Experts who reviewed transcript of hearing raise questions about its fairness
By Julie Watson
Associated Press
The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.
Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.
He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.
At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.
“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.
Mohammad’s case offers a rare look inside an opaque and overwhelmed immigration court system where hearings are often closed, transcripts are not available to the public and judges are under pressure to move quickly with ample discretion. Amid a major influx of migrants at the border with Mexico, the courts — with a backlog of 2 million cases -– may be the most overwhelmed and least understood link in the system.
AP reviewed a hearing transcript provided by Mona Iman, an attorney with Human Rights First now representing Mohammad. Iman also translated Mohammad’s comments to AP in a phone interview from Prairieland Detention Center in Alvarado, Texas.
The case reflects an asylum seeker who was ill-equipped to represent himself and clearly didn’t understand what was happening, according to experts who reviewed the transcript. But at least one former judge disagreed and said the ruling was fair.
Now Mohammad’s attorney has won him a new hearing, before a different judge — a rare second chance for asylum cases. Also giving Iman hope is a decision this week by the Biden administration to give temporary legal status to Afghan migrants living in the country for more than a year. Iman believes he qualifies and said he will apply.
But Mohammed has been in detention for about 18 months, and he fears he could remain in custody and still be considered for deportation.
AP sought details and comment from U.S. Immigration and Customs Enforcement. The agency didn’t address questions on Mohammad’s case but said noncitizens can pursue all due process and appeals and, once that’s exhausted, judges’ orders must be carried out.
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For his April 27 hearing, Mohammad submitted photos of his injuries from the 2016 suicide bombing that killed hundreds at a peaceful demonstration of mostly Hazaras. He also gave the court threatening letters from the Taliban and medical documents from treatment for head wounds in 2021. He said militants beat him with sticks as he left the university and shot at him but missed.
In court, the government argued that Mohammad encouraged migration to the U.S. on social media, changed dates and details related to his history, and had relatives in Europe, South America and other places where he could have settled.
In ruling, Judge Allan John-Baptiste said the threats didn’t indicate Mohammad would still be at risk, and that his wife and children hadn’t been harmed since he left.
Mohammad tried to keep arguing his case, but the judge told him the evidentiary period was closed. He asked Mohammad whether he planned to appeal or would waive his right to do so.
Mohammad kept describing his claim, but John-Baptiste reminded him he’d already ruled. Mohammad said if the judge was going to ignore the humanitarian situation in Afghanistan, he wouldn’t ask for an appeal. John-Baptiste indicated he had considered it.
“You were not hit by the gunshot or the suicide bomber,” John-Baptiste said. “The harm that you received does not rise to the level of persecution.”
Mohammad continued, explaining how his family lives in hiding, his wife concealing her identity with a burqa.
“OK, are you going to appeal my decision or not?” John-Baptiste ultimately asked.
“No, I don’t,” Mohammad said.
“And we don’t want you to make the decision now that you can’t come back later and say you want to appeal. This is final, OK, sir?” John-Baptiste said.
“Yes. OK, I accept that,” Mohammad said.
He later asked whether he could try to come back legally. The judge started to explain voluntary departure, which would allow him to return in less than a decade, but corrected himself and said Mohammad didn’t qualify.
“I’m sorry about that, but, you know, I’m just going to have to order you removed,” John-Baptiste said. “I wish you the best of luck.”
Mohammad later told AP he couldn’t comprehend what was happening in court. He’d heard from others in detention that he had a month to appeal.
“I didn’t understand in that moment that the right would be taken from me if I said no,” he said.
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Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
Before Mohammad decided to flee, his wife applied for a special immigrant visa, which grants permanent residency to Afghans who worked for the U.S. government or military, along with their families.
But that and other legal pathways can take years. While they waited, Mohammad said, the Taliban came looking for him but instead detained and beat his nephew. Mohammad described making the devastating decision to leave his family, who had no passports.
He opted for a treacherous route through multiple countries to cross the U.S.-Mexico border, which has seen the number of Afghans jump from 300 to 5,000 in a year.
Mohammad said he crossed into Pakistan, flew to Brazil and headed north. He slept on buses and trekked through Panama’s notorious Darien Gap jungle, where he said he saw bodies of migrants who didn’t make it.
Mohammad planned to live with a niece in North Carolina. Now he fears if he’s sent home and his wife gets her visa, they’ll be separated again.
Deportations to Afghanistan are extremely rare, with a handful each year.
Attorney Iman said they’re grateful Mohammad’s case has been reopened, with a hearing scheduled for Oct. 4. She is fighting for his immediate release.
“I have no doubt that his case would have turned out differently had he been represented,” Iman said. “This is exactly the type of vulnerable individual that the U.S. government has promised, has committed to protect, since it withdrew from the country.”
