Immigration Court: Broken but Fixable

By Maurice Possley 10-10-2012
zimmytws / Shutterstock
"Judges court gavel and US passport." zimmytws / Shutterstock

"A photograph of bikini-clad pop superstar Katy Perry gets more legal protection in our courts than a Chinese rice farmer trying to avoid deportation back to a totalitarian regime that may kill him."

As a journalist I covered state and federal civil and criminal cases for more than 30 years and only occasionally did I find myself in the U.S. Immigration courts. So when I read California attorney Peter Afrasiabi's book, Show Trials: How Property Gets More Legal Protection in Our Failed Immigration System, I found his comparison to the laws protecting property rights to the immigration laws particularly alarming.

Afrasiabi's book is an eye-opening account of his personal experiences as a lawyer representing men, women and children — families — in some of the most confounding cases one can imagine.

Although the names of his clients have been changed to protect their identities, Afrasiabi bases his analysis of the failure of the immigration system on actual cases that he personally handled.

Afrasiabi is an unusual lawyer in that he has practiced at the unlikely intersection of immigration and intellectual property law. As a result, he is in a unique position to make the comparison of the Katy Perry photograph case to the plight of a Chinese rice farmer.

His book is easily accessible to the non-lawyer and lays out several proposals to improve the immigration legal system. Erwin Chermerinsky, dean of the University of California Irvine School of Law and a nationally recognized expert on constitutional law, has described Afrasiabi's proposals as "a blueprint for essential reforms."

Among the cases that Afrasiabi describes is that of a woman he calls Aline Abassian who, in 2005, was a 79-year-old widow in deportation proceedings in Los Angeles.

Born in Iran in 1926, Aline immigrated with her husband to Soviet-controlled Armenia in the 1960s to join her extended family. Because they were Baptists, the Soviets refused to let them live with their family and forced them to move to a distant area of the country.

But they "were arrested, detained and beaten by Soviet police because they refused to cease worshipping Jesus Christ." Their son married a Turkish woman who converted to Christianity and the couple fled the country because of harassment over their religion. Their daughter escaped to America in the late 1980s, became a citizen, married, and had children.

In 1993, after their home was destroyed by a rocket during civil war and Aline's husband, Aram, was partially paralyzed, their daughter obtained visas so they could visit the U.S. where, upon their arrival, they sought political asylum. But the case gathered dust in Immigration Court, and in 1996 Aram died.

In 1999, Aline’s case went to trial where she testified to a life of hardship, harassment and pain because of her devotion to her religion. The immigration judge decided that though her testimony was truthful, her experiences did not rise to the level of persecution required for asylum. She appealed and lost.

So, in 2005, Aline, by then nearly 80 years old, approached the pro bono federal appellate law clinic that Afrasiabi founded in 2000 at the Chapman University School of Law in Orange, California. The clinic agreed to represent her in an appeal to the 9th U.S. Circuit Court of Appeals.

During oral arguments, Judge Marcia Berzon expressed concern that the prosecution was seeking to deport such an elderly woman to a place where she had no family. The judge noted that Aline "doesn't necessarily look like somebody the United States should be spending its time deporting."

The prosecutor responded by saying there was no discretion — they had to oppose the request for asylum. Remarkably, the appeals court issued an order requiring both sides to mediate the case — a process that took a year and ultimately resulted in a decision allowing Aline to remain in the U.S., but sadly without any legal status or benefits that our country provides to the elderly.

The government still steadfastly refuses to engage in voluntary mediation, Afrasiabi reports. "This was and remains an intransigent, uncompromising position for the government to advance. Refusing to mediate ... requires litigation to the bitter end."

American immigration law, according to Afrasiabi, is an "upside-down, back-to-front labyrinth" that results in "show trials," proceedings that are devoid of due process and only have an appearance of justice.

His book proposes seven reforms — some more radical than others. These include replacing the immigration judiciary with constitutional judges. He notes that to become an immigration judge, a lawyer fills out an application and is required to have been a lawyer for seven years. Immigration experience is not required.

Twenty percent of immigration judges, he reports, graduated law schools ranked in the bottom 25 percent of all law schools. And therefore, he says, it is no surprise that immigration judges are reversed about 28 percent of the time in asylum cases and 31 percent in non-asylum cases.

"United States citizen children should not be de facto deported from their homes because their parents committed a wrongful act years earlier as a way of preserving family units,” he declares.

Because 60 percent of immigrants are not represented by attorneys and the lawyers representing the 40 percent are overworked and underpaid, Afrasiabi urges that lawyers be accorded the right to obtain court-ordered legal fees for their work.

Although the right to counsel was established in American criminal courts more than 50 years ago, there is no such right to a lawyer in immigration courts. "Absent guaranteed legal representation in these difficult, complex, and significant cases, we can only expect a process that produces results that are half-banked and irrational," Afrasiabi writes.

The system is a failed one, he declares, one that has fallen short of "both our American guarantees enshrined in the Constitution's guarantee of due process and of our American principles reflected in Emma Lazarus' words inscribed forever on the Statue of Liberty: 'Give me your tired, your poor, your huddled masses yearning to breathe free.'"

Afrasiabi, partner of an entertainment and intellectual property law firm in Orange County, California, now runs the pro bono appellate clinic at the UC Irvine School of Law where he is an adjunct lecturer.

Despite the gloomy portrait he paints of immigration courts, he remains optimistic that the system is "eminently fixable." His book provides a framework for that overhaul to begin.

Maurice Possley is a Pulitzer Prize winning former investigative reporter for the Chicago Tribune. He is an investigator and writer/researcher for the National Registry of Exonerations.

Photo: Judges court gavel and US passport. zimmytws / Shutterstock

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