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'In Here, Everyone Cries': A Jailed Immigrant's Two-Year Fight for Freedom

Virgilio Alvaro-Arcos has spent two years behind bars on the brink of deportation. A new team of public defenders is his only hope.


Virgilio Alvaro-Arcos

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Virgilio Alvaro-Arcos with his fiancée, Maria (left), and her daughters Daisy (right) and Azucena at Pier 39.

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Posing with the girls and Maria’s son, Anthony (right).

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Kissing at Fort Point.

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The deportation defenders: From left, attorneys Hayley Upshaw, Francisco Ugarte, Carla Gomez, and Jennifer Friedman of the San Francisco Public Defender’s Office’s Immigration Defense Unit.

Photo: Noah Berger

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Notes from Virgilio: Two of the letters sent home by Alvaro-Arcos from the West County Detention Facility in Richmond, where he has been held for two years while fighting deportation.

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Virgilio Alvaro-Arcos lay on a metal bunk in a jail cell in Richmond, California, with little to do but remember.

He felt his father, a poor man from a village in Chiapas, lashing his back with an extension cord. He saw the burns on his fingers from the tortilla fryer in the shop where, as a teenage runaway, he slept wedged in a pantry. He heard the shouts of “Monkey!” and “Go home!” in the streets of Tabasco and Mérida. He remembered being nearly 30 and thinking he had nothing left to lose, only to be robbed of most of his meager life savings—around $750—on his first attempt to cross the U.S. border. He felt the suffocating weight of bodies and hay piled atop him in a truck when he finally made it north. And another crush of humanity in a San Francisco studio shared with 31 other desperate men, where he paid $140 a month to sleep under a table.

But the more he remembered, the more the memories brightened. He recalled his work as a day laborer—hauling drywall, pruning hedges, sweeping floors— until he saved enough of his wages to rent a room in a shared apartment in the Mission. He thought back to meeting Maria Diaz, who also lived in the apartment, and how he’d watch DVDs with her then-eight-year-old daughter, Daisy. He remembered how his relationship with Maria deepened, and how he stepped in as a provider when she dumped her abusive boyfriend, who was later deported, leaving the mother of two pregnant and $10,000 in debt. It felt good to buy groceries and school supplies for Maria’s kids and to chip away at her bills. Later, he’d try to keep her son out of trouble, and walk her girls to school, and take the family on outings to Pier 39 and camping trips in Eureka.

The girls were 7 and 17 now and had long since begun calling him Dad. He and Maria had plans to marry later that month. Yet here he was, starting his second week in lockup at the West County Detention Facility, a medium-security jail sandwiched between the Richmond Country Club and San Pablo Bay. His fate seemed inescapable: After more than a decade in the United States, Virgilio feared he would be sent back to Mexico. He might never see his family again.

As worry crowded out the memories, the loudspeaker crackled. It barked a second time before he recognized his name. Virgilio shuffled out of his cell in orange sandals. Unimposing in stature, with a moon-shaped face and a shaved head, he wore a neon-green jumpsuit that screamed in the fluorescent light. In the hallway, a man wearing a crisp suit and light-brown loafers smiled and extended his hand, which Virgilio shook warily. They entered a small, bare-walled room and sat down in plastic chairs.

“I’m Francisco Ugarte with the San Francisco Public Defender’s Office, and I’m here to ask if I can represent you,” the man said in Spanish. “Your family called me.”

“I told them not to look for an attorney,” Virgilio told him. “I don’t have any money.”

“Don’t worry about that,” Ugarte said.

“Have you seen my file?”

Ugarte said he had. “This is going to be difficult, but I like a challenge.” The lawyer told Virgilio that he could accept deportation at any moment if jail proved to be too much.

“I just want to get back to my family,” Virgilio said, tears carving rivulets across his cheeks. “I love my daughters with everything I have. I want to stay and fight for them.”

“Then I’m here for you,” Ugarte said. “I’m going to fight for you, and I believe we can win.”


“I know I’m not perfect, but I know that I’m going to get out and I know that I’m in here for three people that I love and are worth fighting for. You taught me to love and to believe in love.” —Virgilio Alvaro-Arcos, in a letter to his family from jail

Francisco Ugarte stopped sorting cases into winners and losers a long time ago. It was probably a survival tactic. The first full-time immigration attorney in the San Francisco Public Defender’s Office, Ugarte takes cases that many private and even nonprofit lawyers often decline. On the front lines of the immigration wars, Ugarte fights for some of the country’s most disputed inhabitants, and the stakes couldn’t be any higher.

Every day, Immigration and Customs Enforcement (ICE) holds an average of 40,653 immigrants in hundreds of county jails, private prisons, and other facilities. Though the detainees aren’t serving criminal sentences, many remain locked up for weeks or months while their cases inch through the immigration-court system. Some, like Virgilio, were arrested on criminal charges, then handed over to immigration officials; others have no criminal history and were ensnared in dragnets at their workplaces or homes; others still were locked up when they sought asylum.

Unlike in criminal cases, defendants in immigration court aren’t guaranteed a lawyer. Jailed immigrants who can’t afford one or can’t secure pro bono legal aid are left to navigate the complex court system on their own. In San Francisco Immigration Court, which handles cases from all over Northern California, more than two-thirds of detained defendants who appeared between 2012 and 2015 lacked a lawyer. Those fortunate enough to have one were seven times more likely to avoid deportation. One San Francisco immigration judge has compared the system to “death penalty cases heard in traffic court settings.” With immigration arrests up 42 percent in the first nine months of the Trump administration, the detainee population is expected to soar.

Until recently, Ugarte could represent only about 10 people like Virgilio each year. His main role, since the Public Defender’s Office hired him in 2014, had been advising colleagues on the immigration consequences of criminal cases. That changed last May, when, spurred by the election of Donald Trump, San Francisco public defender Jeff Adachi launched a unit dedicated to representing detained immigrants facing deportation. The unit was only the third of its kind in the nation, after similar efforts in New York City and Alameda County. Adachi initially lobbied City Hall for a team of 10 attorneys and seven support staff that could handle up to 600 cases a year. After several proposals stalled with the Board of Supervisors, Mayor Ed Lee agreed in March 2017 to allow Adachi to hire three attorneys and one paralegal. When the new fiscal year started in July, those positions, plus a senior clerk, became permanent at an annual cost of $800,000. (On January 23, supervisors Sandra Lee Fewer and Hillary Ronen, who happens to be Ugarte’s wife, introduced a proposal to add eight full-time attorneys, two investigators, and four other staffers to the Immigration Defense Unit. The proposal is currently being considered by the board’s budget and finance committee.)

Still, the effort was more of a Band-Aid than a solution: The unit is currently equipped to represent just 160 clients a year, while more than 14,800 people with cases now pending in San Francisco Immigration Court were detained at some point in the process, and nearly 700 remain behind bars. “We’re taxed to the limit, and we’re unable to take all the cases we want to take,” says Ugarte. “It’s gut-wrenching.”


“Maria, I’m sorry. I know I spoiled everything…. I ask forgiveness for all my nonsense and my failures.”

Virgilio hadn't been planning to drink on Valentine’s Day 2016. But he had struggled with alcoholism since his 20s, and his plans soon changed. He had already been arrested and convicted twice, in 2012 and 2014, for driving under the influence. Both times, he spent a couple of days in jail, paid a small fine, and was sentenced to probation. The second time, he was turned over to immigration officials but was quickly released on a $2,000 bond. He enrolled in an ICE program that required him to report to authorities weekly and wear an ankle monitor. Virgilio promised Maria and her daughters that he would stop drinking. The longest he made it sober was four months.

That evening in February 2016, after a day working construction, Virgilio came home and got into an argument with Maria “over something not worth mentioning.” He then left and drove to one of his regular fishing spots near the old Candlestick Park, where he ran into an acquaintance who’d brought Coronas. Just a couple beers, he thought.

What happened next is still in dispute, but it would alter the course of his life. Around 6:30 p.m., after several beers, Virgilio went to move his truck before the parking lot closed. As he backed up, three men halted his truck, then dragged him out and started punching and kicking him until he blacked out. He claims he had no idea why he was being attacked; however, when police arrived, a witness accused Virgilio of running into a two-year-old boy who’d dashed behind his vehicle. He was arrested and taken to a hospital because of his injuries, then to jail. He was charged with a DUI and causing bodily injury while driving without a license, both misdemeanors. Medical records showed that the boy had minor scratches and bruising. Elizabeth Camacho, the public defender representing Virgilio in a pending criminal case, says the evidence does not prove he hit the child.

Virgilio was released from jail after four days. Hours later, he reported to the office of ICE’s supervised-release program with Maria and Daisy. He explained that he’d missed his appointment two days earlier because he’d been in jail. Immigration officers cuffed his hands and chained his waist and ankles. His fiancée and daughter, who were waiting for him downstairs, started crying when they saw him being loaded into a black van. “No matter what happens,” he shouted to them, “I love you.”


“I would like to be a bird so I can fly to you.”

Unlike most legal-service providers, the Immigration Defense Unit of the San Francisco Public Defender’s Office doesn’t screen clients based on residence, criminal history, or other criteria. Instead the unit’s four attorneys— Ugarte, Jennifer Friedman, Hayley Upshaw, and Carla Gomez—take turns showing up in immigration court every two weeks, offering to represent any detainee scheduled for a bond hearing. Their attack has two prongs: First, they try to get people out of jail. Then they fight deportation. (People who have been convicted of certain crimes, including murder and rape but also some theft and drug offenses, aren’t eligible for bond and can be deported without a hearing.)

The unit’s clients include grape pickers from Ukiah, cell phone store managers from San Francisco, and recent high school grads from Hayward. Some decided to move here as adults; others didn’t learn they were undocumented until they applied for a job or a driver’s permit. Most are from Mexico and Central America, a few from Asia and the Middle East.

According to a survey of legal aid nonprofits from 2014, more than half of detained defendants in San Francisco Immigration Court had been in the United States for more than a decade, and 77 percent lived with relatives, over half of whom were citizens.

The attorneys are operating in a court unlike any other in the American legal system. Respondents have no right to a jury trial—or a speedy one. Hearings are often continued for months, with the average case in San Francisco now stretching to 761 days. Prosecutors aren’t required to turn over exculpatory evidence or even the defendant’s immigration file, except through a public records request. Hearsay is routinely admitted as evidence. Unlike in criminal court, hearings are not required to be translated for the defendant’s benefit; only direct communications are interpreted. “They claim to have due process, but it has no meaning,” Gomez says. “There’s no bite to it.”

Judges follow immigration statutes and a body of case law, but subjectivity is inherent in deciding who is a “danger,” who faces persecution in their native land, and who deserves a chance at redemption. As a result, the attorneys’ job is to humanize their clients as much as to prove legal points. Of the 75 clients the Immigration Defense Unit has represented since May, 60 percent had been released on bond as of January 1. Nationally, the success rate for detained immigrants without lawyers is just 11 percent. But victory can still depend on who is on the bench. “If you’re before a judge that doesn’t let anyone out, you could put together the most beautiful presentation, and it falls on deaf ears,” Gomez says. “It shouldn’t be so arbitrary.”

If clients are released on bond, options for staying in the country permanently are limited. Crime victims can apply for a U visa, created to encourage undocumented immigrants to cooperate with law enforcement. (Ugarte applied for one on behalf of Virgilio in March 2017, based on his beating in the parking lot.) Members of a persecuted group can apply for asylum. Other options exist for relatives of veterans or citizens, victims of human trafficking, and certain special groups.

The biggest challenge for the attorneys is their inability to meet ever-growing demand. In all, San Francisco Immigration Court has a backlog of nearly 49,000 deportation cases. Whenever I visited the court for detained defendants, at least half of those on the docket had no lawyer listed. The unit’s work has taken on even greater exigency as ICE’s leaders have issued threats to states, like California, that resist federal immigration law. In January, it emerged that the agency was planning to arrest more than 1,500 undocumented immigrants in sweeps in Northern California. Later in the month, ICE raided 77 businesses in the region, demanding proof of employees’ citizenship—reportedly the largest such action of the Trump administration to date.


“There are so many things I would like to enjoy that I never valued when I was outside. Mole—how delicious! Someday, someday.”

On the morning
of March 29, 2016, five weeks after first meeting Virgilio in jail, Ugarte arrived at the austere, 16-story federal immigration building on Sansome Street. He took the elevator to the fourth floor, where three judges preside over the cases of detained immigrants. (A separate immigration court on Montgomery Street hears non-detainee cases.) Ugarte walked to Courtroom 1, a white-walled room with burgundy carpet. There he found Virgilio’s family sitting in the dark wood pews: Maria, a petite woman in her late 40s with graying black hair down her back; Anthony, a skinny 20-year-old with a 49ers hat over his ponytail; Daisy, 17, her face strained with worry; and Azucena, a 7-year-old with curious eyes. The man who’d vanished from their lives appeared in his jail scrubs on a large screen.

This was Virgilio’s first bond hearing, which would determine if he could go home to his family while the court decided whether he could stay in the country. Ugarte had to prove his client was neither a flight risk nor a “danger to the community.” Essentially, he had to make the judge see beyond what was in front of him: the “alien” with an alcohol addiction and three DUIs on his rap sheet. Ugarte had submitted a 127-page exhibit to back his case, including certificates from rehab classes Virgilio was taking in jail, letters from his family, and a psychological evaluation that diagnosed him with major depression and PTSD. “He’s a good man, your honor,” Ugarte told Judge Vincent White. “This man understands that he has a problem. This man has played a vitally important role in these United States citizen children’s lives.”

Ugarte said his client was willing to wear an electronic ankle bracelet that would immediately notify law enforcement if he drank alcohol. The judge in his criminal case had already agreed to release him on $100,000 bail, later reduced to $5,000, and impose the electronic monitoring. “If he drinks, then he becomes a danger. Then he should be remanded,” Ugarte said.

Judge White didn’t buy it. “He’s had plenty of chances,” he said. Less than a week later, White issued a decision denying bond. Virgilio would remain in jail.


“I feel a little happy, because I already managed to be here for a year. I know that the more days go by, the closer I am to freedom.”

Nearly sixteen months later,
early in the morning on July 24, 2017, Ugarte watched a movie on his computer with sleep-tinged eyes. The film was a documentary in progress called Defender, which Adachi had commissioned; it partly followed Virgilio’s case. Ugarte had decided to submit a clip at that morning’s hearing, a last-minute gamble he hoped would help render his client in three dimensions. “It may piss off the judge, it may work,” the attorney said, clicking through stills with a pen between his teeth.

By now, Virgilio had been in jail for 523 days. He’d been denied bond three times, plus once on appeal. (Detained immigrants in the Ninth Circuit are entitled to a bond hearing every six months.) Today’s hearing was about Virgilio’s asylum petition. Proceedings had started more than a year ago but had been delayed because of procedural issues. This would be the second hearing with testimony, in front of yet another judge. To win the case, Ugarte had to prove that Virgilio would be in danger if he returned to Mexico because he was a Chol Mayan, an oppressed indigenous group.

In Courtroom 2, Maria and now-nine-year-old Azucena sat in a front-row pew where someone had scratched “FREE MY DAD” and “LOVE” in the dark wood. Maria wore a bracelet with horseshoe and clover charms. Azucena leaned on her mother’s shoulder and folded a piece of paper over and over. She’d woken up at five that morning, shaking and nauseated. Her hair had been falling out since her dad went away, leaving bald spots on her nape. Maria’s older daughter, Daisy, had stopped attending Virgilio’s hearings, tired of watching the same outcome every time. She had recently fallen into depression and dropped out of school to work at Starbucks.

When Virgilio appeared on-screen, he waved to Ugarte. Then he spotted his family and broke into a fat grin. Maria wiped her eyes. He blew a kiss and moved two fingers back and forth, signing “I see you.” When the camera turned away from his family, Virgilio’s face and shoulders dropped. Azucena turned back to doodling.

Two and a half hours passed before proceedings began in earnest. Judge Robin Paulino dialed Katherine Faydash on speakerphone to continue testimony she’d begun four months earlier. The DePaul University lecturer is an expert on human rights in Virgilio’s native Chiapas. She described the discrimination indigenous Mayans face in Mexico: “People are denied jobs. People are called names. They’re denied entry to establishments.” She didn’t get very far before time was up.

Judge Paulino adjourned the case and scheduled the next hearing for 11 weeks later, in front of a different judge. Ugarte rubbed his temples. Virgilio’s face vanished from the screen, and the Justice Department seal took its place. Ugarte gathered his things and walked with Maria and Azucena to an Illy café down the block. He ordered a smoked salmon bagel for himself and a macaroon for Azucena. “I thought he was going to get out today,” Maria lamented in Spanish as they sat around a table. “He doesn’t deserve to be there.”

With her partner behind bars, Maria, who is illiterate and struggles with diabetes, high blood pressure, and depression, had fallen deeper into debt. A legal permanent resident, she lived in public housing and subsisted on disability benefits, food stamps, and the $20 she earned each day by watching a neighbor’s two kids.

The little girl asked Ugarte: “Do you get tired doing this all the time?”

He smiled. “You can’t let being tired stop you from doing what you have to do. The first time you and I saw each other, I swore to whoever was around that he was going to get out.” He tapped his fist on the table. “As bad as it is right now, your dad is really fighting for you. He loves you so much. So much.”


“What wouldn’t I give to listen to our song and sing with you like those nights, remember? I hope one day this year to be sitting in an armchair watching sad videos, to cry in peace about everything I haven’t been able to cry about in this damned and blessed jail.”

Courtroom 2
was clammy on the afternoon of October 13, with the air-conditioning from the wine country fires. A new judge, Joseph Park, sat on the dais. Relatively young, with long black hair pulled back in a bun, he’d been on the bench for two months after a career as an ICE attorney. Virgilio sat at the witness stand, a heavyset guard at his back, stealing glances at Maria and Azucena. (He was allowed to appear in person to receive simultaneous translation.) At Ugarte’s invitation, more than a dozen volunteers from Faith in Action, a network of religious groups, had also shown up.

Two hearings in front of Judge Park were scheduled that day: first, yet another bond hearing to decide whether Virgilio could be released from jail, then a continuation of his asylum case. After Ugarte called his client to testify, Virgilio explained that he’d been attending alcohol rehab classes every Saturday for the past year and a half, plus classes on parenting, typing, and English. “I was able to recognize that I have real, serious problems with alcohol,” he told the judge through an interpreter. “I want to apologize to Maria and my daughters,” he said, wiping away tears with his sleeve. “I want to apologize to the judge and to anybody to whom I caused any harm. I recognize that I made a huge mistake.”

“If you’re released from custody, are you going to drink alcohol again?” Ugarte asked his client.

“Absolutely not.”

“How sure are you of that?”

“I have no words. I never want to relive what I’m living right now.”

“DUIs are dangerous, but let’s have some semblance of perspective,” Ugarte said to the judge in his closing argument. “He’s been in jail for 603 days. He’s not a drug user. He’s not a gang member. He’s not running around with guns. He has an alcohol problem. At some point his incarceration converts to punishment rather than clear and convincing evidence that he’s dangerous.”

It didn’t take long for the judge to announce his decision. Bond was denied. Virgilio wouldn’t be going home. “It just makes very little sense to me,” Ugarte said to the judge, his tone halfway between pleading and combative. “At this point, I’m not sure if any evidence at all could’ve changed the court’s ruling.”

During the break, a tearful Azucena begged to leave, and a volunteer took her home. When the asylum hearing started, after a 15-minute break, the expert from DePaul, Faydash, finally concluded her testimony. She said that Virgilio would face discrimination and risk violence at the hands of paramilitary forces in Mexico. Then the judge put Virgilio under oath. Before words could come out, his tears started flowing.

Virgilio explained to the courtroom that he grew up in Chiapas, Mexico’s poorest state. He was the second of 9 or perhaps 10 siblings and started working at age nine, hauling wood and planting corn and beans for up to six hours a day. There was no doctor in town, and he often went hungry. Hanging his head, he described how his father beat him three or four times a week, how he fled north at around 13 to the state of Tabasco, then to Mérida, a city on the Yucatán Peninsula. He described not finding stable work in the cities because he was indigenous, underage, and unable to speak Spanish. He ended up working temp jobs laying bricks and selling juice door-to-door. One day, a dozen or so men yelling racial slurs beat him with a bat, breaking his cheekbone and leaving him for dead on a beach.

Judge Park looked inscrutable. “It hurts,” Virgilio spat out through tears. “As much as I want to forget all that stuff, I can’t.”

Time was up. The judge scheduled another hearing for the following week. Ugarte rushed Maria to the sixth floor to see Virgilio in a visiting room. By the time they got there, he was already gone.


“I am fine, I feel fine, I have to be fine.”

Two and a half weeks later,
I visited Virgilio at the West County Detention Facility. He is one of around 200 detained immigrants who make up one-fifth of the inmate population. We met in a room the size of a walk-in closet and spoke through an interpreter across a plexiglass screen smeared with fingerprints. He wore a lightgray sweatshirt under his jumpsuit and a bracelet branded with his name and photo. Virgilio said he’d expected the judge to finally release him: “I went there ready. I told them everything I was feeling, and it was real, but at the end they just denied it.” A decision on his asylum case would take weeks, maybe months. He was trying not to get his hopes up.

“The only sure thing for now is more time in jail.”

Virgilio said he spent 21 hours a day in a cell shared with a Guatemalan man who cried over fears that his wife was cheating on him. “I thought that when people get old, they don’t cry,” he said. “But in here, everyone cries. Even the toughest ones.”

Virgilio passed the time making rosaries and drawing cartoon characters for Azucena in colored pencil. He couldn’t talk about the girls without choking up. They called and wrote less frequently now. No one in the family had visited since April; the cost of public transit to Richmond was more than they could afford. The only person who visited now was Ugarte. “When he comes to see me, I no longer care if it’s good news or bad,” he said. “He comforts me, he cheers me up.”

If he were to win asylum, Virgilio had one goal: “To make the people around me happy. I’ve been carrying around a lot of heavy baggage. When I get out of here, I’m going to leave it here.”

And if the worst were to happen, if he were sent away from his family to a country that had given him nothing but pain, he had no doubt about his plans: He would cross again. “I don’t have anything there,” he said. “I am from here.”

But he was optimistic about the asylum decision. “To tell you the truth, my heart tells me there is an 80 percent chance this is going to go well. The story of my life, the story of my people—that was not a lie. If that’s not enough, if the humiliations that we indigenous people suffered is not enough…” He paused. “Then he will deny it.”


On December 12, Ugarte returned to the jail to give his client the news in person. Judge Park had rejected his asylum claim. Virgilio’s eyes reddened.

There was a small reason for hope, however. Though the judge didn’t think Virgilio would face danger if forced to return to Mexico, Park had found Virgilio credible and agreed that he’d previously faced persecution because of his ethnicity. Acknowledging that Virgilio had demonstrated “good moral character,” Park was offering him the chance to voluntarily return to his home country. The judge’s positive assessment of Virgilio boded well, Ugarte thought, for his pending U visa application. Perhaps this one instance of judicial leniency could augur another.

Virgilio now faced a choice. If he self-deported, he could await a decision on the U visa from Mexico. Finally he could get out of jail. But he would have to give up his quest for asylum.

If he rejected the voluntary return to Mexico and chose to appeal the asylum decision, he faced more hard time in detention. The asylum case could take a year, even two to be resolved. And the backlog for processing U visa applications was three years. In the end, Virgilio could spend years in lockup and still be sent away from his family. He had already been incarcerated for 664 days, longer than any of the Immigration Defense Unit’s other clients. His next six-month bond hearing wasn’t slated until April.

“You’ve been in for a really long time. If you want to go back to Mexico, I’m OK with that,” Ugarte told him.

Virgilio studied his lawyer, searching his eyes like they were a crystal ball.

“I’m not going to make this decision—you have to,” Ugarte said.

Virgilio thought hard before answering. “I want to appeal,”he said, finally. “I want to take this to the very end. I don’t want to give up.”


Originally published in the March issue of San Francisco 

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