Every morning, Walter Cruz-Zavala wakes up with the prospect of his own violent death hanging over his head. The Department of Homeland Security says that the 31-year-old is not a prisoner, nor is he being punished; he is experiencing an administrative process that could end at any moment if he would simply accept his deportation to El Salvador, where immigration judges have twice ruled that he would likely be tortured. It’s up to him to decide: Keep up the fight or let go and suffer the consequences.
The danger is without question. Inked into Cruz-Zavala’s chest are two large letters: “M” and “S.” The man who convinced him to get and subsequently gave him the tattoo when he was a teenager, in 2008, was the top informant in what was then the largest U.S. Immigration and Customs Enforcement operation against MS-13 ever. Later, after collecting years of payments for his role in leading the San Francisco clique that Cruz-Zavala had joined, the informant admitted that he had committed and ordered a series of grisly murders before going to work for the U.S. government.
Cruz-Zavala, who had just turned 18, was among dozens of young men swept up in the high-profile conspiracy case that followed. He spent nearly three years in solitary confinement before his charges were dropped. He emerged from jail at 21 years old. Though he had left MS-13 behind, he had also spent his first years of adulthood locked in a room alone. It had been seven years since he first came to the United States as a 14-year-old boy, traveling alone, hoping to reunite with his father and escape years of abuse and violence. Though the government poured money into the case that led to his confinement, it offered nothing to address its fallout. Cruz-Zavala soon spiraled. He drank hard, collected DUIs, and one night accidentally shot himself in the leg while heavily intoxicated. By the summer of 2017, he was once again in ICE custody.
After entering ICE’s Mesa Verde processing center in Bakersfield, California, more than three years ago, Cruz-Zavala won his immigration case twice. His probation officer endorsed his release plan, citing his admission into an intensive inpatient rehabilitation facility. And yet, Cruz-Zavala remained locked up, fighting against the current dragging him toward deportation.
“I think I’d probably get killed,” Cruz-Zavala told me the first time we spoke. “I think about it every day.” What eats at Cruz-Zavala is the fact that the tattoo, given to him by a man working for the government now trying to deport him, is a driving force in the danger he faces. And it’s not as though removing the markings would fix things. “If I get in contact for any reason, like I see one of these guys that know me from the past, and I don’t have these tattoos anymore, they’re going to be trying to kill me for that,” he said. “It’s very complicated.”
“It’s like, if I have them, it compromises my life. If I don’t have them, it compromises my life too,” he added. “I don’t know what to do.”
Cruz-Zavala entered his fourth year in ICE custody in what was supposed to be a moment of change. President Joe Biden vowed to break with his predecessor upon entering office, bringing humanity to the nation’s broken immigration system. For Cruz-Zavala, and others like him, the struggle has only deepened.
While the Biden administration has dialed back the blanket targeting of undocumented immigrants that defined the Trump years, it has also reasserted focus on immigrants with gang affiliations — the kind of enforcement that Democrats and Republicans alike have supported for decades. On paper, Cruz-Zavala’s case would read to many as a concrete example of the kind of individual ICE and the Biden administration should seek to deport: five DUIs, a firearms conviction, a gang linkage, and a giant MS-13 tattoo. What those datapoints fail to capture, argues Raha Jorjani, Cruz-Zavala’s attorney, is everything else.
“When you get into people’s stories and their nuances, the picture changes and the story changes,” Jorjani told me. “When you boil things down to these short, concise, categorical categories, you lose all of the humanity. You lose what matters.”
“When you boil things down to these short, concise, categorical categories, you lose all of the humanity. You lose what matters.”
In conversations over multiple months from his detention center confines, Cruz-Zavala recounted the story of his journey from a small town in El Salvador to indefinite detention in a for-profit U.S. immigration jail in southern California. It was a personal story, one of pain and transformation. As Cruz-Zavala would describe it, it was a story of growing up.
Spanning four presidential administrations, Cruz-Zavala’s interactions with the homeland security apparatus reveal the historical ties between counterinsurgency campaigns in Central America, California gang policing, and the explosion in immigrant detention in the United States over the past two and a half decades. His ordeal illustrates how when it comes to immigration, brushes with the criminal justice system — whether or not they result in a conviction — are used to keep people locked up, producing a grinding experience that aids ICE’s deportation efforts. Homeland security lawyers rely on specific language to justify these conditions, arguing that immigrants are not “incarcerated,” they are “detained,” in what should be termed “detention centers,” not “prisons,” for matters that are “civil” not “criminal.”
“There’s no real difference,” Cruz-Zavala said. “The name changes, but the prison doesn’t change. The reality is the same. You don’t have freedom.”
Walter Cruz-Zavala was in born in El Salvador in 1990, two years before the signing of the Chapultepec Peace Accords, which marked the official end of the nation’s catastrophic civil war. More than 71,000 Salvadoran civilians were killed as the conflict raged throughout the previous decade — nearly 2 percent of the country’s total population. A quarter of the population fled the country. The government and right-wing death squads were responsible for the vast majority of the killings. The military enjoyed indispensable support from the Reagan administration, which took the position that counterinsurgency campaigns in Central America were necessary to “roll back” Soviet influence in the region and safeguard U.S. national security.
The adults in Cruz-Zavala’s life rarely spoke of the war. When they did, they described horrible things. It seemed as though they were still traumatized, he thought. Cruz-Zavala believes, though he is not sure, that his dad’s first journey to the U.S. had something to do with the conflict. There was also the issue of money, and the family’s lack of it. Like many other Salvadorans, Cruz-Zavala’s father traveled to the U.S. to work and send cash back home. All told, Cruz-Zavala said, his dad was present for no more than three years of his childhood.
As Cruz-Zavala got older, his father’s efforts to make a living in the U.S. drew the attention of local gang members. “They thought my family had money,” he said. Robberies, beatings, and harassment became a fact of life, but that wasn’t the only struggle he faced. Beginning around the time he was 6, Cruz-Zavala was sexually abused by an adult male neighbor. The abuse continued for nearly three years. The man swore him to secrecy. Cruz-Zavala would carry the secret for more than two decades.
Between the childhood trauma and the violence he experienced as a preteen, Cruz-Zavala made up his mind to journey to the United States to find his father. By 2004, he had scrounged enough cash to make his way more than 2,300 miles north. The young Salvadoran didn’t know what to expect as he set off for California. “When you’re in another country, people say a lot of beautiful things about the United States,” he said. “You think the United States is like paradise.”
Border Patrol agents took Cruz-Zavala into custody in Texas. He spent two weeks in a cell while government officials tracked down his father, who was then living in San Francisco’s Mission District, and arranged for his release.
Cruz-Zavala felt overwhelmed in the massive American city. It seemed that everyone was in a hurry. It was hard to keep up. His father was renting a room in a two-bedroom apartment shared by eight people. He, his dad, and a cousin shared a tiny space with two beds. Cruz-Zavala would sometimes sleep on the ground. “My dad was like a stranger,” he said. It had been years since the pair had spent any time together. His dad worked a graveyard shift. When weekends came around, he was too exhausted to do much of anything. Any hopes of reconnecting, let alone addressing what had happened in their years apart, crumbled away. “It was really difficult for me,” Cruz-Zavala said. “I didn’t know the place. I didn’t know the people.” He felt trapped.
Slowly, Cruz-Zavala discovered that he had stepped into a community with deep and often painful links to the turmoil of his home country. In Los Angeles, young members of the Salvadoran diaspora formed cliques to defend themselves against established gangs. Among them was a group of pot-smoking metal fans who called themselves Mara Salvatrucha — what would later become more widely known as MS-13. As the gang evolved through the 1980s and early 1990s so, too, did U.S. law enforcement’s approach to gang policing. The war on drugs was in full swing in California. With the passage of the 1988 Street Terrorism and Enforcement Act, gang policing became a domestic counterinsurgency campaign of its own. Other measures soon followed, including databases that featured hundreds of thousands of individuals who were deemed amenable to “gang enhancement” charges, as well as gang injunctions, which aimed to criminalize the gathering of groups of two or more people in certain neighborhoods.
The drug war and the gang policing that followed it, including raids and sweeps that led to the arrest of roughly 50,000 people between 1988 and 1990, helped to turn California into the incarceration capital of the most carceral nation in human history. Groups like MS-13 grew inside the state’s bloated penal system. Cycles of incarceration produced a more organized gang, with leaders on the inside issuing orders to those on the outside. In 1996, President Bill Clinton signed legislation that, in addition to laying the foundation for today’s industrial-scale immigration detention and deportation apparatus, bolstered the pipeline from U.S. prisons back to El Salvador. Supported by then-Sen. Joe Biden, the Illegal Immigration Reform and Immigrant Responsibility Act widened the pool of people eligible for deportation and “extended the War on Crime to the immigration system.” The U.S. began deporting Salvadorans with criminal convictions by the thousands. The Salvadoran state, still reeling from the war, was in no position to handle to the influx.
Journalist Roberto Lovato grew up in the Mission District. He and his teenage friends formed a gang that ran the streets Cruz-Zavala would later call home. In his recent book, “Unforgetting: A Memoir of Family, Migration, Gangs, and Revolution in the Americas,” Lovato details how U.S. officials who advised on Central American counterinsurgency operations in the 1980s became California police advisers in the early 1990s, shaping the “war on gangs” and its expression in Salvadoran communities. “My experience in El Salvador and in the United States, in the case of the Salvadorans, showed me clearly that we have been a thoroughly policed and militarized community for decades,” Lovato told me. “It’s a circuit of counterinsurgency that is at work when you’re looking at the police, the prosecutor, and judges going after immigrant gangs.”
“They thought I was from MS-13 or whatever, but I wasn’t nothing back then — I was a regular kid.”
Historically, Latino gangs in California have broadly divided into two factions: norteños, largely made up of U.S. citizens and individuals with longstanding ties to the U.S., often of Mexican descent, and sureños, more commonly made up of immigrants from southern California and south of the border, including Central America. Cruz-Zavala knew nothing of these divisions when he first got to California. As a freshman at a San Francisco high school dedicated to refugee and immigrant youth, his troubles only deepened. Unable to hide his Salvadoran dialect or speak English, he soon found himself on the receiving end of norteño harassment and beatdowns. “They thought I was from MS-13 or whatever, but I wasn’t nothing back then — I was a regular kid,” he said. The violence was jarring, prompting flashbacks to El Salvador. “I couldn’t believe the same thing was happening to me again here,” he said. “All that I did to leave my country to come and stay here with my dad, and then the same thing was happening to me again.”
Through an after-school program, Cruz-Zavala met other young people like himself: Central American kids from El Salvador and Honduras, adjusting to hostile new surroundings. They introduced him to a wider network. He made friends and found community. “I felt like I belonged to somewhere,” he said. Back at home, Cruz-Zavala and his father were clashing regularly and with growing intensity. “It was horrible,” he said. “Even to this day, now, I think we’ve barely started healing from those first mistakes that I did in the past.” Cruz-Zavala began drinking, getting high with his new friends, and getting into trouble at school. “The next thing you know, my life changed dramatically,” he said. “It got to the point that I didn’t even know what to do.”
Shortly before his 17th birthday, Cruz-Zavala was jumped into the MS-13 clique that ran the Mission District, known as 20th Street. “When I met these people, I didn’t even know that MS-13 was in San Francisco,” he said. What he did know, or at least thought, was that if he hung around with this new crew, he wouldn’t get his ass kicked anymore. “I kinda got tired of being the victim,” he said. “I got jumped in a gang so I can defend myself.”
The cycle is not uncommon, said Frankie Guzman, a lawyer and director of the Youth Justice Initiative at the National Center for Youth Law in Oakland. Guzman grew up in a sureño-dominated community outside of Los Angeles in the 1990s as the state’s hyperaggressive gang policing was reaching new heights. He cycled in and out juvenile and adult detention facilities before making his way to law school. Guzman now works with young people with backgrounds similar to his own. In 2017, he interviewed Cruz-Zavala and submitted a legal assessment of his background in his immigration case.
Obviously, not all immigrant kids join gangs, Guzman told me, “but many do, and those that do have a lot of the experiences that Walter experienced.” Low self-esteem, adverse childhood experiences, and immaturity are all common characteristics for gang-involved youth. Hostile immigration experiences can intensify feelings of displacement and powerlessness. “This condition of powerlessness will drive them to do things that make that not so,” Guzman said. Beyond physical protection, a gang can offer an alienated young person access to seemingly unobtainable resources and experiences: clothes, cash, and opportunities for socializing and romantic relationships. “These are not frivolous factors to a teenager,” Guzman said. “What society doesn’t give them, the gang does, and we blame them for that when that, to me, is a natural human response to a very common human condition.”
“These are not sophisticated criminals,” he said. “These are immature young people who do the very thing that will cause them more harm believing that it will protect them.”
Four years after he arrived in the U.S., that reality would come crashing down on Cruz-Zavala in ways he never could have imagined.
Asmall army amassed at an airfield on the edge of the San Francisco Bay in the predawn darkness of October 23, 2008. There were at least 300 local, state, and federal law enforcement officials on hand. ICE SWAT teams had flown in from across the country for the operation.
The sun was just beginning its rise when the raiders moved out — 16 teams riding in armored vehicles, 20 men each, hitting targets as choppers circled above. They pounded on doors and pulled men from their homes, checking them for tattoos.
In San Francisco, Joseph P. Russoniello, the U.S. attorney for the Northern District of California, briefed the press on a 52-count indictment that charged 29 individuals, most of them members of the Mission District’s 20th Street clique, in a massive conspiracy that involved multiple murders and attempted murders, drug dealing, organized car theft, and witness tampering. Russoniello vowed to seek the “maximum possible penalties” in the crackdown, which for most of the defendants meant life in prison.
Flanked by San Francisco’s chief of police and the city’s district attorney, future Vice President Kamala Harris, Russoniello described the case as an effort to rescue vulnerable young people from the pull of MS-13, providing them with “alternatives to the often short-term gratification” of gang membership. The crackdown was “but one more steady step in the process of taking back our communities and giving young people the chance to make meaningful good long-life choices.”
Weeks before the arrest, the teenager made a decision that would alter the course of his life forever.
The youngest defendant in the case was already in government custody when the raids kicked off. Cruz-Zavala had been arrested that summer on joyriding charges. Weeks before the arrest, the teenager made a decision that would alter the course of his life forever, visiting an apartment where a 20th Street leader known as “Bad Boy” was staying.
Bad Boy was older than most of the members, in his late 20s or 30s, Cruz-Zavala estimated. “We’d always look up to him,” he said. “He used to be giving us advice, ideas of what we’re supposed to be doing, and he was always pushing the issue for us to do a lot of things.” Among the things Bad Boy pushed for were tattoos. “You’ve been around in the game for too long,” he would tell the younger guys — it was time to show some commitment. “He was good,” Cruz-Zavala said. “He would play with your mind. He was a really smart guy and, you know, I was like 17 years old, 18 years old.” Using a homemade tattoo gun, Bad Boy etched MS-13’s initials into Cruz-Zavala’s chest. The tattoos would serve as an ID, Bad Boy told the young men, a lifelong testament to their affiliation.
“He gave a lot of minors tattoos at that time,” Cruz-Zavala said. “It wasn’t only me.”
The tattoo was still fresh when Cruz-Zavala was arrested in June 2008. Because he had recently turned 18, he was charged as an adult for joyriding, and because he had the initials of the Western hemisphere’s most notorious street gang inked into his pecs, he was also hit with a gang enhancement charge born out of the Street Terrorism and Enforcement Act. The first charge was dropped; Cruz-Zavala pleaded guilty to the second. He was shuttled into ICE custody, where the feds picked him up when the October raids happened. From there he was moved to a small, underground cell in the county jail. There he would remain, alone, for 23 and a half hours a day, every day, for nearly three years.
Outside the jailhouse walls, the story of ICE’s Operation Devil Horns was major news. “It was our first big RICO case in our district,” Randy Sue Pollock, the court-appointed attorney who was assigned Cruz-Zavala’s case, told me. To this day, she said, precedents set in U.S. v. Cerna, the official title of the case, are routinely cited in gang cases in the Northern District of California.
Through a translator, Pollock did her best to explain to Cruz-Zavala what was happening. It wasn’t easy. “He was just a young kid,” she said. Pollock’s client hardly came up in the government’s indictment. The most serious individual allegation against him was that he brandished a knife while members of his clique collected money from a drug dealer. Still, because it was a conspiracy case, the consequences he faced were devastatingly serious. Cruz-Zavala struggled to take it all in.
“I was young back then, 18 years old, barely, so when they took me to the court and they read my charges and everything, I’m like, these people’s crazy,” he said. “They can’t do that. Why they gonna give me life?”
Weeks turned to months. At night, Cruz-Zavala would stay up for hours reading. He would wake up the next morning, work out, and then begin drawing. “Before, I didn’t even know how to draw,” he said. Soon, he was pouring hours into images he created for himself and others at the jail. Art became a way to steady himself, but even the best of coping mechanisms have their limits. “I would get tired of doing the same thing every day. I would get tired of reading. I would get tired of working out. I would get tired of drawing,” Cruz-Zavala said. “Spending 23 hours and a half in a cell, every day, for more than two years — it’s not an easy thing to do.”
It was around the two-year mark when Cruz-Zavala’s thinking shifted. “These people, they’re really try to give me life in prison,” he thought. “This is actually happening.” He fixated on the things he missed out on growing up, because of where he came from and because of the decisions he made. “Eventually you start thinking, you know what, I’m gonna be here for a minute. This is my reality right now. This is my life. This little cell right here, this is what I am,” Cruz-Zavala said. “I started thinking for the first time in my life about life.”
As the years went by and the trial approached, new details came to light in the San Francisco conspiracy case. It was clear that ICE’s case leaned heavily on a confidential informant and before long, the informant’s name was known: Roberto Acosta, aka “Bad Boy.”
According to court filings, Acosta was 14 years old when he joined an MS-13 clique in the Honduran city of San Pedro Sula. In the late 1990s, the U.S. began deporting large numbers of the gang’s rivals to the city. War ensued. Acosta rose through the ranks but was eventually slated for execution following an internal financial dispute. At one point, he reportedly refused an order to murder his pregnant wife and saw his teenage brother and sister killed in front of him. He took off for the U.S., arriving in San Francisco in late 2004, where he was picked up on a jaywalking charge. By mid-2005, he was working as an ICE informant, with his wife, child, and mother relocated to the United States courtesy of the U.S. government.
As the Operation Devil Horns trial approached, attorneys for the defendants filed a series of failed motions accusing ICE of entrapment. Identified in court records as “CI 1211,” Acosta was said to have “transformed the gang from a disorganized group [of] ‘paisas’” — normal people — into “a violent organization with stricter rules, a well-defined chain-of-command, and greater emphasis on violence.” In addition to pushing for more “shootings, robberies [and] attacks,” the informant allegedly focused his attention on the recruitment of new members and cementing their allegiance by personally giving them tattoos.
A cover story in SF Weekly detailed the impact of Acosta’s arrival on the Mission District’s 20th Street clique, reporting that he “tattooed more than a dozen members with MS-13 symbols” and quoting members who said that he threatened to kill them or their family members if they refused to join the gang. A Wall Street Journal examination of the relationship between ICE and its Operation Devil Horns informants said the agency’s conduct pointed to “bigger questions about how well government officials are controlling criminal cooperators.”
The most dramatic turn in the Acosta saga came on the eve of the trial, when the government charged its source with the federal crime of lying to law enforcement. Acosta’s handler revealed that his informant had failed to disclose the fact that he had committed or ordered eight murders in Central America before going to work for ICE. Acosta had copped to “a few murders” in 2008, but the statements he made in 2011 were more specific and numerous and meant that he had previously lied to ICE by saying he had disclosed all of his past criminal activity.
The fact that Bad Boy was an informant with a trail of alleged killings to his name was difficult to comprehend.
Though ICE’s star witness would not take the stand, the government nonetheless relied on the evidence he gathered as the foundation of its case. For Cruz-Zavala, the fact that Bad Boy was an informant with a trail of alleged killings to his name was difficult to comprehend. “I couldn’t believe it,” he said. “I used to look up to him.” The trial was a grueling, five-month ordeal. “Walter celebrated his 21st birthday in trial, next to me,” Pollock said. In the end, Cruz-Zavala was the only defendant acquitted. Pollock remembers how swiftly he was ushered out the courtroom. Only later did she learn that he had been transferred back to ICE custody, where he would now be facing deportation.
For the veteran criminal defense attorney, visiting the immigration court where Cruz-Zavala’s case was being heard was disorienting. Life-altering decisions were being made, not just in Cruz-Zavala’s case but in all of the cases coming before the judge. Where were the court-appointed attorneys? In immigration court, she learned, there are none. The government was pointing to the alleged crimes for which Cruz-Zavala had just been acquitted as grounds for his detention and deportation. “Even though he’d walked out not guilty, they kept throwing up the whole case at him,” Pollock said. It was in that moment that Pollock did something she never does: She posted bail for a client, spending $10,000 of her own money. “I had to help him,” she said. “I couldn’t see him in ICE custody.”
Cruz-Zavala had much to be grateful for. Not long after his release, his mother and sister moved to the U.S. — Cruz-Zavala is the only member of his immediate family living in the U.S. who lacks legal immigration status. “I feel like that was maybe one of the happiest days of my life,” he said. “To spend one Christmas with them and a new year with them, it was one of the best experiences of my life.”
At the same time, nearly three years of isolation left their mark. Grocery stores were an issue in the early days. After years alone, the sheer number of other human beings in one place was overwhelming. “Everything was like a new experience to him,” Pollock said. “I provided help to him, but he was still on his own and that’s a lot for young kid who had been in custody for so long.”
While he was locked up, Cruz-Zavala requested and received permission to leave MS-13, and he hasn’t looked back since. Still, the experience colored his ability to reintegrate into society. Relationships built through his clique were the only relationships he had. “I got attached to some of them,” Cruz-Zavala said. “I considered some of them my friends.” The people who had taken him in were receiving life sentences. Survivor’s guilt seeped in. Cruz-Zavala felt alone even when he was with other people. He would drink and get high by himself, fixating on the years he couldn’t get back.
Before too long, Cruz-Zavala had collected five DUIs. In those days, he said, he lacked the education and language to recognize and articulate what he was feeling. “That’s the thing that I always have to explain to people,” he said. “Back then, when I was doing the things that I was doing, I didn’t really know that I actually got a problem.”
In January 2014, northern California’s Alameda County made history, becoming the first county in the state to devote a portion of its public defender’s office to immigration defense. At the head of the legal effort was Raha Jorjani, a former law professor and expert on the intersection of criminal justice and immigration enforcement. It was through that program that Jorjani first met Walter Cruz-Zavala.
The facts of Cruz-Zavala’s immigration case had changed considerably since his 2004 arrival. The DUIs clearly worked against him, as did the gang enhancement charge he pleaded guilty to in 2008. The Operation Devil Horns prosecution was a different matter. Cruz-Zavala’s name was linked to a high-profile case involving MS-13 members cooperating with law enforcement. Though he left the gang, he still bore its initials on his chest. Those facts alone would be enough to invite violence if he was deported back to El Salvador, by the gang itself or by the country’s notorious security forces. By law, the U.S. is prohibited from deporting people to countries where an immigration judge has determined that they are more likely than not to be tortured.
“All of these things make him more likely to be tortured in El Salvador,” Jorjani, the federal public defender, told me. From late 2016 into 2017, as she prepared his asylum case, Jorjani began digging deeper into Cruz-Zavala’s experience of solitary confinement. She was struck by his openness. “He doesn’t hide things,” she said. Their conversations were often painful. Jorjani believes that the process unsettled old demons. One night in the summer of 2017, after weeks of reliving some of his darkest days, Cruz-Zavala got exceptionally drunk, got into a shouting fight with neighbors, and then later accidentally shot himself in the knee. The police showed up and he was taken to the county jail. He was later convicted of felony possession of an unregistered firearm. Cruz-Zavala posted bail, not knowing that the sheriff’s department collaborated with ICE, and was immediately handed off to the immigration enforcement agency. He was later transferred to the Mesa Verde ICE Processing Facility in Bakersfield, a drab complex penned in with razor-wire and managed by the GEO Group, a major for-profit prison corporation.
With Cruz-Zavala in custody, the stakes and urgency of his immigration case increased exponentially. “That’s when the case really was live,” Jorjani said. Detention, by its nature, is advantageous to ICE prosecutors, with individuals held in exhaustingly difficult conditions with diminished access to legal and emotional resources.
He was a young man carrying profound trauma, core elements of which the U.S. government had a direct hand in creating.
While he was in ICE detention, Cruz-Zavala shared with Jorjani the secret he had carried his entire life: the abuse he suffered as a boy. Jorjani made it her mission to show the court that Cruz-Zavala was more than a list of offenses on a sheet of paper; he was a young man carrying profound trauma, core elements of which the U.S. government had a direct hand in creating. She collected expert witnesses who assessed Cruz-Zavala’s life story from all angles and included their testimony in a 350-page evidence packet.
Guzman, the expert on gang-involved youth, said he was “moved” by the conversation he had with Cruz-Zavala through the plexiglass of the ICE detention center. “He was able to very well articulate a lot of the trauma that he had experienced as a kid,” and he was able to do so without having had any therapy, Guzman said. “He was just a genuine guy who had suffered a lot, understood the impact that his upbringing had on his thinking, his behavior, his decisions, namely to join a gang once he got to California, and how solitary confinement and all of that trauma cumulatively impacted his thinking.”
Dr. Terry Kupers, a California psychiatrist and expert on the impacts of prolonged isolation, also interviewed Cruz-Zavala. According to Kupers’ testimony, the recommended practice for rehabilitating individuals who have spent extended periods in isolation is to first move them back into the general population so they can slowly reacclimate to being around people, then release them from custody, all while continually monitoring their mental well-being. Cruz-Zavala had received none of those things. The form of solitary confinement he experienced was “extremely harsh,” Kupers said, and he already had “quite a remarkable amount of trauma for one individual” when it began. Cruz-Zavala was “at very low risk of violence and crime in the community,” the psychiatrist testified. He advised alcohol treatment and psychotherapy to address past trauma.
Against the odds, Cruz-Zavala’s petition prevailed in May 2018, with immigration Judge Alison E. Daw granting him relief under the Convention Against Torture, which protects individuals from deportation on the grounds that their removal would more than likely result in torture. For Cruz-Zavala, it was a major win. Then came the appeal. ICE prosecutors have the power to file an unlimited number of appeals. They are not afraid to use it.
Cruz-Zavala’s case was turned over to the Board of Immigration Appeals, or BIA, for review. There it would sit for the next two years. After 11 months in detention, Cruz-Zavala sought a bond hearing, asking that the burden fall to the government to prove that he was a flight or public safety risk. Among the letters of support and dozens of documents he submitted was a plan to participate in an alcohol rehabilitation program.
In May 2019, Cruz-Zavala’s bond requests were denied, with the court taking the position that he failed to prove that he was not a threat. Judge Daw retired shortly thereafter. The following month, after 13 months of silence, the BIA finally weighed in, finding that Daw had failed to indicate which of the two forms of protection under the Convention Against Torture she intended to grant to Cruz-Zavala. The board did not challenge the findings or evidence in the case. It was effectively a clerical error. The BIA sent the case back to Daw’s replacement, Judge Patrick S. O’Brien. Appointed by former U.S. Attorney General Jeff Sessions in 2017, O’Brien, a former assistant chief counsel in ICE’s Office of Chief Counsel, was among a wave of new immigration attorneys brought on by the Trump administration. According to a Reuters analysis, former President Donald Trump “filled two-thirds of the immigration courts’ 520 lifetime positions” with judges who “disproportionately ordered deportation.”
O’Brien, too, found that Cruz-Zavala was deserving of protection from removal on the basis of likely torture. Again, ICE appealed. Cruz-Zavala spent another year locked up.
Unlike the separation between courts and prosecutors in the criminal justice system, ICE prosecutors, immigration judges, and the BIA all fall under the same branch of government, the executive. “Our immigration prosecutors and our immigration judges effectively have the same boss,” Jorjani said. In late March 2020, Cruz-Zavala stepped out of that circular network for the first time, filing a habeas petition before the U.S. District Court for the Northern District of California. In addition to his risk of exposure to Covid-19, he argued that his incarceration was illegal because his bond hearing had been unconstitutional. The court agreed, sending the case back to O’Brien with orders to conduct a “constitutionally compliant” hearing. According to court filings, an ICE prosecutor made a brief statement in the hearing that followed. Pointing to Cruz-Zavala’s criminal record, the government lawyer said he was a “danger to the community,” had been so “for many years,” and should not receive bond under any circumstances. The judge asked no questions of Cruz-Zavala or Jorjani regarding the prosecutor’s allegations. The government did not put on a witness. Cruz-Zavala’s bond was again denied.
It was around this time, Jorjani says, that the case took a turn for the surreal. In July, the BIA responded to the latest DHS appeal, ordering O’Brien to redo the case from top to bottom. The board cited no errors in fact to support the do-over, nor did it challenge the conclusion of two immigration judges that Cruz-Zavala would likely be tortured if he were deported. To Jorjani, the BIA’s message to the court was clear: Come to the conclusion that Walter Cruz-Zavala is not deserving of protection from deportation.
The do-over order was unlike anything Jorjani had seen in more than 15 years of practicing immigration law.
Evidently the message was received. On August 24, 2020, O’Brien issued a new decision: Cruz-Zavala was not in fact likely to be tortured if he was deported. O’Brien arrived at this conclusion by reviewing the same body of evidence that he and Daw had looked at before. O’Brien leaned heavily on a report in Cruz-Zavala’s packet published by researchers at Florida International University titled, “The New Face of Street Gangs: The Gang Phenomenon in El Salvador.” The study was prepared for the State Department. O’Brien highlighted its objectivity and detail, claiming that it showed that in El Salvador “very few gang members are attacked or injured by police, let alone tortured.”
According to the FIU experts who wrote it, the judge fundamentally misread the report. “Based on the presented evidence and our knowledge of current country conditions, it can be argued with certainty that Mr. Cruz-Zavala is more likely than not to be tortured in El Salvador,” the authors said in a sworn statement the following month. Salvadoran security forces “maintain a large database of individuals with a history of gang affiliation” that is “generally used to detain active and former gang members while committing human rights violations.” As a recent deportee with a known gang history, Cruz-Zavala was “likely to be immediately detained by the police and sent to prison,” the experts said. There was “an extremely high probability (more than 51%)” that he would be “killed as soon as he arrives to El Salvador either by security forces or gangs.”
The do-over order was unlike anything Jorjani had seen in more than 15 years of practicing immigration law. It was “egregious,” she said, and called the legitimacy of the entire system into question. “You can present a case with your hands tied behind your back — which is what presenting a case while you’re detained is like — and win,” she said, “and that doesn’t count for anything because they can order you to do it over again.”
Last summer, Walter Cruz-Zavala fell ill. He tossed and turned at night, unable to sleep. He asked to go to medical. On August 10, he tested positive for Covid-19. Within weeks, nearly everyone in his unit had the disease. The infection was not unforeseen. Cruz-Zavala and others in his unit, like ICE detainees around the country, had staged hunger strikes to protest the risks that ICE’s operations were creating.
“People started getting scared,” he said. “They kept taking people out, bringing new people into the facility, and eventually people got sick.”
Though Cruz-Zavala recovered, Covid-19 cases continue to crop up at Mesa Verde and in ICE detention centers nationwide — according to the agency’s data, more than 12,00 people in ICE custody have tested positive for Covid-19 since the pandemic began. Nine have died and nearly 1,000 others are currently being held in isolation or are under close observation.
It was against this backdrop that Jorjani again asked the immigration court to order Cruz-Zavala’s release in September. He had been accepted into a full-time, in-patient, residential alcohol treatment program in Oakland and his probation officer, whose office was located just blocks from the facility, offered to double her supervision efforts. “In my letter dated April 23, 2020, I stated Probation would be conducting bi-weekly check ins with Mr. Cruz,” she wrote. “However, upon learning that the Immigration Court continues to be concerned with releasing Mr. Cruz to the community, I am committed to providing weekly check ins for as long as needed to further support consistent monitoring and supervision of Mr. Cruz.”
None of it was enough. Because O’Brien had vacated the protection against deportation, Cruz-Zavala was back at ground zero. It would take years to rebuild what he had lost. “[Cruz-Zavala] has the power to end his detention immediately,” ICE argued in September. “[He] could accept the August 24, 2020 decision as a final decision and be released from custody and removed from the United States.”
“It is his choice to remain detained,” a government lawyer said. “He should not blame anyone else for that choice or his past choices that led to his detention.”
In October, Jorjani filed a sweeping, 63-page writ of habeas corpus calling on the federal district court in northern California to assume jurisdiction over Cruz-Zavala’s case and order his immediate release. His ordeal had never been ruled on by an independent and neutral court. Jorjani hoped and expected that the district court would act swiftly and order his release, allowing him to pursue his immigration case as a free man. She also thought, at least at first, that a change in the White House might work in his favor.
On January 20, Biden’s first day in office, DHS announced a review of the rules that guide who the government prioritizes for immigration detention and deportation. Under Trump, that population included virtually every undocumented person in the U.S. Under Biden, the department’s acting secretary acknowledged that “DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States.” Enforcement resources would be directed into three areas: national security, border security, and public safety.
Cruz-Zavala did not meet the initial criteria. Jorjani saw a glimmer of hope. Then, in February, DHS released a revised public safety criteria memo. It included a new provision singling out individuals who had been “convicted of an offense for which an element was active participation in a criminal street gang” — Cruz-Zavala’s 12-year-old gang enhancement conviction, handed down following his U.S. government-funded indoctrination into MS-13, fit the bill. In a briefing to reporters, senior DHS officials described the decision to add the gang provision as a part of the fiber of DHS. “It’s always been part of our approach to public safety,” one of the officials said.
It can be difficult to explain to those who have not experienced it, Jorjani argued, but in the United States there exists a parallel carceral system in which indefinite detention is wielded as a legal weapon, access to an attorney is not guaranteed, and the prosecutors and the judges are on the same team. Within that system, the government routinely holds people against their will on the basis of actions that already resulted in a sentence served or charges that were dropped. “There’s supposed to be something called double jeopardy in this country,” Jorjani noted. “We don’t punish you twice for the same crime.” Not only is that the effective result in cases like Cruz-Zavala’s, she argued, but the experience of indefinite detention itself is also often weaponized to achieve the government’s ends.
Not once in the nearly four years that he has been in ICE custody has Cruz-Zavala been able to speak to any of the judges making decisions about his freedom.
“The government’s tactic cannot be: wear someone down by torturing them in detention so that they give up a case that is hard for the government to otherwise win,” Jorjani said. And yet, she argued, that was precisely what was happening in Cruz-Zavala’s case. “The Department of Homeland Security understands that power and abuses it,” she said. “And nowhere is that truer than Walter’s case, where he has a meritorious claim. It’s so meritorious that he’s won it twice.”
Late on the night of March 29, nearly six months after Cruz-Zavala filed his habeas petition, Koh returned her decision. She denied Cruz-Zavala’s core due process claims but agreed that his immigration judge had applied the wrong legal standard in denying him bond. Rather than ordering a new hearing, however, Koh instead ordered an immigration judge to reconsider the decision while applying the appropriate standard. It was effectively a denial in full, Jorjani said, because Koh’s ruling relied on the same judge — O’Brien — to revisit a question he had clearly already settled in his own mind. Jorjani called the order “shocking.”
Cruz-Zavala was shattered. He and Jorjani had poured all of their hope into the habeas effort. He was looking at the unfathomable reality of multiple years of continued ICE detention, versus deportation to a country where systematic torture and killing of people like him is entrenched, but where he would also have a slim chance at a free life. “At this point, Walter’s case represents a total justice failure,” Jorjani said. “It’s hard, I think, as a lawyer, to see these decisions and maintain a belief that Walter’s life matters to the court.”
There were levels to Jorjani’s despair. “The hardest part about all this is that Walter repeatedly sacrificed his own well-being by placing his faith in our justice system, a faith that an injustice shown would become an injustice remedied, but that’s not at all what happened,” she said. There was a personal component as well. Jorjani had spent countless hours listening Cruz-Zavala recount the most painful moments of his life. She had given interviews and participated in advocacy campaigns. She had done everything she could to show the court the person who she had come to know because, as she put it, “the system tries to keep out the humanity of people.” In the end, she had to get on the phone and explain to Cruz-Zavala that the one thing she had told him to hold on for had failed.
“It’s been one of the most intense and amazing experiences in my career to get to know Walter and to have the privilege and the honor of fighting alongside him,” she said. “I can’t even begin to summarize what he’s taught me about humility and grace and resilience and endurance and courage and patience.”
“I’m really grateful,” Jorjani said. “I’m really, really grateful to him for that.”
For the people who stood by him, Cruz-Zavala, too, felt a gratitude that he could scarcely articulate. “I don’t think that there’s any words that I could say to express what I feel about the people who’ve been helping me out all of these times — it’s just been amazing,” he said. He singled out Jorjani in particular. “I never tell her this,” he said, “but sometimes I feel like she believes in me more than I believe in myself.”
“This has been torture for me, mental torture for me, and I don’t want to keep suffering.”
Throughout our conversations over the past few months, Cruz-Zavala was open and honest about his life, even the hard parts. That remained true the last time we spoke, though the exhaustion and pain in his voice was evident. “This has been torture for me, mental torture for me, and I don’t want to keep suffering,” he said. “I don’t want to keep going through this type of pain. I just want to live.” Searching for the right words, he said, “I don’t know if you know about feelings where you feel so angry about something, so frustrated, that you even want to cry because there’s nothing you can do about it and you feel you like you’ve tried everything, done everything, and nothing works, and everything is a no.” Those were the feelings he was wrestling with now. “It gets to the point where it breaks my heart,” he said, “breaks my spirit.” I asked what he would say to the judges who he was never able to speak to, if given the chance. “I think I would say to the judge that honestly, I really believe, I truly believe, that I deserve another chance to stay in this country,” he said. “I feel like I have so much to still give.”
Life, Cruz-Zavala said, is based off experience. Some people can recognize when others make mistakes and have the foresight not to go down those roads themselves. “There’s people like that,” he acknowledged. “But in general, it’s life, you know? Life is living, making mistakes, learning, and becoming a better person,” he said. “Life is not a book that you read about it and you’re gonna learn about it. You actually gotta live life to learn.”
In late April, Cruz-Zavala’s family requested permission to visit with him while he worked through one of the most difficult and consequential decisions of his life. ICE denied the request, citing its Covid-19 safety protocols.