Is the only genuine refugee a dead one? As triggering as that question sounds, it was remarkably close to the legal issue my client has courageously been fighting for several years. The Charlotte immigration judge (IJ) who heard her asylum claim had concluded my client’s testimony was credible and the motivation behind one of the death threats she received was her religion. “However, the IJ then concluded that the death threat did not rise to the level of past persecution because the threat never came to fruition.” The “fruition” test is not a part of our jurisprudence, especially within the present day Fourth Circuit Court of Appeals, which has made noteworthy strides in asylum law.
This week, the Fourth Circuit, in a published decision, reaffirmed its case law, finding the threats directed at my client in El Salvador constituted past persecution. This is significant because a finding of past persecution creates a rebuttable presumption that my client will face future persecution if she is returned to El Salvador. Moving forward, it will be the Department of Homeland Security’s burden to rebut that legal presumption.
In doing so, the panel stated “by discounting the death threat Sorto-Guzman received on account of her religion, the IJ and the BIA ignore our clear precedent. But let us be clear one more time: ‘the threat of death alone constitutes persecution.’” Why would an Article III court—one of the second highest courts in the United States—have to remind a federal agency to follow mandatory authority? I would argue it’s because the current immigration “court” system is part of the Department of Justice, headed by an Attorney General that also oversees the lawyers that prosecute immigration cases at the federal level. That conflict of interest means that the Executive Office for Immigration Review (EOIR) is inherently incapable of remaining truly neutral in its application of immigration law.
For me, the Sorto-Guzman decision was yet another reminder why our country needs an independent Article I immigration court. Right before our world shut down due to the COVID-19 pandemic, I had the honor of testifying before the House Judiciary committee about the need for an independent immigration court, and pointed specifically to politically-motivated immigration judge hirings—something that used to be a scandal—as one reason to create one:
The highly disparate asylum grant rates among judges gives rise to criticism that outcomes turn on which judge is deciding the case rather than established principles and rules of law. My local immigration court in Charlotte is within the jurisdiction of the 4th Circuit Court of Appeals, along with immigration courts in Arlington and Baltimore. All three immigration courts share identical case law, so one would assume their asylum denial rates would also be similar. Yet Arlington and Baltimore’s asylum denial rates are a little over 50 percent, a rate in line with each other and the national average. Charlotte’s is over 90 percent. A client of mine in Greensboro could move 40 minutes north into Virginia and more than double their chance of being granted asylum.
While it is unrealistic to believe we can eliminate politics entirely from staffing an immigration court system, we can reduce its influence and build systems that check its influence. Earlier this year, we finally got a bill that would do just that: the Real Courts, Rule of Law Act of 2022 was introduced in the House and was successfully reported out of the House Judiciary Committee. The bill currently has 57 co-sponsors behind its primary sponsor, Zoe Lofgren (D-CA). While its enactment this election year remains a reach, the need to divorce immigration courts from the Department of Justice is finally part of the mainstream immigration debate.
My client got a good decision, but we need to continue the push for fundamental reform of our immigration court system so that EVERY client truly gets a fair chance under our immigration laws.