This Denver immigration judge managed to avoid mention by name, which is a shame. Judges whose decisions are reversed for abuse their discretion should be routinely outed. Even if they can't be removed for making bad decisions, attorneys practicing before them should be entitled to know what they are up against.
The immigration judge was presented with uncontested oral evidence and affidavits that a woman speaking fluently in the language of Ethiopia, where she claimed to have grown up, had mixed parentage, with one parent an Eritrean, and the other an Ethiopian. This, she claimed, resulted in violent and cruel government action against her on both sides of the border of the newly divided nation. Despite this evidence, (and the judge didn't question that she was persecuted) the judge ordered her returned to the country of her torment.
The Bureau of Immigration Appeals, as is its custom, summarily affirmed the judges description with essentially no analysis or discussion.
The judge said that it wasn't credible that she was an Ethiopian. Why? She had few official documents in hand to prove her citizenship. (I'd be more skeptical if a refugee did.) Her passport was torn up, although the important pages weren't missing. A relative's evidence was presented by affidavit, rather than in person.
Was it sloppy immigration attorney lawyering? Probably, yes. The appeal was handled by DU law students who got it right, however, although we don't know who handled the case at trial. Even when the attorney's aren't students, they are often volunteers with little or no experience in the field. But, there aren't exactly a lot of non-Ethiopians in Denver, speaking fluently in the language of Ethiopia, claiming asylum with affidavits in hand from relatives, under penalty of perjury, who claim to know that her parents are Ethiopians.
The 10th Circuit reverses the decision, basically finding that the immigration judge had no basis in the evidence presented to be unthinkably skeptical. The appellate court wasn't allowed to consider extensive documentation of her nationality presented after the hearing, although they chide the government attorney stating: "We are frankly surprised that the government persists in defending the BIA's decision, rather than acquiescing in remand in the interest of justice." (The appellate court also chides the government attorneys in footnote 1 for incompetence in their appellate brief, noting that they admit key facts in one part of their brief, which they deny in their analysis "making it difficult for the Court to determine what facts the government deems to be material and disputed."
But, that is, at heart, the problem. Government immigration lawyers don't give a shit about justice in the United States, certainly not in Denver, where assistant U.S. Attorney Elizabeth A. Weishaupl and U.S. Attorney William J. Leone argued to defend a mistaken determination by an immigration judge, that this woman wasn't an Ethiopian, that they clearly knew to be wrong as a matter of fact. The immigration judge went out of his way to make this woman suffer back in Ethiopia and possibly die, for no apparent good reason. It isn't as if the government offered any evidence at all to contradict the story or to show that the story provided was false. This immigration judge engaged in little more than torture by proxy.
The case comes in the context of a large number of badly decided immigration decisions, nationwide, and perfunctory appeallate review, overwhelmingly anti-refugee, due to John Ashcrofts gutting and biasing of the immigration courts in the early years of George W. Bush's regime. Alberto Gonzales, the current attorney general, has himself stated that he is deeply concerned by the current state of affairs.
If the immigration courts repeatedly prove to be stacked against immigrants who seek relief in them, even when those immigrants are in the right, is it any wonder that people are loathe to resort to the legal process?