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Immigration judges work under the Executive Office for Immigration Review, which falls under the DOJ and the attorney general. This became well known when Monica Goodling, once an aide to former Attorney General Alberto Gonzales, told Congress that she'd screened Bush-era judge appointees for political beliefs ahead of time, looking for judges who would shoot down asylum applications.
Speaking for the immigration judges' association before Congress in June, Marks joined the American Bar Association in recommending that immigration judges get a special status "to guarantee decisional independence and insulation from retaliation" — a freedom judges today don't necessarily enjoy, given their place as employees of the Department of Justice who serve at the pleasure of the U.S. attorney general.
Statistically, Mexicans seeking asylum are almost certainly doomed. However, some applicants do prevail. A case originating in Brownsville offers a glimpse into the possible future of asylum law.
Jim, who did not want his name used, was a mechanic and a musician in Matamoros, Mexico, just on the other side of the Rio Grande. He had polio and lived at home with his mother. Their longtime neighbor was a notorious crime boss. One day, he asked Jim to store drugs and guns at their house, but Jim refused.
It didn't take long for the local police to show up on behalf of the drug lord, and, after giving Jim a few warnings, a gang of drug traffickers and policemen broke into his home one night and kidnapped him at gunpoint.
They drove Jim to an open field and starting beating him with their fists. One man hammered Jim with a two-foot-long metal pipe. Later that night, the men took Jim to the parking lot of the police station, where they forced him to call his family and demand $20,000 in ransom money. Then they handcuffed Jim and beat him some more before driving him home. He had 24 hours to come up with the cash or be killed.
For three days, Jim hid in the body shop where he worked, sleeping in a broken-down van. When the officers showed up at the shop, he ran to a family member's home and was told the corrupt policemen already had visited. That afternoon, Jim's son drove his father to the border patrol station in Brownsville, where Jim asked for protection, saying he was "desperate to avoid being murdered by two Mexican federal policemen."
For months, Jim was detained inside the Port Isabel Detention Center, 12 miles north of Brownsville. When an immigration judge finally heard the case, it was denied. The judge decided Jim's story was not credible and that the policemen were not acting as agents of the state.
Jim's attorney, Henry Cruz, decided to appeal, but this time he would take a new approach. Instead of applying for traditional asylum, he would appeal under the UN Convention Against Torture.
The difference, says Cruz, is that under the convention, the applicant only has to show that he will likely be tortured by the police or with the police's consent, and not that he belongs to a protected social group or is being persecuted for a particular political opinion.
On appeal, the immigration board reversed the lower court's decision and found that Jim's story was credible. The board also found that though the abuse was committed by the Matamoros police, it was perpetrated by the drug lord. The issue of relocation was moot, as Jim's polio and care requirements made moving away from family nearly impossible.
In the end, Jim won.
"With Convention Against Torture cases," says Cruz, who now practices law in Seattle, "the issue is, what does 'acting in an official capacity' mean? Are rogue police officers acting in official capacity? Former U.S. Attorney John Ashcroft used to say, 'No.' Well, he's completely wrong, and if you look at civil rights case law, [police] don't have to be on duty or in uniform as long as they show they have authority. And in this case, they had handcuffs, weapons, and portrayed themselves as officers. So even if they were doing it outside of their office, you can't erase the fact that they are police agents and use their tools for drug traffickers. And it doesn't have to be an official policy of the police department to help drug traffickers, either."
Or, as Elvia Garcia, an attorney in El Paso puts it, "It's like the Ku Klux Klan in the 1950s. Police officers would stop people on the road and then turn them over to the KKK. The same thing is happening in Mexico with impunity."
Cruz concedes that he and Jim got lucky with a sympathetic judge out of Las Vegas, and that which judge you draw severely affects an asylum applicant's chances. However, he believes more asylum cases can be won by applying the anti-torture convention.