The judge is your destiny in immigration court
July 10, 2019The immigration court system is a unique institution. Indeed, it is not really composed of courts in a traditional sense of the word. There is no right to an attorney, and decisions are made at the sole discretion of a judge. Appeals are possible, but they are often in reference to administrative guidelines, and the Attorney General has the authority to change those guidelines. The whole operation is under the Department of Justice’s Executive Office for Immigration Review (EOIR) - not the federal court system. As a result the Attorney General can issue new rules, hire judges and change the process part of “due process” with near unilateral authority. Importantly, the system is designed to engage in administrative review of civil cases. It is not a criminal court, and the people before the judges are not there facing criminal charges. And yet, the people are often treated as criminals, and judges may engage in punitive decision making.
There is a backlog of 900,000 cases. A backlog that expanded significantly under Trump’s first AG, Jeff Sessions, who, among other things, restricted the rules under which judges could clear their dockets. In doing so, he set in motion a review of 350,000 cases already taken “off-docket.” Sessions then pushed a quota for clearing cases, 700 a year per judge, that guarantees a failure to treat each case with the attention required.
Among the more challenging cases judges determine are asylum claims. In fiscal year 2018, the EOIR reviewed 42,200 asylum cases (this number may double in FY 2019) and approved asylum in 35 percent of those cases - the lowest approval rate in 20 years. For Central Americans, the asylum approval rate was even lower than 35 percent: El Salvador, 23.5 percent; Honduras, 21.2 percent; Guatemala, 18.8 percent. The chart above suggests that there is a relationship between the quantity of cases and the denial rate - the higher the number of cases, the higher the denial rate. A trend, that if it continues into this year, will likely see denials increase even more.
Judges operating in this system have too many cases, increasingly arbitrary rule-making behind them, and are operating in a highly politicized environment. What could go wrong? If you are an immigrant seeking asylum, quite a bit. Indeed, whether or not one gets asylum, depends not just on the rules - Trump has made this harder, which explains the overall drop in asylum approvals - but what judge you end up in front of. The difference in asylum approval rates across courts and individual judges is enormous. The judge is “your destiny.”
To get a sense of what this means for people stuck in this system, I strongly encourage folks to read Gabriel Thompson’s article in the July edition of Topic Magazine, “Your Judge is Your Destiny.” Thompson profiles judge Agnelis Reese, who presided over 200 asylum cases over a five year period - and denied every one of them. Though an extreme example, the story gives a strong sense of the arbitrariness that constitutes “due process” in immigrant court proceedings.
In 2008, for example, a Government Accountability Office study found that asylum seekers in Atlanta were 15 times more likely to be denied asylum than in San Francisco, and eight times more likely than in New York City. A follow-up study, in 2016, reported that little had changed. And a 2017 investigation by Reuters, which analyzed more than 370,000 immigration court cases across the country, concluded that whether a person is deported or not “depends largely on who hears the case, and where.” One attorney with the Southern Poverty Law Center, speaking to the Christian Science Monitor in April, was more blunt: “Your judge is your destiny.”
Thompson’s article does a great job of integrating the stories of people that come before Judge Reese and the work of attorney Homero Lopez, Jr., who represents people in the Pine Prairie detention facility in rural Louisiana who come before Reese’s court, with background information on the court system and detention. One particular case stands out:
"S" explained that he was taken to Karshali prison, in the Eritrean capital of Asmara, where he was beaten daily for six months. Reese asked if he had suffered any other harm. While detained at Pine Prairie, S. had disclosed to a doctor that he had been sexually molested at Karshali. “I’m embarrassed to tell this. It’s very hard for me,” S. told Reese. The court took a break and went off the record. When the hearing resumed, S. explained that two soldiers at Karshali had taken him into a cell and “covered my nose with plastic, and they inserted their genital organ in my mouth.” As they did so, he told Reese, they said, “Where is Jesus to save you?” He said guards did this on three separate occasions, and also inserted a stick into his anus.
Reese asked if he had ever told anyone about this before revealing it to the doctor at Pine Prairie. “I did not,” he said. “This is very shameful for me to tell.”
Later, S. said that, despite daily beatings, he refused to convert to Orthodox Christianity. “And every time you said no?” asked Reese.
“Yes, based on Matthew 10:22,” he replied.
“I didn’t—sir, I’m not asking you to quote scripture,” said Reese.
“Jesus is asking me to talk for him.”
Reese snapped. “And when you lied to the asylum officers or failed to disclose your sexual abuse, what do you think Jesus thought about that?” The judge followed that up with a lengthy diatribe, chastising S. for not revealing the abuse earlier.
"S" testified that he then spent 12 years at a forced-labor camp near the Sudanese border until he escaped. He didn’t know the name of the prison, only that it was near a military base called Sawa. Reese found his lack of knowledge of the prison’s name implausible, though if she had looked at a map of secret prisons in Eritrea published by Amnesty International, she would have found one at Sawa, which is reported to hold religious prisoners of conscience. Though he continued to refuse to renounce his faith, S. explained he began to pray aloud to various saints, as Orthodox Christians in Eritrea do, instead of directly to Jesus, so as to lessen the attention guards paid him.
“Well, wasn’t that a lie?” Reese interjected. S. answered that after a good friend died in prison, he had begun to lose hope.
“Do you know what Corinthians 15 and 54 says?” Reese asked, now asking him to quote scripture. S. apologized to Reese, saying that he didn’t remember.
“It says to be steadfast and unmovable and always abounding in the work of the Lord. So starting to pray to the saints, which you said you no longer believe in, that doesn’t sound steadfast. Does it?”
I read the transcript three times. I try to imagine being in S.’s situation, struggling to recall a particular passage of the Bible and then being lectured about my lack of faith. What bearing does such a line of questioning have on an asylum claim? What other purpose does it serve Reese than to assert her dominance over another, in a tiny courtroom with no observers? My thoughts turn to Trump, who has ridiculed asylum seekers, and to former attorney general Jeff Sessions, who has described the asylum system as “subject to rampant abuse and fraud.” Both men would no doubt consider Reese’s record a model for judges across the country.
Reese denied asylum, saying “S” lacked credibility - which underscores one of the more problematic aspects of judicial authority in these cases. The judge becomes the sole interpreter of credibility, and if a judge has any doubts about one’s story, this can be used to deny asylum. In such a system, where one can hardly stop in the process of fleeing to secure affidavits and documentation about your individual case, one is literally at the whim of a judge’s predisposition to believe, or not. Under the Trump administration the entire edifice of enforcement is based on the argument that people are gaming the system, asylum claims are largely bogus, and harsh treatment is needed to deter people from even trying - and these folks get to pick immigration judges.
Due process indeed.
Read Thompson’s full article here.