment. And this family, already displaced from where they had expected their lives to unfold, understands more than I do about adjusting expectations, flowing with the tide. I try to take my cue from them. We mark our calendars and take a breather. My body craves sleep. It will be days before the adrenaline drains from my body, before my breathing resets to normal.