For Asylum Seekers, Due Process Is Hard to Find
With immigration judges under the purview of America’s top prosecutor, the attorney general, and with parole decisions in the hands of the Department of Homeland Security, lawyers feel asylum seekers face an uphill and often insurmountable battle
Flora boarded a red-eye flight from San Francisco to Atlanta earlier this month to attend a hearing that her attorney feared would be futile for both her and the U.S. government.
Flora, a 19-year-old Mayan Mam woman who struggles to walk because of a disability she and her attorney said was caused by persecution in Guatemala, flew more than 2,000 miles to report in front of an immigration judge with a recent 95.8% asylum denial rate. The immigration court didn’t provide an interpreter who spoke her regional dialect, so Flora couldn't even express herself.
"I never thought that I would suffer," Flora told NBC through an interpreter. "I never thought I would feel sad or frustrated in front of a U.S. judge."
U.S. & World
When Flora arrived in Georgia for her May 17 hearing, she could at least wait with her attorney Alexandra Bachan at a cafe instead of at Irwin County Detention Center, a local detention facility where she had previously spent seven months.
When Flora was still detained at Irwin, she said she tried to call her attorney multiple times per day for a month but the line inevitably dropped (U.S. Immigration and Customs Enforcement said Flora made more than 200 calls at Irwin in December and January, and that many of the calls made to her attorney indicated that Flora hung up before the call connected). Bachan, who asked NBC not to use Flora's last name to protect her privacy, flew to Atlanta to secure her client's release on bond in January.
The obstacles Flora has endured while seeking asylum in the United States resonate with immigration attorneys across the country. They say unfair parole and bond practices that keep asylum seekers detained long after they demonstrate a credible fear and immigration judges who do not seem impartial or independent have created an environment where violations to due process are rampant. With immigration judges under the purview of America’s top prosecutor, the attorney general, and with parole decisions in the hands of the Department of Homeland Security, lawyers feel asylum seekers face an uphill and often insurmountable battle.
"I’ve never seen such due process violations as I do in immigration courts, and just really what I would consider an absence of justice,” said Anne M. Rios, an attorney with Al Otro Lado in California.
"There is no longer, it seems, a right to due process," said Luz Lopez-Ortiz, a senior supervising attorney at the Southern Poverty Law Center.
SPLC and the American Civil Liberties Union of Louisiana on Thursday filed a complaint in the District of Columbia concerning the New Orleans ICE field office, claiming its "blanket denials of parole" under President Donald Trump have deprived asylum seekers of liberty without due process of law — in other words, fairness in legal matters. The field office, which exercises control in Alabama, Arkansas, Louisiana, Mississippi and Tennessee, accepted fewer than 2% of parole requests in 2018. That’s in stark contrast with 2016, when the field office granted parole in 75.9% of cases, according to ICE data.
Asylum seekers who demonstrate a credible fear may be granted parole by DHS if they can establish their identity and prove they are not a security or flight risk.
The suit, which has been filed in relation to the ACLU’s Damus v. Nielsen case challenging parole practices elsewhere, is meant to compel federal immigration authorities to ensure asylum seekers do not languish indefinitely in detention. All of the plaintiffs came through a port of entry and demonstrated a credible fear of persecution or torture, according to the complaint. Though a decision would only pertain to the New Orleans field office, Laura Rivera, an SPLC attorney representing the plaintiffs, said she hopes the lawsuit will more broadly enforce the rights of asylum seekers to a fair and humane process.
But drawn-out detentions are only one of several hurdles stacked against asylum seekers. In April, representatives of the American Immigration Council and the American Immigration Lawyers Association filed an administrative complaint regarding immigration judges in El Paso, Texas, detailing behaviors they claimed represented “a systemic pattern of dysfunction and lack of meaningful oversight in the U.S. immigration court system at large.” They found that immigration judges at the El Paso Service Processing Center immigration court placed arbitrary page limits on evidence asylum seekers could submit, denied appearances by telephone and made inappropriate comments such as “You know your client is going bye-bye, right?” and “Due process is an opportunity, not a privilege.”
“This isn’t just a problem in El Paso — it’s a problem across the board,” said Kathryn Shepherd, national advocacy counsel for the Immigration Justice Campaign at the American Immigration Council.
Since Trump took office, the Department of Justice’s Executive Office of Immigration Review has pursued two policies that attorneys fear may have made it even more difficult for asylum seekers to get a fair day in court. In early 2018, EOIR announced that it had “established new performance metrics for immigration judges,” and for a “satisfactory” performance review, judges must complete 700 cases per year. Those standards went into effect in October.
“When you’re placing quotas on judges or when you closely look at their denial rates for asylum and they’re subject to evaluations on those types of measurements, you can see how perhaps the process may not be the most constitutional,” Lopez-Ortiz said.
Then, in November, EOIR’s Director James McHenry sent out guidance that immigration judges should adjudicate asylum cases within six months, “to the maximum extent practicable.” When it was released, McHenry cited more than “350,000 cases in immigration proceedings with an asylum application pending,” part of a backlog of more than 859,000 pending cases based on immigration charges as of April 2019.
“Judges are human, and the types of pressures that are being placed on them is frankly indefensible,” said Judge Ashley Tabaddor in Los Angeles, speaking in her capacity as president of the National Association of Immigration Judges.
She said quotas, deadlines, lack of access to interpreters and antiquated technology are putting "undue pressure" on judges who are trying to stay true to their oath of office.
“Everything we’re facing is due to the fact that we’re treated as an extension of a law enforcement agency,” she said.
Now, attorneys are reporting rushed court dates that do not give them enough time to build a case and frenetic hearings in front of inattentive judges. Rios said some judges are giving attorneys only two weeks to construct an asylum brief, which usually consists of anywhere from 500 to 1,000 pages.
“These things just take way more time than they’re allotting, and they know it,” said Bachan. “They certainly know it.”
Due process in detention
When Mamadou Balde was detained in Guinea for his affiliation with an opposition party in 2018, he was tortured with hot water and beaten until he escaped, he said. Balde, 25, traveled through almost a dozen countries to seek asylum in the U.S. On the way, his brother was shot and dumped in a river in Panama by men Balde described as “mafia.”
For two days, Balde waited by the river for a sign of his brother. One never came.
When Balde finally arrived in the U.S., he was incarcerated again, this time at Otay Mesa Detention Center in San Diego County. He was eventually granted parole with a $10,000 bond, which he could not pay. So Balde remained in detention for six months while he awaited his asylum hearing.
Rios, Balde’s attorney, said parole from ICE in San Diego comes at a high price. That’s when asylum seekers are lucky enough to have it granted.
Attorneys say officers deliver denials with arbitrarily checked boxes to justify their decisions, and mistakes on ICE forms happen often. Rios provided a redacted parole request from Jan. 7, for a client who had come to the U.S. through a port of entry last fall. The parole denial was dated to Dec. 20 — weeks before the request had been submitted — and claimed that ICE had conducted a parole interview with the asylum seeker on July 31, 2015, more than three years before he entered the country.
In the detention centers overseen by the New Orleans ICE field office, Rivera said detainees are often notified of their eligibility for parole after the due date has already passed to submit documents and well after a parole interview was supposedly scheduled (the form provided to an asylum seeker is called a parole advisal). For example, one client received his advisal on Sept. 8, but the due date to provide documents for parole was four days earlier, and his parole interview had been scheduled for August. His family sent documents two days before he was given the advisal, but he was still denied parole on Sept. 10. Rivera suspects ICE never truly considered the documentation they sent.
“We don’t think that any of them are conducting an actual review of the request. We think they’re just rubber stamping the denial,” Rivera said.
When asylum seekers are detained, it makes it harder for them to pursue their asylum claims. For one, it can be challenging to find counsel, especially when detention centers are remote and require long drives to visit. Rivera said one of the men under the jurisdiction of the New Orleans field office was guaranteed representation through his wife’s attorney if he was released. Instead, because he is still detained, he must represent himself in his asylum claim.
Even if detainees have an attorney, the fact that they’re incarcerated makes it more difficult to piece together evidence. During quarantines, detainees can’t meet with their lawyers. And even on normal days, Rios said she has waited almost three hours just to get a client’s signature.
“I feel like all of these things add up to really affect the client to where the system is stacked against them,” said Rios.
An ICE spokesperson said via email that generally speaking, legal visitation is allowed seven days a week, including holidays. Custody decisions are made on a case-by-case basis, taking into account factors such as immigration history, criminal history, medical history and ties to the community, and parole decisions "consider many of the same factors."
He could not confirm incidents described in this story without the names and dates of birth of each asylum seeker.
"ICE officers review all the facts of a case before making parole determinations, and the process is done professionally, humanely and in accordance with federal law and agency policy," the spokesperson said.
Due process in immigration courts
When Flora moved in with her aunt in Oakland, California, after being released from detention in Georgia, Bachan filed a motion for change of venue so that her client could finish her asylum case closer to home. Because of her disability and modest means, Flora told NBC, it’s difficult for her to fly.
Her impaired motor functions were likely caused by blows to the head from assailants in her home country who targeted her because she is indigenous, her attorney said. Flora today still feels the lasting impacts of those injuries, which make her hands and feet cramp and cause tremendous pain.
Judge William A. Cassidy denied the motion, even though DHS did not oppose the change of venue.
“It definitely flies in the face of long-held case law and just common practice,” said Bachan. “It’s just a consensus that if someone relocates, they need to be able to go to court close to where they live.”
Days before the May hearing, Bachan found out that the court had ordered the wrong interpreter and called the judge’s clerk and court administrator. Judge Cassidy still made her and Flora travel to Atlanta, which cost roughly $2,797 just for flights. Only when they arrived did he decide the hearing could not proceed because Flora could not communicate without a capable Mam interpreter. A date for her next hearing has not yet been scheduled, and she is now filing an unopposed motion for change of venue.
Flora said Judge Cassidy made her feel like trash. “He got angry a lot,” she said. “He didn’t ever listen to what I said.”
NBC contacted EOIR for a response from Judge Cassidy but was told immigration judges do not grant interviews or make statements. EOIR did not comment on the record about more general requests surrounding due process in their courts at the time of this article's publication. Complaints regarding an EOIR judge's conduct can be filed online.
Tabaddor, with the National Association of Immigration Judges, said she does not comment on particular cases but emphasized that the association is committed to standing for due process and professionalism. She said she and her colleagues constantly remind judges to be mindful of their oath of office, "which means you have to uphold the Constitution and the laws of the United States.”
In San Diego, Rios warns clients that, as they talk about some of their most difficult life experiences, the judge may not even look at them. She remembered one judge who, during four or five hours of testimony, looked at her client just two or three times. One of those times, she said, was when the judge criticized her client for not displaying the right emotion.
Tabaddor said that judges might not look at asylum seekers because they are taking notes, knowing they will have to deliver an oral decision mere minutes later.
Sometimes, judges won’t allow attorneys to speak. When William Silverman, a partner at Proskauer in New York, visited South Texas Family Residential Center in Dilley, Texas, for a week last June, he represented four children in their appeals after negative credible fear determinations. The cases were heard one after the other in a court trailer within the family detention facility, where the judge appeared by video.
Silverman asked, “Your Honor, may I be heard?” The judge said no. Silverman was allowed to state his appearance, but he could not otherwise speak.
“If a proceeding is going to be a joke, that should be a big red flag,” he said.
Silverman felt it was clear the judge had already made up his mind before they convened. As he denied each child’s appeal, he told them, “good luck in your home country.”
“To have that cavalier attitude in the face of such hardship in my mind violated everything we are as a country,” Silverman said.
When judges join government attorneys in cross-examining asylum seekers, Rios said, it compromises their impartiality — especially when the line of questioning has little to do with the asylum claim. At Balde’s asylum hearing, the government attorney asked him about his mother, who still lives in Guinea. The judge chimed in, asking Balde if he loved his mother, and what he could do from here to protect her if police arrested her. He could do nothing, Balde said, because he was detained in the U.S.
“It was actually to the point that it nauseated me,” Rios said.
Balde was granted asylum. But not everyone he met along the way got the same happy ending.
“I know so many people, they suffer in detention center(s),” he said. “So many people, their case was denied.”
There is a mental image Silverman thinks about a lot from last June. In a waiting room, people sat patiently before being called into a side room to discuss their credible fear interviews. They had to wait for a while, Silverman said, but no one ever complained. He remembers how so many of the women sat for hours staring straight ahead of them, trauma etched in their faces.
“I really view it as a refugee crisis, the equivalent of people fleeing war zones,” Silverman said. “There’s no policy here that could be cruel enough to deter people from crossing the border.”