Crossposted at NeverInOurNames.com
I had special reason to be at the Department of Homeland Security immigration courts recently. I was to testify in the case of a Muslim man who had been horrifically tortured in his home country. Confidentiality laws and ethics codes keep me from giving many details about this man or his story, at least in any identifiable sense.
It is a shame that the very laws put into place to help people, i.e., privacy and confidentiality laws, can, in certain circumstances, prevent some stories from being heard. What I'm going to do here is give an overview of my experience, and the drama -- unknown to millions -- that plays out for torture victims almost every day in 52 of our major U.S. cities.
Applying for Political Asylum
In a large West Coast U.S. city there is a jail and a courtroom that most don't know exists. It is run by the Department of Homeland Security (and formerly by the Immigration and Naturalization Service). Guards and metal detectors search everyone who enters the building. Around the corner of this drab, gray building, a line of immigration applicants wait to gain entry to an office that will extend their visa, take their application for a green card, or execute any of a number of other chores for those who are not citizens.
The applicants for asylum take their chances in one of a number of asylum centers/immigration courts around the country. A San Jose Mercury News study from a few years back found that justice for asylum applicants varied geographically:
The data revealed that of over 175,000 requests for asylum which were made to Immigration Judges, just under 30,000 (17%) were approved, less than 100,000 (56%) were denied, over 12,000 were abandoned and a little more than 37,000 were withdrawn. The study indicated that the Immigration Judges in some courts were much stricter than others. Ranked as "Unsafe Harbors" by the newspaper were the courts in Seattle, Los Angeles, Houston, Oakdale (Louisiana), Atlanta, Arlington (Virginia), Newark, Elizabeth (New Jersey), New York (Varick Street) and Detroit. More lenient courts included San Francisco, El Paso, Dallas, Harlingen (Texas), Miami, Baltimore, York (Pennsylvania), Philadelphia, Jamaica Wackenhut (New York), and Chicago.
Inside the DHS Courthouse
No cameras are allowed in the building, and I am surprised when my cell phone, with its little camera, keeps me from entry. I leave it with a small shop across the street, registering it with a merchant who runs a side business holding cell phones for a few hours for a few bucks a piece.
There is a jail on one of the fourteen or so floors. Down below, on the street, businessmen in suits, secretaries and clerks from sundry offices, shoppers, tourists, and scruffy streetpeople walk to and from work, into shops, coffeehouses, and lunchtime crowded cafes and fancy restaurants. Buses and taxicabs ply the streets. Flowers are sold in stalls nearby.
The prisoners here are immigration cases, many of them asylum applicants, kept in county jails around my fairly large Western state, then bussed to the DHS facility for the day of their hearing. The prisoners may have waited many months for this one day, spending their time in jails hundreds of miles from family, friends, or loved ones, housed with hardened domestic criminals, drug arrestees, as well as other immigrants incarcerated from around the world. The prisoners often speak no English, and are already traumatized from previous incarcerations in countries like Guatemala, Burma, Ethiopia, Russia, Yemen, China, Philippines, Mexico, Turkey, Jordan, India, Brazil... really almost any country you can imagine.
The asylum applicants come from all ages, classes, and nationalities, but the ones I get to see are usually very poor. They have been pretty evenly divided between male and female. My appearance in court is usually pro bono, as they have very little to pay. A local agency funds a reduced fee for their psychological evaluations. Attorneys also often work pro bono, or for next to nothing. Still, a number of applicants have been ripped off previously by unscrupulous attorneys or shady operators that prey upon the asylum and immigrant community.
I had been hired months before to undertake a psychological evaluation of a young man (age is withheld here). He had spent much of his young adult life in hiding from the security police of his country. He had been arrested and interrogated a number of times, been beaten, been suspended by his arms, among other atrocities. Bones had been broken. Loved ones had been left behind when he fled.
He came into the courtroom on a warm day, wearing a bright orange jumpsuit and shivering uncontrollably. He was fighting not to be sent back to his country, where he felt sure, like many other members of his family, he would again be tortured, or even disappeared. He had flown to the U.S. over a year ago, and has not known one day of freedom since, having been jailed upon arrival.
I have seen many other cases where the applicants, usually using a phony visa or other pretext, made it into the U.S., and then hovered in fear, afraid to present themselves to the government, believing they would be deported. They stay at the homes of relative, of distant family friends, in tiny studios at the back of churches, in skid row apartments above noisy liquor stores.
U.S. law states that an asylum applicant must make a declaration for political asylum within one year of arrival in this country. While this must have seemed reasonable to the Congressmen and Senators that drafted and passed this law, in reality, it doesn't take into account the severe emotional and physical trauma that prevents many asylum seekers from finding their way to the requisite government offices, or to an attorney.
Often they are penniless. They are usually deeply depressed, and culturally ignorant of U.S. society, much less its laws. Maybe they grew up in a refugee camp. Sometimes they learned that someone in an official uniform or office may be a member of a death squad. They are usually wracked with fear and dread.
A Day in Court
On this warm, early autumn day, the shivering applicant of whom I write had been waiting many months to get his case heard. This was the second time he would get a hearing in front of a judge; the first time, the judge found him not credible, which is the kiss of death in a DHS courtroom, as recent changes in the law have made such judgements UNAPPEALABLE in a higher court. But this judge was convinced by the applicant's attorney to essentially reopen the case before final determination.
According to the provisions of the recent Real ID bill (pardon the narrative detour):
Section 101 of the bill is entitled "Preventing Terrorists from Obtaining Relief from Removal"....
Asylum adjudicators and Immigration Judges making credibility determinations will make decisions viewing the "totality of the circumstances" and all relevant factors including "demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements... the internal consistency of each such statement, the consistency of such statements with other evidence of the record... and any inaccuracies or falsehood in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor."
The last part regarding whether an inaccuracy needed to be relevant to an asylum claim has been one of the most controversial provisions in REAL ID. According to immigrant rights advocates, minor inconsistencies are not unusual for asylum applicants who have experienced traumatic life events....
Courts will now be barred from reviewing discretionary decisions regardless of whether made as part of a removal process.
The final negotiated version of the bill included a provision stating that while there is no presumption of credibility, if no adverse credibility determination is explicitly made by at the time of the asylum determination, the applicant or witness shall have a rebuttable presumption of credibility on appeal. [emphasis mine]
The date for the hearing had been set long in advance. I had met the client and evaluated him many months before. He was in terrible emotional health even then, with many of the symptoms of post-traumatic stress disorder and depression. I could only wonder what had happened to him in the ensuing months, as I heard he had been moved to various different county lock-ups throughout the state, for reasons unknown.
The courtroom is very small, having only two rows for seats. There is an adjoining waiting room, with formica floor and plastic wait chairs. The client's family has come to give support, and when the client enters the courtroom, hunched, shivering, hands bound in cuffs and accompanied by a guard, this man who has never been convicted of any crime smiled weakly, evidently happy to see his family there. While afraid, I could see he had some hope.
The government employs its own staff of attorneys. The job doesn't pay as well as the private sector, and many of the attorneys I've seen are young and evidently at the beginning of their career. Everyone often seems to know each other well -- defense attorneys, government attorneys, judge, interpreters, courtroom staff (which is minimal in these courts). They may chat between times "on the record". When they are on the record, the sessions are audio taped. There are no court reporters.
On this day, the government attorney bursts into the courtroom, arms filled with books, briefs, and other papers. In a rushed voice, the DHS attorney announces that the attorney who was handling the case cannot be at trial today. The reason can't be given. He's on a secret case. Even the judge cannot get the facts. It's like a scene out of Kafka. The family, the defense, the client, everyone must return some other day. It doesn't matter that the day was scheduled months ago. There will be no hearing today.
In a confused and hesitant way, the government and defense attorneys manage to squeeze in time for another hearing in a few days. The judge is amenable; he wants the case to be heard. It's not clear that the family can make it back. I cannot make it back. Instead, I will testify by telephone.
[To be continued]