Winning asylum: advocates say recent appeals court decisions point to long-standing problems with the way immigration courts adjudicate asylum cases.

He is a tall Pakistani man with dark brown skin and wavy black hair. When he speaks, it is in a shy, lilting English, his words ending before they are supposed to end. On a mid-February morning, he sat in the large, high-ceiling room on the top floor of the Dirksen courthouse downtown, where the U.S. Court of Appeals for the 7th Circuit convenes. He wore an olive suit and matching shoes and, as his attorney spoke, he leaned forward with his arms resting on his legs.

In this courtroom, he would not have an opportunity to say a word. He sat silently at the far end of an otherwise empty bench. The three-member panel of judges may not have known that it was his story they were hearing tangled with legalese.

But it was his life that had been threatened, and he is praying that he will not be forced to go back to Pakistan. "Who doesn't love his life?" he said in an interview after the hearing.

Christopher W. Helt, a Chicago-based immigration attorney representing the Pakistani, had 10 minutes to persuade the judges to send the case back to immigration court--on the basis that his initial bid for asylum was unfairly denied by a judge.

The Pakistani is among an increasing number of asylum seekers mounting challenges to immigration judges' decisions before the U.S. Court of Appeals for the 7th Circuit, whose jurisdiction covers Illinois, Indiana and Wisconsin. Until recently, these cases rarely made their way to this level, but an administrative reform made in 2002 by then-Attorney General John Ashcroft has resulted in more such appeals.

And, in a significant number of cases, the appellate court has been siding with the asylum seekers, agreeing that some immigration judges are issuing uninformed and illogical decisions, and sending the cases back to immigration court to be reconsidered.

Immigration attorneys say they have been frustrated for years by the problems cited by the appellate court, and point out that faulty decisions can wind up sending immigrants back to countries where they stand to be persecuted. There have even been documented cases of denied asylum seekers returning home only to be killed.

A devout Shiite Muslim, the Pakistani said he is in danger because he recruited members to his Shiite political party, called Tehrik-e-Jafria Pakistan, or TJP. He said this activity angered Sunni Muslims, who are the majority in his country.

His fear is not without foundation. The U.S. State Department, which chronicles human rights abuses around the world every year, said in 2001 that "Sunni terrorists have sporadically killed [Shiite] government officials, police, or members of the TJP."

According to court documents, he was threatened and beaten by Sunnis several times in a 10-year period. One time, after leading a rally, he was shot in the thigh. He complained to police, but they did nothing, he said.

Eventually, the TJP paid a smuggler $8,000 to get him to Mexico and usher him over the border into Arizona. Eventually, he made his way to Chicago, where he applied for asylum on Aug. 20, 2001. Four months later, on Dec. 16, 2002, his asylum bid was rejected.

In the appellate courtroom, Helt argued that the immigration judge's decision was riddled with problems. For one, he said, the judge gave his client 10 days to submit evidence, instead of the 30 days permitted by law, and refused a request for more time. The judge then ruled against his client in part because he lacked proof for his claim, Helt said.

Even without documentation, Helt argued, sufficient evidence supports that Shiites and Sunnis are in conflict. "We are not talking about a Hatfield and McCoy situation. We are talking about a severe conflict," he said. "This person fears for his life."

Helt also challenged another basis of the immigration judge's decision: that the Pakistani looked nervous and defensive during his court appearance.

Ilana Diamond Rovner, one of the three appellate judges at the hearing, seemed to be bothered by the point. "Who wouldn't be nervous?" she asked. "I hate it when prosecutors come in here and say the person was nervous. Who wouldn't be?"

Outside of the courtroom, the Pakistani said he was also frustrated by the characterization. "what happened is that the lawyer, the prosecutor, kept asking me yes-and-no questions and wouldn't allow me to give no explanation," he said. "I had been in the States for eight months, and I wanted to say what I have learned to speak. This is my life, and I wanted to explain many things."

Immigration courts, administered by the U.S. Department of Justice, are the first stop for anyone facing deportation, including asylum seekers. Seven Midwestern states, including Illinois, are served by a court in Chicago, at 55 E. Monroe St.

Traditionally, their day-to-day activities have been carried out in relative secrecy with little chance for public scrutiny. The appellate court, by contrast, is a much more public forum.

In the last two years, the number of asylum cases appealed to the appellate court has doubled, from 52 cases in 2002 to 107 in 2004, a Chicago Reporter analysis of 7th Circuit records shows. And, in 2004, appellate judges took up and issued opinions on 29 of the cases, and sent 17 back to the immigration court. In 2002, by comparison, they issued five opinions and sent back only one.

And some of their opinions, which do not name specific immigration judges, contained harsh rebukes questioning the knowledge, or even "common sense," of those judges. Others criticized the way the judges had interpreted the law.

Officials for the Executive Office for Immigration Review, which runs the immigration courts, said the agency's policy does not allow immigration judges to speak to the press.

When asked about the recent opinions of the appellate court, the agency released a statement, saying, "The cases speak for themselves."

One such case was submitted by Evguenia Gontcharova and her daughter. She testified that her husband was a tax inspector who tried to blow the whistle on corruption in the government of Kaliningrad, the westernmost province of Russia. In response, she said the government falsely imprisoned her husband in a mental hospital, and later killed him and his sister.

The immigration judge denied asylum, saying that she had no proof for her claim. "It seemed as though the immigration judge expected Gontcharova to have gone about collecting corroborating documents, including documents from the same people who were persecuting her husband, at a time when she was literally fleeing with her daughter in fear for their lives," said attorney Michael Ferrell, who took Gontcharova's case pro bono. The appellate court agreed and sent back the case.

Attorneys say they sometimes encounter judges who are simply misinformed.

In one case, an immigration judge said a man who feared assassination by the Albanian Socialist Patty need not worry because the party had been replaced. "The immigration judge was wrong," the appellate court wrote. "The Socialists still rule the roost."

In another case, a judge denied the claim of Nourain B. Niam saying that the Sudanese government ruled by Omar al-Bashir that had persecuted him was no longer in power. It still was.

The appellate court went on to say that the immigration judge's reasoning was part of "a pattern of serious misapplications ... of elementary principles of adjudication."

And, in still another case, the appellate court wrote that an immigration judge "missed the boat." Here, a Croatian man who lived in Serbia and Montenegro said he dodged the draft because Croatians were sent into military combat without ammunition and forced into other disparate, dangerous military service. The immigration judge ruled against him, saying that he was describing "discrimination," not "persecution."

But an appellate judge countered this treatment "goes well beyond discrimination."

Erin Corcoran, a staff attorney for Human Rights First, a New York-based advocacy organization, said all 12 federal appellate courts have been receiving more appeals since Ashcroft's reform, but only a handful are responding by overruling a large number of decisions.

That the 7th Circuit is one of them has surprised many. It is considered conservative, with 10 of its 14 appellate judges appointed by Republican presidents. In fact, Richard A. Posner, a noted scholar who was named to the bench by Ronald Reagan, was the most vocal critic of the immigration court in 2004, writing nine of the 17 opinions sending cases back.

"I think the circuit courts thought that the immigration judges were really listening to immigrants and following the law, but now that they are reading the opinions, they are like, 'Whoa, what is really going on here?'" said Corcoran, whose organization works to protect the rights of refugees and asylum seekers.

Although immigration judges can't comment, Terence Evans, an Appellate judge who was appointed to the bench by Bill Clinton, seemed to sympathize with them.

The appellate court "should not be so quick to criticize [the] efforts" of immigration judges, he wrote in an opinion. "I wonder ... if we have a fair appreciation of the workload and conditions under which immigration judges must work."

Six immigration judges in Chicago hear about 1,000 asylum cases each year, Evans noted. "All in all, considering the difficult cases they hear day in and day out, I am of the view that immigration judges do a fairly good job," he wrote. "Are they perfect? No. Should we expect their decisions to be airtight? No. Perfection, I think, is simply impossible given their heavy workload, lack of resources and the complexities involved in the cases they hear."

In recent years, Chicago immigration court has received more cases than it completed. In 2003, it received more than 1,900 cases but dispensed of 1,578, according to the Executive Office for Immigration Review.

The weight of the workload on judges is evident on a daily basis at immigration court. The outside waiting room, which is decorated with a U.S. flag and a picture of Martin Luther King Jr., is crowded on many mornings.

At 9:30 a.m. on Feb. 15, Judge Jennie L Giambastiani called up the first case of the day. Her courtroom is small with two rows of benches, each fitting about six people. Because of the courtroom's size, the clerk calls in clumps of cases at a time.

This was a master calendar call, much like a bond hearing in a criminal court where a stream of people come before the judge and answer mostly technical questions.

Rather than facing a criminal indictment, most immigrants have received notices that list the reasons for their removal, such as overstaying visas. The master calendar call is when an immigrant can challenge the removal by providing the legal grounds for staying in the country.

This is the "factory of immigration hearings," noted Giambastiani as a group of immigrants fried into her courtroom.

The "branch office for Ellis Island," added Thomas O'Malley, an attorney representing the government, whose table was covered with thick files.

Throughout the morning, Giambastiani presided over some 30 cases, quickly deciding: Did an immigrant need a full-fledged hearing on an issue? Did an immigrant need time to get an attorney? Did an immigrant have a legal basis for staying in the country?

A couple of cases involved people wanting hearings to prove they were married to U.S. citizens. Several others asked to stay to take care of their children who were born here-and therefore are citizens.

There also were a number of asylum cases. A man from Nepal and a woman from Ghana asked for asylum even though they had failed to apply within a year of their entry to the United States, as required by law. Advocates harshly criticize this law, saying that asylum seekers often need at least a year to get themselves together or to understand the process.

Another asylum seeker came without an attorney, even though Giambastiani gave him a continuance more than a year ago to find one. Frustrated, she made him answer to the government's charges. The man admitted that he entered the country without any legal documents.

"What country would you want to go into if you had to leave the U.S.?" Giambastiani asked him.

"I would rather go to hell than go back to Albania."

"You had submitted an application for asylum, and you are still afraid of returning to Albania.... Who are you afraid of?" "The government in office--the Socialist Party."

After listening to his plea, Giambastiani told him he will have a hearing on March 21, 2006--the next time she has an open date.

For two other men, this master calendar call was the end of the road. One, accompanied by an attorney, said he would voluntarily go back to Guatemala. Although he had been living in Chicago for more than two decades, his attorney said the man had no legal basis for being here--no asylum claim, U.S.-born children or citizen wife.

The other man was from Bangladesh. He sat in front of Giambastiani with his winter coat on, hunched over the table.

"I gave you a continuance to get an attorney more than a year ago. What happened?"

"Please give me some more time," said the slight man. He then fumbled in his pocket looking for the business card of an attorney he said he had spoken to. The man said that attorney wanted money upfront, but he had none.

Giambastiani was unwilling to budge. She said his only option was to leave the country voluntarily. Otherwise, she would deport him.

Yet, to avoid deportation, the man would have to testify that he could pay for his trip back to Bangladesh. But the man refused, saying, "I don't have money to leave."

After going around in circles with him a couple of times, Giambastiani issued an order of deportation, but told him how to appeal it if he wanted to.

By the end of the master calendar call, Giambastani looked tired. It was now five minutes to one in the afternoon. In the last three and a half hours, Giambastiani had taken no breaks and only stood up twice while her clerk called in more people. One time, she got a drink of water, and another time she stretched.

And her day was not done. She still had a merit hearing to preside over. That would probably last another three hours.

Before leaving the courtroom to microwave her frozen dinner and quickly eat it at her desk, she offhandedly commented on the harsh 7th Circuit opinions. The appellate judges "want us to spend seven months writing a decision, and you saw the court call today," she said. "We just have too much to do. There's no way we can do that."

But Posner, the appellate judge, doesn't buy the argument that the immigration judges are too overwhelmed to make good decisions. "We have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think," he wrote. "Asylum seekers should not bear the entire burden of adjudicative inadequacy at the administrative level."

Even if the appellate court can provide some relief, taking a case that far can be arduous. For example, Niam, the man from Sudan, was ordered to leave the country before the appellate court ruled in his favor.

Larry J. Hagen, an Oak Park attorney who represented Niam, said it took months to find his client, who is hiding in Chad, just to inform him of the appellate court's decision. Now, he's trying to get a visa that allows him to return to the U.S.

Gontcharova and her daughter won their appeal in September. But that only means the immigration court gives them another hearing, and it probably won't happen for a year. "Life is very much in limbo for them," Ferrell, their attorney, said.

Meanwhile, the anxiety is palpable for those whose cases were heard by the appellate court this winter but haven't yet been decided. They can expect a decision sometime this spring.

On March 2, the appellate court heard the case of a husband and wife who came from Sri Lanka four years ago with their four children. They said they were so nervous that they prayed at home, rather than come to the courthouse to hear the oral arguments.

Life has been difficult for the family. The husband has only been able to find a job as a cashier at a convenience store. Their oldest son is doing well as a senior in high school. But his mother said the family can't afford to send him to college and, without a social security number, he can't apply for financial aid or a scholarship. "Here, we don't have much, all we have is peace of mind," the wife said. "But we are so scared of having to go back. We have this big amount of fear."

The family had spent years trying to dodge extortion by the Liberation Tigers of Tamil Eelam, an ethnic minority group attempting to establish a separate state in the northern and eastern regions of their country. Though the family was stripped of its home and livelihood, a judge denied the asylum bid.

The immigration judge concluded the family's wealth made it a target of the Tamil Tigers-which he said does not fit legal criteria for asylum: persecution on the basis of race, nationality, religion, political opinion or a membership to a particular social group.

The family's attorney, Carrie Bassi, argued that the decision was misguided. "Only rich people get extorted," she said. "It would be silly to try to extort someone poor."

Bassi added that the family is Muslim, and the Tamils are primarily Hindu. They weren't protected, she said, because of their religion.

Bassi said she is asking the appellate court to grant asylum to the family, rather than simply sending the case back. She points out that the immigration judge has already ruled that the family's claims were credible, so there is no reason to start from the beginning of the process.

The Pakistani, whose case was heard by the appellate court in February, also said he has suffered from anxiety. If the appellate court rules against him, he doesn't have many options. He could take his case to the U.S. Supreme Court, but he knows that even getting his case considered is a long shot and expensive.

He is further upset by government attorney's last-minute contention in the oral arguments.

One business day before the hearing, Helt, his attorney, got a fax from the government's attorney, saying she was going to argue that the Pakistani's Shiite party is an extremist group, and it is another reason why his client shouldn't be granted asylum.

Before leaving office in January, Ashcroft issued an order that designated members of an "extremist group" as persecutors, and the law says that persecutors can't be granted asylum. "One does not need to personally commit atrocities to be considered a persecutor," Alison Trucker, a government attorney, told the appellate court.

But Helt called Trucker's contention a "red herring" and told the judges, "the record is devoid of any evidence whatsoever that my client ever hurt anyone or is on any terrorist list."

The Pakistani said all he wanted to do was to practice his religion and stand up for his beliefs. And living in the United States hasn't been easy, either. He did get a university degree in Pakistan before he left, but, without legal status, he doesn't know if he can get work. "I am 27 and I am not married," he said. "I am waiting to make a life for myself."

Flooding the courts

An administrative reform made by former Attorney General John Ashcroft inadvertently set the stage for more asylum cases to be appealed to the U.S. Court of Appeals for the 7th Circuit in Chicago.

In 2002, Ashcroft was trying to clear up a logjam at the Virginia-based Board of Immigration Appeals, or BIA, where immigrants facing deportation first appeal their cases after losing at one of the 53 immigration courts across the nation. At that time, the BIA had 23 judges who met in three-judge panels to review decisions on petitions for asylum or similar matters made by immigration judges.

But this process had created a backlog of more than 56,000 cases nationwide, with about 10,000 cases waiting for at least three years to be reviewed. "Such delays encouraged unscrupulous lawyers to file frivolous appeals," Ashcroft said in a press release. "Even though they could not win, such lawyers could exploit the system to guarantee their clients additional years within the United States."

Only after a BIA ruling can an immigrant bring a case before a federal appellate court. An attorney would have to point to a legal mistake of the lower courts in order to ask the appellate court to review the case.

To erase the backlog, Ashcroft reduced the number of judges to 11 and ended the use of three-judge panels in most cases. It now addresses only "clearly erroneous" legal standards applied by immigration judges and no longer examines the facts of each case.

After the reform, the BIA began upholding scores of initial decisions with mere one-sentence explanations, if at all.

The absence of detailed explanations opened the door for the appellate courts to look directly at the rulings of the immigration judges.

On Dec. 18, 2003, for example, the 7th Circuit ruled in favor of Erion Bace, an Albanian asylum seeker, forcing the BIA to re-examine his case. At his initial hearing on Jan. 5, 2000, Bace testified that he was active in the Albanian Democratic Party and was commissioned to work as a poll watcher. He saw cases of voter fraud and refused to certify the referendum. His action angered the party in power-the Socialist Party. On the day of the referendum, Bace said he was beaten by masked men and cut with a razor.

In the next month and a half,, the attacks continued. In the last attack, Bace's wife was raped in front of him and relatives. The Baces then came to the United States to apply for asylum.

An immigration judge denied the asylum bid. The Baces then appealed to the BIA. On Oct. 4, 2002, the BIA upheld the decision without any explanation.

In the Baces' appeal, the appellate judges wrote that an immigration judge made a "cursory" ruling without addressing whether the Baces' story was credible and whether what happened to them constitutes persecution.

In March, the Baces were granted temporary asylum, pending their security clearance.

THE NUMBERS

Judgment Day

The U.S. Court of Appeals for the 7th Circuit in Chicago has
increasingly been willing to take on cases brought by asylum seekers,
whose claims have been turned down by immigration judges. And, in a
significant number of cases, appellate judges have sent cases back to
be reconsidered.

AT 7TH CIRCUIT

              All           All
          immigration      asylum     Asylum cases  Asylum cases
             cases         cases        decided      sent back

2002          124            52             5             1

2003          253           109            13             3

2004          255           107            29            17

Note: Legal briefs for 204 immigration cases had not been filed yet or
could not otherwise be located, the number of asylum cases among them,
if any, could not be determined.

Source: US. Court of Appeals for the 7th Circuit; analyzed by The
Chicago Reporter.

Miriam Cintron, Cassandra Gaddo, Liliana Ibara and Bianca Sepulveda helped research this article.