Tag: “A Culture of No”

BIASED COURTS: EL PASO’S “HANGING JUDGES” ARE DEATH TO ASYLUM CLAIMS, EVEN THOSE THAT ARE BEING GRANTED IN MANY OTHER IMMIGRATION COURTS – The Due Process Problems In The U.S. Immigration Courts Go Much Deeper Than Jeff Sessions’s Outrageous White Nationalist Policies! — Author Justine van der Leun Presents A Meticulously Researched, Moving Report Of Unfairness That “Scotches” All Of The DOJ/EOIR “Bogus Excuses” & Exposes The Deep, Unacceptable Bias That Makes Our Immigration Courts A National Disgrace!

https://www.vqronline.org/reporting-articles/2018/10/culture-no

Here’s an excerpt from Justine van der Luen’s much longer article “A Culture of No,” published in the Fall 2018 issue of VQR (quoting me, among many others).

. . . .

“Here in the US, there is democracy, but we still have fear,” he said. “I got asylum but if they want to make a problem, they can do it.” He was terrified that the smallest misstep, no matter how apparently meaningless, how accidental or random, could signal the difference between freedom and imprisonment—and from there, between life and death.

To beat the extreme odds in El Paso, Isaac had spent fifteen months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro bono hours on his appeal. This feat required an enormous amount of translated and notarized evidence discretely sent overseas by family members in Syria, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognized rights meant to protect the persecuted?

As Isaac started over in America, other asylum seekers I had been tracking were less fortunate. Jesus Rodriguez Mendoza, the Venezuelan, had been transferred to a notorious detention center in Miami, which his legal team believed was punishment for his public protests; he remained on the El Paso docket, but now was physically separated from his lawyers, his fourth parole request denied. Berta Arias, the Honduran grandmother whose relief Judge Abbott had granted and then quickly rescinded, lost her appeal and was deported without the granddaughter she had raised. The Central American man whose brother, with an identical case, had won protection in New York City, remained in the Camp. It wasn’t only those from the Americas who were out of luck. Cambodians, Cameroonians, Guineans, and Kenyans I’d followed all had their claims denied; they had since been deported or were waiting on appeals.

One young Central American woman who had been repeatedly raped had managed to win relief, but only after her lawyer, unable to bear the thought of her client being sent home to be violated yet again, paid over $2,000 from her own pocket to fly two expert witnesses into Texas to clinch the case.

“I think in El Paso, they want to see that people died,” a young Salvadoran asylum seeker told me. He was an Evangelical Christian, who preached to local kids. Members of MS-13 had shot at him with a machine gun, killing a pedestrian who happened to be standing nearby, and kidnapped and murdered his fifteen-year-old friend who had joined him in proselytizing. The young man, his mother, and his brother made their way to the US. Despite having a devoted pro bono lawyer, he lost his asylum case, as well as his appeal, on the grounds of credibility (the judge believed he was simply an economic migrant who had invented the threats); his mother also struggled to find legal relief in El Paso.

“Maybe if I died, and then my mom asked for asylum, maybe then she can get protection,” he told me calmly. “They tried to kill me, but I didn’t die, so it’s not good enough for them.”

Justine van der Leun

Justine van der Leun is the author of several books, including We Are Not Such Things (Random House, 2016), a New York Times Editors’ Choice and Spectator Book of the Year. Her work has appeared in theNew York Times, Harper’s, the Guardian, and Oprah Magazine. She is an International Women’s Media Foundation reporting fellow and a grantee of the Investigative Fund at the Nation Institute.

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I encourage you to read the full article at the above link, which is accompanied by some great original illustrations by Alan Vest!

Justine highlights the real role of attorneys in our asylum system. Many of them are working on a pro bono or low fee basis or actually paying out of their own pockets! They persist under horrible working conditions and often rude, insensitive, and unprofessional treatment from judges and other government officials that would persuade most other professionals to take up another line of work. The cases are complicated and (unnecessarily) fact intensive, often requiring not only extensive research and legal knowledge, but also skilled use of expert testimony and sources translated from foreign languages.

In courts like El Paso, getting a fair result in an asylum case too often depends on making the record below and then taking an appeal — the latter itself a time-consuming “hit or miss” proposition depending on the BIA “panel” (it could be a single judge) or the Circuit in which the case arose (sadly, the 5th Circuit is notorious for taking a cavalier and tone-deaf attitude toward the law and fundamental fairness in immigration matters).

Indeed, conscientious, dedicated attorneys are far more interested in making the system function in a fair and efficient manner consistent with our Constitution than the DOJ politicos who run today’s broken court system.

Compare the reality with the intentionally false and totally disingenuous picture painted by our White Nationalist Attorney General Jeff Sessions. He refers to “dirty lawyers” who are “gaming” the system.

Apparently, Sessions’s view of “gaming” means providing vigorous and effective representation and forcing him and some of the anti-asylum judges working for him to comply with asylum law!

It’s also painfully clear that no unrepresented asylum applicant would have any chance whatsoever of receiving fairness and Due Process in El Paso.

But, instead of working with the private bar to facilitate representation and repair the damage to the Immigration Courts, Sessions has gone to great lengths to prevent effective representation of asylum seekers. He has arranged for the detention of asylum seekers in horrible conditions  in obscure places where there are no lawyers; he has “speeded up” the system to make it more difficult for lawyers to effectively represent their clients; he has used unconstitutional intentional family separation to duress individuals with valid claims into abandoning them; he has made pejorative remarks about asylum seekers and their lawyers in front of Immigration Judges; and he has manipulated the substantive law against bona fide asylum seekers.

Yes, many, many Immigration Judges “buck the odds” to honor their oaths of office and guarantee fairness and Due Process for asylum seekers and other respondents. Justine points out how results differ dramatically in Immigration Courts where judges apply the law and treat respondents and their lawyers in a fair and impartial manner.

So, how can I be such a strong advocate for independence of a system that I know is badly flawed? Those of us who have actually worked in the system know that it can’t be fixed overnight.

But, getting the system out of the hands of Sessions and the DOJ politicos is an absolutely essential first step. With the advent of a true merit judicial hiring system, such as that recommended by Professor Andy Schoenholtz and others, and the establishment of a more diverse and representative Appellate Division that acts like an independent Federal Court to rein in those judges who are unfairly treating asylum applicants and force them to correctly and fairly apply the law, there will be a return of meaningful judicial dialogue and deliberation which leads to progress over time.

Notably, in Isaac’s case, the system actually worked! After many months of expensive, wasteful, and unnecessary detention and an incorrect decision below, the BIA summarily corrected the Immigration Judge’s clearly erroneous denial of Isaac’s asylum case. But corrective action by the BIA to bring anti-asylum judicial “outliers” under control is exactly what Sessions has disabled in his decision in Matter of A-B-. He basically encourages “worst practices” and enables biased Immigration Judges while criticizing the BIA’s modest attempts to bring legality and order to an out of control system. What an outrageous perversion of justice and Due Process by someone who constantly makes bogus claims to be “enforcing the rule of law!” 

Additionally, by returning control over dockets and court administration to sitting judges, rather than non-judicial DOJ politicos and their agency subordinates, an independent Immigration Court can make progress toward reducing backlogs while promoting, rather than “demoting,” Due Process.

The current Immigration Court System is a farce that should outrage and disgust every fair-minded American! It will continue to malfunction and deny Due Process until we have an independent Immigration Court where all judges are required to  respect the Constitution and the individual rights of those coming before them.

Join the “New Due Process Army” and force the Immigration Courts and the Article IIIs to live up to their unfilled promise of “guaranteeing fairness and Due Process for all!”

PWS

10-09-18

 

Related posts:

  1. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?”