"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
An asylum seeker’s chances at protection hinge on numerous factors that often seem arbitrary — from location to nationality to individual judge assigned — according to a Union-Tribune analysis of immigration court records
By KATE MORRISSEY,
LAURYN SCHROEDER
AUG. 23, 2020
5 AM
For the world’s most vulnerable, protection in the United States has all but disappeared.
Wait times for asylum seekers at the U.S.-Mexico border that already seemed indefinite now seem impossible. Families struggle to find food and shelter to outlast a pandemic order with no end date.
Those who cross north are sent back to Mexico in a matter of hours — or even put onto planes back to the countries from which they fled — without any opportunity to explain why they came.
In its response to COVID-19, the Trump administration achieved what it long sought, a shutdown of the U.S. asylum system. And with new regulations introduced this summer, the administration has moved to squeeze out any real chance at refuge in case the pandemic order is lifted.
But even before the current president began his campaign against asylum in the United States, people often struggled to win protection — no matter how strong their cases appeared to be.
In its 40-year history, the system has chronically fallen short of its promise of safety.
RETURNED: PART II
The second in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The Trump administration has used statistics about grant rates to justify closing off access to asylum, saying that those who lose their cases are illegitimate asylum seekers.
The facts show a different story: Thousands of people turned away based not on the merits of their cases, but on the capriciousness of a system so riven with inequity that many outcomes seem little more than arbitrary.
A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.
. . . .
***************************
Read the rest of this eye-opening (for those not familiar with this broken, biased, and beyond dysfunctional system) article at the above link.
There can be no excuse for the “horror chamber” that this already broken, battered, and unfair system has devolved into. It will take genuine changes in expertise, attitude, courage, and intellectual integrity across all three branches of Government to get this system functioning in a fair, legal, and constitutional manner consistent with due process and our international obligations.
It also will require much better, more educated, more courageous, more practical, and more intellectually honest judges from the Immigration Courts (which must become independent from the Executive) all the way up to and including the Supremes.
Better judges for a better America! Life tenure means it won’t happen overnight. But, the process needs to begin now for our nation to survive and prosper!
We can’t achieve equal justice for all with so many judges who don’t believe in it, don’t have expertise in and a commitment to human rights, and don’t have the guts to stand up for the legal, constitutional, and human rights of all individuals coming before our justice system. That specifically includes the “most vulnerable among us” – asylum seekers and other of our fellow humans whose humanity and right to live seem to fall below the “radar screen” of the current Supremes’ majority!
Due Process Forever! “Dred Scottification” and complicity, never!
Kate Morrissey reports for the San Diego Union Tribune:
Two of the three asylum seekers who were supposed to show up for the first immigration court hearings under the “Remain in Mexico” policy did not make it across the border on Thursday to appear.
After the Homeland Security Secretary announced what she called a “historic” program, known officially as Migrant Protection Protocols, in December, many wondered — and worried — about the logistics of shuttling migrants back and forth across the border for court hearings.At least one of the people who had been returned to Tijuana after asking for asylum at the San Ysidro Port of Entry missed the court hearings because of what Assistant Chief Immigration Judge Rico Bartolomei called a “glitch” in the scheduling system.
Court cases for the program were supposed to start next Tuesday, but somehow cases got scheduled for this Thursday, Bartolomei explained. At first, the court tried to reschedule those hearings for Tuesday but realized it wouldn’t have a way to communicate that effectively with the asylum seekers in Mexico.
The issue was that when the court rescheduled to March 19, anyone who called its toll-free number to check for court date updates thought that the hearings would be on March 19. That happened in the case of one Honduran woman who had Los Angeles-based attorney Olga Badilla representing her.
Badilla explained to the judge that she had only learned the day before that the hearing had moved back to March 14 and that her client hadn’t found out in time to be at the port of entry at 9 a.m. She arrived a couple of hours later, but Customs and Border Protection officers wouldn’t let her into the U.S. for her hearing.
“She’s present at the port of entry and ready to come in,” Badilla told the judge, asking for the court’s help. “It’s an unusual situation given the circumstances.”
Aguilar said the judge should order the woman deported in her absence.
Bartolomei denied that motion, saying that the woman had received “insufficient notice” of the hearing. Instead, he scheduled a future date with Badilla to turn in the woman’s asylum application.
Though the woman was given another chance to show up for court, she ran into more problems down at the border. Her permit to stay in Mexico was on the verge of expiring in anticipation of her crossing into the U.S. for court. If she had crossed and returned again, she would likely get a new one. Without entering the U.S., she was about to become deportable from Mexico.
When court ended for the day, Badilla went to try to help her client.
The other person who didn’t show up for court, a 24-year-old man from Honduras, had also had his case rescheduled through the court’s glitch.
ICE attorney Aguilar again moved to have the man ordered deported.
Bartolomei pushed the ICE attorney about whether it made sense to order someone deported from the U.S. while they are still in Mexico. He asked if it made more sense to consider the person’s application for admission withdrawn.
According to immigration attorney Tammy Lin, a withdrawal would limit potential restrictions on the man’s ability to come to the U.S. in the future. A deportation order would make it much more difficult for the man to come to the U.S.
During the conversation, Bartolomei sighed audibly, weighing the options before him.
Then he decided to reschedule his case for the 19th to see if the man showed up then. Since he didn’t have an address to send the new hearing notice to, he gave it to the Department of Homeland Security to pass on to the man.
The one person who did show up did not have an attorney. Also from Honduras, the man arrived at El Chaparral plaza outside the port of entry well before 9 a.m. A volunteer from a legal services organization that supports migrants in the plaza every morning before they ask for asylum saw him and escorted him to the gate inside the port that marks the entry to the U.S.
He waited in line, shuffling down the spiral walkway in a mix of commuters, shoppers and friends returning from trips abroad. When he got to the front of the line, a Customs and Border Protection official held him to the side to wait for the other two who were supposed to come.
He was nervous, he said.
A few minutes after 9 a.m., several CBP officers and two plainclothes officials took him into the U.S. Officers from Immigration and Customs Enforcement transported him from the port of entry to the office building in downtown San Diego that houses the immigration court.
He arrived at the court before noon and sat in a corner of the back row of benches, head bowed.
When it was his turn to face the judge, he spoke softly into the microphone and watched attentively as Bartolomei explained each of the documents he had received.
Bartolomei asked him if he wanted more time to find an attorney.
Yes, the man replied.
The judge granted him another month to try to find someone to help him and told him he would likely be taken back to Mexico again.
“I know it will be difficult to try to get an attorney from there,” Bartolomei told him, urging him to try his best to find a lawyer to take his case.
When his turn was over, ICE officers quickly whisked him away, back to the port of entry.
***********************************************
Notice will continue to be an issue in this ill-designed process. It actually appears that it will be impossible to properly serve anyone at a “last known address” in Mexico. Thus, any in absentia hearings should ultimately be vacated for lack of notice and will have to be re-started. That’s what “ADR” is all about.
The ICE Attorney was both unhelpful and probably unethical when he insisted on frivolously moving for an “in absentia” order given the obvious scheduling and notice issues attributable to his agency’s choice of this “historically” goofed up and perhaps illegal method of proceeding. Unwillingness to assume any responsibility for their own frequent screw ups and predictably bad policy choices is certainly a “hallmark” of the Trump Administration!
Once of the things that made the Arlington Immigration Court run as well as it did during my tenure was the sense of justice, common sense, practicality, and overall cooperation and helpfulness of the ICE Chief Counsel’s Office in working with the Immigration Judges and private bar to “keeping the ball moving down the field.” Apparently deprived of such a professional approach by the mindless “due process and common sense be damned policies” of this Administration, today’s Immigration Judges face additional roadblocks in promoting efficiency and fairness in accordance with the law. No wonder the backlogs are growing exponentially even with more Immigration Judges on the bench!
Here’s how might a “due process and efficiency-oriented system” could have dealt with the same issues:
Work with the private sector to obtain local counsel for individuals who have passed the “credible fear” process;
Find out how long it will take the lawyer to prepare the application for asylum for filing with the Immigration Court;
Choose a compatable date for filing at the “Initial Master” from a computerized list of “available first Master dates” on Judge Bartolomei’s calendar made available by EOIR;
Release the applicant to a local nonprofit who will help insure that he or she understands the system and the importance of keeping attorney meetings and appearing before the Immigration Court as scheduled;
At the first Master, the attorney files the completed asylum application with Judge Bartolomei, and he assigns an Individual Hearing date;
Presto! A system that works, uses court and judicial time wisely, and promotes fair and efficient results.
Contrast that with the mindless system described above. The key: under the current system everybody has wasted time and effort, particularly Judge Bartholomei, but without getting any closer to assigning an actual Individual Hearing date than on the day the applicant passed “credible fear.”
That’s how Government-created “bogus emergencies” happen. It’s really important that folks like Kate keep reporting on the “nitty gritty” of the Trump Administration’s “malicious incompetence” and how it is destroying and degrading our immigration and justice systems on a daily basis.
Undoubtedly, this Administration will attempt to shift blame for its own predictable failures to the victims — asylum seekers, their lawyers, and Immigration Judges. It’s important that the Trump Administration be held fully accountable, both in the present and for history, for the consequences of their terrible White Nationalist restrictionist agenda.
Kate Morrissey writes in the San Diego Union-Tribune:
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:
The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.
Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.
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!
