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A Judge Recounts the Many Blessings and Heavy Lessons of Hearing Immigration Asylum Cases
By SUSAN L. YARBROUGH
iUniverse, Inc.Copyright © 2013 Susan L. Yarbrough
All rights reserved.
Persecution on Account of Race: Esteban Marcial Mosqueda of Cuba
The island now called Cuba was discovered by Christopher Columbus during his voyage to the New World in 1492. By 1514 the Spanish Empire had colonized the island after brutal suppression and massacres of the indigenous people, who were understandably reluctant to work for their new European masters. In the absence of a ready and willing pool of laborers, the Spanish eventually began importing slaves from Africa to work in the burgeoning and profitable tobacco, sugar cane, and coal-mining industries—a practice that continued until slavery was abolished in Cuba in 1886.
Except for a short period in the eighteenth century when it was held by Great Britain, Cuba was ruled by Spanish governors until it gained independence in 1902 following four years of United States occupation at the end of the Spanish-American War in 1898. For the next four decades, Cuba democratically elected a series of presidents, many of whom proved ineffective in dealing with the corruption that arose in response to increased prosperity. After World War II, Cuba enjoyed a boom in its economy, health services, and educational opportunities, but many of these gains were undermined by the government of Fulgencio Batista, who had been elected president in 1953.
On January 1, 1959, under pressure from the United States and a growing number of opposition citizen and guerrilla groups within Cuba, Batista fled the country. Backed by his own followers as well as other rebel armies and groups that had been gathering with him in the mountains, Fidel Castro stepped into the void. Six days later, the United States recognized the Castro government and sent a new ambassador to the island.
Within months of seizing power, however, Castro purged all of his political opponents (and even some of his supporters), took over the media and schools, and instituted a one-party Communist system that brooked no opposition or questions. By the summer of 1959, the stunned Eisenhower administration began planning the ouster of Fidel Castro, and relations between the two countries deteriorated rapidly as it became apparent from his public statements that the new dictator wanted nothing to do with the United States.
Soon after his inauguration in January 1961, President John F. Kennedy authorized the notorious Bay of Pigs invasion in which a US-trained force of approximately 1,300 Cuban exiles invaded the southern coast of Cuba with the intention of overthrowing the Castro government. Castro's armed forces defeated the invaders within three days.
In October 1962, in what became known as the Cuban Missile Crisis, the United States successfully cordoned off international waters in order to prevent the Soviet Union from sending into Cuba more missiles than those previously discovered in U-2 reconnaissance photos. Soviet economic aid, however, continued to pour into Cuba until the final collapse of the Soviet Union in 1991.
Left largely unchecked either by any internal voice of reason or by the Soviet Union, the Communist Party of Fidel Castro began imprisoning moderates and members of the middle class in forced labor camps soon after it came to power. Many Cubans of European descent who could afford to leave the island did so, and as the economy declined, unemployment soared.
In 1972, the Castro government instituted an anti-loafing law that made it a crime to be a working-age male without a job. Those caught not working could either go to jail or go fight in Soviet-backed wars on the African continent in Angola, Algeria, Congo, and Ethiopia.
While slavery had been abolished in Cuba in 1886, prejudice had not, and although the black population of Cuba increased enormously over the next seventy-five years, it remained at the bottom of the social and job structure and was viewed as inferior by those of European descent who controlled the government and the economy. Additionally, as the United States became more invested in Cuba politically and economically, it tacitly endorsed the ideological and attitudinal apartheid on the island and did as little to promote racial equality there as it did within its own borders.
By the time of the Castro revolution in 1959, an estimated 60 to 70 percent of the Cuban population was of African or mixed African heritage and thus obviously outnumbered those who were of strictly Spanish or European descent. Initially, many Afro-Cubans supported the revolution, believing its egalitarian promises of land reform, better education, and adequate health care and social services. And even though matters did seem to improve superficially in the early years of the regime, Castro made it very clear that the primary goal of his revolution was to eliminate distinctions in class rather than in race.
As Euro-Cubans and their money fled postrevolutionary Cuba, they left behind a crumbling economy, an iron-fisted dictator, and a majority Afro-Cuban underclass that had little money, few resources, no power, and absolutely no avenue for the redress of their grievances. One of the repressive tools of the Castro government was the formation of Committees for the Defense of the Revolution (CDRs) that were (and still are) block-watch groups charged with reporting any allegedly counterrevolutionary speech or activity to the government.
In order to survive, many Afro-Cubans resorted to buying and selling goods on the black market, and some would occasionally question obvious racial disparities in housing or employment. Both of these activities, along with penalties for violating the anti-loafing law, caused the imprisonment of Afro-Cubans in numbers far disproportionate to even their majority status.
In early April 1980, starting with a small group and eventually swelling to 10,000 citizens, Cubans seeking asylum from their own government stormed the Peruvian embassy in Havana. In response, Fidel Castro announced that any Cuban who wished to leave the country could do so through the port of Mariel. From April 15 to the end of October, there was a mass exodus of approximately 125,000 Cubans, most of whom traveled by boats and rafts to the United States. The Cuban government also saw fit to release many Cubans who were in prisons and mental hospitals and to direct or transport them to the port. A large percentage of those released from institutions were Afro-Cubans. Castro labeled all who departed Cuba "undesirables" and "scum."
As a matter of general policy, the United States government did not seek to deport or repatriate anyone who had fled postrevolutionary Cuba unless he or she had been convicted of a crime in that country.
Esteban Marcial Mosqueda entered the courtroom for his asylum hearing in July 1991 with an able attorney. He had not had one when he first appeared before me a year earlier at a master calendar, and when I picked up his file to start preparations a few days before the hearing, I was pleased to see that an experienced lawyer had taken his case pro bono.
Attorneys who specialize in immigration law seldom enter that area of practice to grow wealthy or famous, and many of them are good-hearted but overworked individuals who grew up in immigrant families and want to honor that part of their heritage. When I first started working as a judge, I would sometimes try to cajole a solo practitioner into taking a meritorious case for free, appealing to his or her moral (if not legal) obligation under the code of ethics to do some pro bono work. But I soon stopped doing that, because I had doubts about whether judicial ethics permitted my predetermining which cases could be developed into winners with the assistance of counsel and which did not warrant an attorney's efforts.
Mr. Marcial was in deportation proceedings because he had been convicted in his country of the crime of loafing. Thus, unlike noncriminal Cubans, he was ineligible to pursue US residency a year after his arrival in the United States and was therefore required to seek asylum if he wished to remain here. His asylum application was clear and coherent, and it stated that the basis of his claim was persecution based on race.
In my almost four years on the bench, I had not heard a race-based asylum case, nor did I know much about Cuba other than what mainstream American media had reported since Castro came to power in 1959. During a brief period in the late 1970s when Cuba was temporarily open to American visitors, a few of my students at the University of Massachusetts had traveled there with a professor in the Afro-American Studies program, and I had heard from them only glowing reports about how the revolution had transformed all aspects of that country. So at a minimum, I looked forward to hearing Mr. Marcial's case not only because he had a skilled attorney but also because it would be another learning experience for me.
I remembered Mr. Marcial from his first court appearance a year earlier because he was so black. When I had worked for the New York Legal Aid Society, several of my clients had been black Puerto Ricans, so the concept of black Latinos was not new to me. Mr. Marcial, however, was the darkest Latino I had ever seen, and if I had not known he was Cuban, I would have thought that he was from Africa.
Unlike many asylum applicants from Central America, he was not deferential, although he was polite. I was aware that many Cubans have at least high school educations and are proud of their command of the Spanish language, and I had noticed that the original handwritten affidavit accompanying Mr. Marcial's asylum application—even though it had later been translated and word-processed by his attorney—was literate in its own right.
There were several pieces of supporting documentation, each of which pointed to ongoing racism and racial discrimination in postrevolutionary Cuba. Under United States asylum law, however, not every instance of discrimination or unfair treatment is viewed as persecution, and I was therefore especially interested in how this case might unfold. It began in this matter-of-fact way:
I am Esteban Marcial Mosqueda, the only son of Ana Gutierrez Marcial and Félix Sotolongo Mosqueda. I was born in Havana, country of Cuba, on June 4, 1960, and I completed high school in 1978. My father died that summer. He was a porter. My mother was a maid. She died last year, and I was not there to bury her. I was still an infant when the revolution came, so I do not remember it. But my mother and my father talked about it often and told me there was dancing in the streets. Todos los negros [all the black people] thought their lives would change.
In school I learned about Fidel and what he did for us, and even though my grades were good, my classmates laughed at me because I am so dark. One of them called me a mambí [a somewhat derogatory reference to black guerrilla fighters who rebelled against the Spanish Empire in the nineteenth century], and when I told this to my father, he swore and told me to be strong. I had hoped to go to university, but when he died, I knew I had to work.
I took the paper with my grades and started asking everywhere for jobs. My mother was still working, but she had problems with her heart. I lived with her in an apartment smaller than this courtroom. Many things were wrong with it. I wanted to make money to fix it up and let her quit her job. I walked around the city every day and went in bakeries and butcher shops asking for work. One of the owners said he would never let someone as black as me work for him. Then I tried a few small stores that sell used clothing, but no one had a job for me.
By October, I was desperate. I saw my mother was not well, and I made an appointment for her at the clinic. They told her to come back in six months. I begged for them to see her sooner, but they reported me to the CDR in my neighborhood for making elitist demands. A few days later I asked for a job cutting sugar cane in the fields, but the boss said he had heard I was a troublemaker, so I gave up hope.
I knew someone who did illegal things. He would go into the countryside and buy eggs from a peasant for a very low price and then sell them on the black market for a profit. The thought of doing things like this scared me, but it was all I had. So I worked for him and made a few pesos to help my mother.
In May of the next year , I was walking home along a busy street, and the police jumped out at me. They demanded my identity card, and I showed it to them. They asked me where I worked, but I did not want to get my friend in trouble, so I told them I was looking for a job. They told me I was a criminal because I did not have a job, and they took me to the police station and held me for six hours and called me mancha el negro [stained black man]. These were Fidel's police!
I begged them to let me go home to my mother, and they finally pushed me out the door. After this, I was too scared to go back to work with my friend, so I stayed at home during the day and went out at night looking for food. I thought if I could find some, my mother would not have to buy it for us. I looked in garbage cans for many months and sometimes found part of a banana or some chicken pieces but never very much. Así es. That's the way it is.
Everywhere you go in Cuba there are signs that say No hay racismo aquí [There is no racism here] and Somos uno [We are one]. These are lies. I kept looking for food at night, and in January [now 1980] I fell asleep in a doorway just before dawn. I woke up when the police kicked me, and once again they took me to jail. They called me a vagabundo [bum] and looked up my file. This was the second time, and they knew it. I was shaking.
They told me I could join the army and go to Angola to fight with other negros, or I could go to prison. This was not a hard choice for me. Go somewhere and die, or stay here and hope to see my mother again? I chose prison, and they laughed and said I would be sorry. They put me in jail and gave me a trial. I was convicted of violating the law against being unemployed, and my sentence was five years in prison.
A few weeks later, they took me from the jail in Havana to Melena II [a prison in Havana province]. Nobody here believes me, but there are almost a thousand prisons in my country. [Many observers of Cuba have described the prison system of that small island as a gulag consisting of hundreds of prisons.] I was thrown into a cell with other negros, and the sergeant could not stop staring at me. He frightened me with his looks.
There were no beds and no sheets, so I slept on the floor with the other men. The toilet was a hole in the floor, and it overflowed every day. At night the rats and roaches came through it, and sometimes a snake. Our food was beans once a day, and it was always filled with insects and worms. We got a pail of water every other day; it was for drinking, but it was so dirty it made us sick.
After I had been there for a week, the sergeant called for me one night. I wondered if I was being released to go to my mother, but that was not it. In his private office, the sergeant told me he had never seen a Cuban so black, and he wanted to know if my penis was as black as my face. While he pointed his gun at me, I let my pants fall. He picked up my private parts and held them in his hands and said, Hola pendejo negro, cómo está? Hello, black dumbass. How are you? After that he squeezed my testicles, tied me to a chair, and said he had some surgery to perform.
For several hours after that, he pulled out all my pubic hairs with tweezers, laughing and saying he was soon to be transferred to another prison and he wanted a souvenir of the blackest Cuban he had ever seen. When it was over, he poured liquor on my crotch, told me to get my clothes, and shoved me all the way back to my cell. I tried to tell the other men what had happened, but I could not speak.
I don't remember the next days and weeks, but I must have stayed in the cell. After I was myself again, I thought of my mother all the time and wondered if I could escape. The others told me I would be killed if I tried. My father came to me in dreams at night and told me to be strong.
Many months and many guards went by. All of them would stare at me, and most of them would call me negro azul [bluish-black negro, referring to the deep hue of his skin] and have a look at my penis. I was very thin by then, and it was easy for them to pull down my pants.
On my twentieth birthday, I did not want to live anymore, and I decided to go on a hunger strike. My companions told me to wait, because they had heard that things were loosening up on the outside and Fidel was letting Yanquis in to look around and letting some Cubans leave. But things were so bad for us inside that I started refusing the crap they gave us to eat.
But after a week, there was a miracle. The sergeant woke us up one night and said that if we wanted to leave Cuba, there were buses waiting to take us to the port of Mariel. We all began to dance and cry and let ourselves be shoved and kicked onto the bus. The guards told us to shut up, so we rode in silence.
Excerpted from BENCH-PRESSED by SUSAN L. YARBROUGH. Copyright © 2013 Susan L. Yarbrough. Excerpted by permission of iUniverse, Inc..
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