Category: Judge Michael Baird

Constantin Bakala and his family have survived kidnapping, torture, rape, poison and a shipwreck.

Now, faced with the complexities of the U.S. immigration system, they may be on the verge of defeat.

Bakala, 48, and his family fled their home in the Democratic Republic of Congo in late 2016 after they were targeted for Bakala’s participation in an opposition party that promoted democracy in the country, according to his wife.

After traveling through more than 10 countries, the family arrived at the San Ysidro Port of Entry in November 2017. Bakala was separated from his wife and seven children and sent to an immigration detention center in Georgia while they were released to live in the San Diego area, a common practice at the time. He hasn’t seen them since.

Because they were separated physically, their cases were also handled separately in immigration court. Since the federal government prioritizes detained cases, Bakala’s finished before the family’s even began, according to their attorney.

Unable to find an attorney to represent him at the detention center in rural Georgia and with little money to even pay for phone calls to the outside world to try to get help, Bakala faced by himself an immigration court known for being tough on asylum seekers. Judge Michael Baird, who heard his case, granted 11 of the 152 asylum cases that he decided between fiscal 2013 and 2018, records show.

Bakala lost.

He tried to appeal the case by himself and was denied that as well, according to court records. Now the family, with the help of a San Diego church, has found an attorney to help him, but it may be too late.

He is convinced that if he returns to the Democratic Republic of Congo, he will be murdered by his own government.

Bakala’s party membership card shows he was part of the Rassemblement des Congolais Démocrates et Nationalistes, or RCDN, which opposed former president Joseph Kabila’s maneuvers to stay in power past his term limit. When Bakala wasn’t at his job at the Ministry of Health, he worked with the party’s youth and advised them on how to demonstrate peacefully against the ruling party, his wife Annie Bwetu Kapongo said.

Bwetu Kapongo tells their story slowly, haltingly, sometimes with painful detail and sometimes in circles, a symptom of the trauma she carries from what happened.

She remembers when her husband first told her about getting threatened, and she remembers the day he went missing in 2016.

When she went to the police to ask for help finding him, she was locked in a room that reeked of urine. Later, three policemen came in, beat her and raped her. She tried to stop them and pointed out that she was pregnant.

The men didn’t care, she said. She ended up losing the baby.

When she was eventually able to return home, her husband was still missing. The two stores she owned, one that sold fish and one that sold cakes and juice, were broken into and robbed by people looking for her husband, who had by this point escaped where he had been imprisoned and tortured, according to his attorney.

One night, Bwetu Kapongo woke up to the family dog’s aggressive barking before hearing it abruptly stop. They found the dog dead the next day.

Another night, she and the children got sick. Their heads were spinning, and they were vomiting. Eventually, they found a tool someone had used to release poison into the house, she said.

Finally, one night she heard a knock on her window. It was her husband.

Aided by people he’d brought to help the family, they scooped the children out of their beds while they were sleeping and fled in a boat down a river to the Republic of Congo, where the people helping them paid for their hotel, Bwetu Kapongo said.

They waited a couple of months there until they had travel documents to get to Brazil and left in early 2017 to begin a grueling journey to the U.S. border.

“We came because America respects the law, and they know how to protect people,” Bwetu Kapongo said through a translator.

In each of the countries they passed through, officials told them that they could not stay, she added. They were sent from Panama back to Colombia when they tried to get across the border by boat and ended up having to make the grueling 6- to 7-day walk through the jungle to Costa Rica.

In Costa Rica, they found a boat that would take them to Nicaragua.

After they’d been on it for about 45 minutes, Bwetu Kapongo heard shots fired at them. She told her children to lay down. Then, the boat broke, she said, and it began to sink.All of a sudden, her youngest child Joseph, who is now 5, was no longer in her arms.

She started to drown.

“Is this a nightmare? Is this real? Is this happening?” she recalled asking the darkness that surrounded her.

She felt other bodies in the water, hands pushing her head down as they tried desperately to reach the surface. She felt someone clutch her neck. It was David, her 12-year-old son.

When a rescue boat pulled her to safety, she found her 17-year-old daughter Marie Louise. Bwetu Kapongo began to pray, crying out the names of her five other children and asking God to find them. Her husband was soon rescued from the water and prayed with her.

When rescuers noticed bubbles moving in the water, they found Joseph along with 8-year-old Moses and 10-year-old Augustine clinging to a rope and pulled them to safety.

Emmanuel, her 15-year-old son, had been carried further away into the water with 14-year-old Daniel. They found a life preserver that had been thrown into the water and clung to it, bringing with them two girls from another family who were also nearly drowning.

When Emmanuel used the last of his strength to cry out, rescuers found them, Bwetu Kapongo said. Two people who had been on the boat died, one adult and one child.

Though the family survived, all of the documents and photos that could have been used as evidence were lost in the water.

They would have to journey by boat two more times between Costa Rica and Nicaragua before successfully making it the rest of the way up to the U.S. border.

Bwetu Kapongo said she expected to receive “protection and respect” when they arrived. Instead, her husband was quickly taken away.

It is only when she reaches this point in the story that she begins to cry.

She wouldn’t hear from him for about a month. He told her that he didn’t know how to find her, that it took that long for officials to give him information about where she was.

The family’s attorney Julie Hartlé said the family’s story is “horrific but not unusual.” Other attorneys she knows have had similar cases.

“This family meets every criteria. They were persecuted for being democracy activists, kidnapped and tortured by their own government,” Hartlé said. “It meets the exact definition of asylum for political persecution. It should’ve been straightforward. They were able to use the detention system against them.”

Bakala had to fill out his asylum application in English, a language he does not speak well. Though he told the judge verbally about three times he was taken by police, how he was beaten, interrogated and held without food, he only put information about one of the incidents in his application.

“That sounds like a pretty bad event,” the judge said in his ruling of one of the incidents Bakala described. “Unfortunately, it is never mentioned anywhere in the respondent’s application for asylum.”

The evidence that Bakala was able to gather and present — including a notice from his political party about his disappearance, another notice that the ruling party was looking for him, his voter ID card and party membership card — was not translated into English, so the judge said he couldn’t consider it, according to court records. He found Bakala’s story not credible.

The Executive Office for Immigration Review said it does not comment on judges’ decisions.

Neither Immigration and Customs Enforcement nor Customs and Border Protection were able to respond to request for comment in time for publication.

As immigration officials prepared to deport Bakala, attorneys filed emergency motions to temporarily keep him in the U.S. to try to reopen his case with new evidence. Last week, the 11th Circuit granted him a stay until Friday.

In the meantime, members of the church helping the family here in San Diego are planning a protest outside of the federal building at noon on Thursday in support of Bakala.

Bwetu Kapongo said the most important thing for her is protection for her children.

“He sacrificed his life to protect his kids,” she said in French. “If we hadn’t done what we did, they would already be dead.”

Beyond that, she wishes for her husband’s return. She tries to hide her exhaustion and her tears from her children, but she doesn’t think she can raise them alone.

“After the mountain I went through, I’ve got no more strength,” she said.

******************************************

So, how might a real judge, one committed to guaranteeing fundamental fairness, due process, and properly applying the generous dictates of U.S. asylum law have approached this case?

First, Bakala comes from a country, the Democratic Republic of Congo (“DRC”) which is one of the most repressive regimes in the world, where persecution is rampant. For example, the DRC received a score of 17 on a scale of 100 in the latest Freedom House freedom rankings.

Here’s a quote from the most recent U.S. State Department Country Report summarizing the daily horrors of life in the DRC:

Therefore, knowing that Bakala comes from a notorious “refugee producing country,” the Immigration Judge should have insisted as a matter of due process and fundamental fairness that the case be continued until the respondent could get the assistance of a competent lawyer to fully and fairly present a case for saving his life.

Asylum law has been made intentionally and unnecessarily complicated by a politicized system run with a strong enforcement bias; statistics, as well as experience, show that unrepresented individuals have virtually no realistic chance of success, particularly in a system run by an Administration clearly prejudiced against them. Human lives become mere “case completions.”

Second, Bakala’s wife also appears to have a strong asylum claim in her own right.  If granted, he could also have been protected as a derivative asylee under his wife’s application. Therefore, unless ICE were basically willing to stipulate to an asylum grant, proceeding with the cases separately was presumptively unfair. A judge committed to fairness, would have “pushed” the ICE Counsel on why this family’s cases were not being heard together.

Third, to justify an adverse credibility finding under the statute and BIA precedents, the judge’s ruling must demonstrate significant discrepancies or omissions, provide cogent reasoning, and carefully consider and give reasons for not accepting the respondent’s explanations for any problems. This judge’s ruling appears to have “flunked” all of those tests. The idea that a detained unrepresented individual’s omission of an event from the asylum application is a cogent basis for finding him not credible is facially absurd. That’s particularly true where the respondent is not a native English speaker and is held in detention where his ability to prepare, or, indeed, to even understand what is required for a successful asylum application, is intentionally impaired.

Moreover, a simple reference to the most current State Department Country Report (quoted above) would have shown the judge that the respondent’s testimony was highly plausible in light of known country conditions.  Indeed, persecution, torture, and abuse are daily occurrences in the DRC.

Additionally, the judge violated due process by requiring a detained individual to get translations of key corroborating documents. It’s simply not possible in most cases. How is a detained unrepresented individual going to find a qualified foreign language translator in the Stewart prison? A judge doing his job fairly would have asked the respondent to summarize the documents and accepted a “proffer;” or he could have had the documents read into the record by the interpreter.

For the purpose of a detained adjudication, I would have assumed that the documents were what the respondent said they were and acted accordingly. If the DHS wanted to challenge the decision, they could have the documents translated.  Just one of many problems in purporting to conduct “due process hearings:” in place where due process often can’t really be achieved.

Then, the “rubber stamp” BIA (a/k/a the “Falls Church Adjudication Center”) also “tanked” by not applying its own precedents which should have resulted in a finding that the Immigration Judge’s specious reasoning was “clearly erroneous.”

I heard a number of asylum cases from the DRC during my time on the bench in Arlington. I doubt that I denied any except for individuals who were aggravated felons, engaged in persecution of others, or had provided material support to a terrorist organization. Even those who failed to establish asylum eligibility often had valid claims for protection under the Convention Against Torture, given the prevalence of government sponsored or endorsed torture in the DRC. Most DRC asylum cases in Arlington were well-represented, well-documented, and either largely unopposed or not appealed by ICE.

Even without a lawyer, it appears that Bakala’s testimony was credible under the circumstances and that he suffered harm that should have warranted a grant of asylum on account of political opinion based on known country conditions. At one time in Arlington, a case like this with representation probably could have been granted largely by stipulation, with brief testimony, on a “short docket.”

That’s how cases can “move” on the Immigration Court’s crowded dockets without compromising due process or fundamental fairness. Instead, this Administration encourages a biased “haste makes waste” approach, issues statements of strong prejudgment against asylum seekers and their attorneys, motivates judges to cut corners, and enables judges to look for “any reason” to deny asylum and crank out final orders of removal. It’s a “cavalcade of worst practices!”

While some judges courageously resist and insist on “doing the right thing,” others choose or feel compelled to “go along to get along” with the Administration’s unethical (and incompetent) administration of these so-called “courts.” Indeed, today’s Immigration Judges are not even properly trained on how to correctly adjudicate and grant asylum under the generous standards mandated by the law, the Supreme Court, and even the BIA’s (seldom followed) precedent supposedly implementing generous standards following the Supreme Court’s admonishment. It’s an exercise in extreme intellectual dishonesty.

Allowing serious, “life or death” cases to be tried in places like Stewart, notorious for being the home of unsympathetic judges and an inherently coercive atmosphere, intentionally located in and out-of-the-way place where it is hard for attorneys to participate, is a stain on America.

The DOJ has abandoned any semblance of running its “wholly owned courts” in a fair and constitutional manner. Congress, ultimately responsible for creating and countenancing this mess, has long abdicated its duty to establish an independent system that complies with Due Process.

Article III Judges also have been largely complicit in allowing this pathetic imitation of a “court” system to continue operating in a fundamentally unfair and unreasonable manner and spewing forth skewed, unjust, often unlawful, and sometimes deadly results. It’s a national disgrace!

Sadly, the individuals being abused by the Immigration Court system are some of the weakest and most vulnerable among us. That’s what allows such systematic injustice to operate “largely below the radar screen.” However, the individuals who are participating in and enabling such outrageous contempt for the rule of law and human dignity, and thereby violating their oaths of Federal office, will not escape the judgment of history.

Fixing this unfair and intentionally broken system is well within our power as a country. It could be done for much less than $5.7 billion. Put an end to the “New American Gulag” and  the “theater of the absurd” masquerading as a “court” that operates within its bowels!

PWS

03-01-19