Inhumanity of the Law, Part 4

July 30th, 2018

Having determined to their own satisfaction that the immigration court could protect C.J.L.G.’s due process rights by “fully and fairly develop[ing] the record” so as to “ascertain and evaluate all relevant facts” and “to discover any facts that might support C.J.’s asylum claim,” the appeals judges turned their gaze to the items that C.J.L.G. had to prove in order to win asylum.

Let us linger a moment over the task the Ninth Circuit envisioned for the immigration “judge”. Recall that only 10% of unrepresented children avoid deportation, compared to 47% of those who have lawyers.  It’s fair to assume that nearly all those whose lawyers won them asylum deserved it.  The immigration “judge” is expected to avoid the risk of erroneous deportations, so she should make the same difference that a lawyer would have.  (Why, then, that 37% gap?  Dunno.)  The “judge” presumably does this without abandoning her duty of fairness to the government; without acting as the child’s advocate; without meeting privately with the child, taking the time needed to fully explore and understand the child’s situation; without developing a litigation strategy for the child or advising the child how to proceed; without investigating the child’s claims independently, outside the courtroom; without identifying or calling witnesses or producing evidence on the child’s behalf.  To do these things arguably would violate the “judge’s” ethical obligations to act impartially, not to give preferential treatment to any individual, not to act as a counselor or adviser for a party in the case, not to represent anyone against the United States, not to engage in the private practice of law, not to initiate or engage in ex parte communications with a party in a pending matter, and to make reasonable efforts to avoid receiving factual information that is not part of the record, all as set forth in the Ethics and Professionalism Guide for Immigration Judges.

The first item was whether C.J.L.G. faced a well-founded fear of future persecution.  They started by looking to the past.  If he had been persecuted already, the court could presume that he would continue to be persecuted in the future unless conditions had changed to invalidate that inference.  The judges found that the gang’s threats to kill C.J.L.G. and his family did not necessarily constitute past persecution, because C.J.L.G. had not been physically harmed, but that the same threats gave rise to a well-founded fear of future persecution “because they portend a likelihood of future physical harm” and because C.J.L.G., as a minor, was more vulnerable to threats than an adult would have been.  Of such niggling is law made.  So C.J.L.G. passed that hurdle.

To establish the second item, C.J.L.G. had to fear persecution “on account of a protected basis – namely race, religion, nationality, membership in a particular social group, or political opinion.”  Did the gang’s threats to kill C.J.L.G.’s family constitute persecution on account of membership in a particular social group, that is, his family? The Ninth Circuit dismissed this argument, reasoning that the causal relationship ran the other way: threats against the family were a means of persecuting C.J.L.G., but not the reason for the persecution.

Some light had glimmered in the Ninth Circuit’s treatment of the first item, albeit dimly, as if from a distant end of a tunnel.  (They considered it a “close question” whether an escalating campaign of intimidation against a thirteen year old kid, culminating in holding a gun to his head and threatening to kill him and his family for noncompliance, amounted to persecution.)  Now they dived further down the rabbit hole.  The appeals judges quoted what they described as “a logical and sequential series of questions” that the immigration “judge” had asked C.J.L.G., leading to the conclusion that he was not persecuted “on account of” his family.  And indeed, C.J.L.G. had testified that the gang had threatened him because he would not join them, and that they threatened to kill his family to get him to comply.  The appeals judges characterized this inquiry as “adequate.” Should C.J.L.G. have been asked why the gang specifically targeted his family?  The appeals judges swept this argument aside, observing (correctly, in my view), “Even if the [gang] targeted C.J.’s family for reasons independent of their efforts to recruit C.J., that would not change the fact that C.J. was not threatened on account of his family.  He was, by his own testimony, threatened because he courageously refused the [gang’s] repeated demands to join them.”

Has any alert reader spotted what is missing from the above?  C.J.L.G.’s “well-founded fear of future persecution” began with the gang’s efforts to make him a member.  Where is the logical and sequential series of questions designed to learn why the gang chose him? How could it possibly be determined whether he was subject to persecution on account of a protected basis, if there was no real effort to ascertain the reason for the persecution?  A lawyer working with C.J.L.G. might well have been able to develop a theory and produce evidence to support it.  The immigration “judge,” conducting a cursory enquiry that stopped at the most superficial level, did not.  The appeals judges, busily picking nits, passed over this huge lacuna in silence.

We haven’t bottomed out, yet.  The third item was that C.J.L.G. feared persecution by the “government or forces the government is either unable or unwilling to control.”  C.J.L.G. had testified that he did not report the gang’s threats to the police because ”they couldn’t do anything” and he was “very afraid.” Since C.J.L.G. failed to produce any further evidence that a complaint to the police would have been unavailing, the immigration “judge” decided that he had failed to show that the Honduran government could not or would not control the gang.

Here it gets a bit technical, having to do with appellate process.  After the immigration court ordered him to be deported, C.J.L.G. found a lawyer and appealed to the Board of Immigration Appeals; but he failed to challenge the immigration “judge’s” finding regarding the Honduran government’s ability or willingness to protect him.  When the Board denied his appeal, C.J.L.G. appealed that ruling to the Ninth Circuit.  It is a general rule in appellate proceedings that if you could have raised an issue in a lower tribunal, but you did not, that issue is “waived” and the appellate court won’t consider it.  You snooze, you lose. So, C.J.L.G.’s lawyer had waived the issue.  The Ninth Circuit could have stopped there.[1]  Instead, over-explaining as people do when prompted by bad conscience, the appeals judges wrote, “even were we to consider this issue, we find that the [immigration judge] adequately developed the record and that her determination was based on substantial evidence.”

Here is the Ninth Circuit’s description of this “substantial evidence” in its entirety:

The [immigration judge] adequately developed the record by introducing and considering a 2014 State Department country conditions report on Honduras. State Department reports may provide objective evidence of a government’s inability or unwillingness to control private actors. [case citation omitted]  Far from reflecting the Honduran government’s inability or unwillingness to control gang violence, the 2014 report states that security forces severely punish gang members.  Accordingly, because the report does not support C.J.’s subjective statement that the police ‘couldn’t do anything,’ we cannot disturb the Board’s finding that C.J. has not shown that the government is unable or unwilling to control the gang.

Finally we have reached the jaw-dropping nadir.  What has happened to the immigration “judge’s” affirmative obligation to discover facts that support the asylum claim?  Where is the logical and sequential series of questions designed to determine the basis, if any, for C.J.L.G.’s statement that the Honduran police would be useless to him?  Why is that statement, coming after all from a Honduran who, it may be inferred, possesses some personal and intimate familiarity with the crime-fighting effectiveness of his local police, dismissed as “subjective?”  That word, “subjective,” is the rhetorical giveaway revealing bad faith.  How is it possible to so characterize C.J.L.G.’s statement, in the absence of any enquiry as to its basis?

If I read correctly, the State Department report was introduced into evidence not by one of the parties, but by the immigration “judge.”  Astonishing!  Remember the court’s affirmative obligation to compensate for the alien’s lack of an attorney by compiling a record containing all relevant facts, including those that would support the asylum claim.  The “judge” stood this obligation on its head.  Rather than flesh out the basis for C.J.L.G.’s claim by careful enquiry, the “judge” introduced an out-of-court statement from an arm of the U.S. government – that is, the statement of C.J.L.G.’s adversary.  Was there anyone in the courtroom who might have cross-examined this evidence, tested its credibility, and challenged its assertions and admissibility?

As described, the report does not perform the evidentiary task ascribed to it.  Even if Honduras truly punishes gang members severely (when they are caught), that is irrelevant to C.J.L.G.’s claim that he, C.J.L.G., could not expect effective police protection. The only evidence cited by the appeals judges that bears directly on the ability or willingness of the Honduran police to protect C.J.L.G. was C.J.L.G.’s own uncontradicted statement.  But of course, he was just a thirteen year old kid with a stake in the outcome, unlike the State Department, whose policies and publications spring from the unpolluted well of disinterested truth without regard or favor for the preferred positions of any other agency of the United States government.

It is absurd.  The immigration court’s own docket, flooded with asylum claims of Hondurans fleeing gang violence, would amply evidence an uncontrolled situation.  The daily press documents episode after episode of this ongoing tragedy.  On the last page of C.J.L.G. v. Sessions, the Ninth Circuit described Honduras as “a country in turmoil.”  Whence this turmoil?  Why use that word?  Is it evidenced in the immigration court’s record?  Or did the appeals judges just let slip what we all know?

There is more to the decision.  For example, the third Mathews factor weighs in the government’s favor because providing counsel for children like C.J.L.G. would “significantly increase the funds expended on immigration matters.”  C.J.L.G. was not prejudiced because the “judge” compiled an “adequate” record.  And so on. At the end, crocodile tears: “We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity.  But while our hearts are with C.J., the law does not support his requested relief.” And indeed, in the territorial jurisdiction of the Ninth Circuit Court of Appeals, that is the law, because they say it is, until the court reverses itself or the Supreme Court tells us different. The Ninth Circuit did not have to decide as it did.  No existing Supreme Court decision compelled this result.  They could have done justice.  Instead, they pulled the trigger and offered thoughts and prayers.


This is the fourth of a four-part series.

[1]Appeals courts can and do make exceptions to the waiver rule, at their own discretion, but they do so rarely.

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