America was founded upon a set of exceptionally virtuous and new ideas. One of those ideas is that we are the indispensable country offering refuge and opportunity to those seeking a better life, with “better” often defined as an escape from brutal persecution.
The great symbol of this American promise is the Statue of Liberty from whose “beacon-hand glows world-wide freedom.” All of us whose families came here freely owe so much to the realization of that promise, fortunate that our families were able to immigrate at a time when the “beacon-hand” was alight, the gates open.
Too often, however, our American ideal of openness has been extinguished by Nativism, notably during the years leading up to the Holocaust, and more recently now as anti-immigrant fervor has been re-ignited with shameful results.
I came across a recent immigration case that shows both the worst of our current immigration system and the best of our judicial system. Here are the facts.
Arckange Saint Ford was a Haitian citizen who in 2012 became an active participant in the Haitian opposition party, the “PPD.” Saint John joined the PPD because he believed the ruling party was corrupt and an abuser of human rights. In 2013 and 2014, Saint Ford received a number of menacing anonymous calls warning him to leave PPD and join the ruling party. When Saint John did not comply, armed men came to his house, fired shots into it, and then burned it to the ground. Fearing for his safety, Saint John had already fled his house and soon left Haiti. He made his way to America to apply for asylum.
These events were corroborated by Saint John’s neighbor.
Saint John hired an immigration attorney with whom he had little contact. At the removal hearing in front of the Immigration Judge, Saint John’s attorney was unable to offer any facts or evidence regarding the PPD opposition party, even as to its existence. This information was of course readily available on the internet.
Although the Immigration Judge found that Saint John’s testimony and the corroborating report of his neighbor were compelling, she found that the lack of evidence introduced proving the existence of PPD as an opposition political party was a fatal flaw in Saint John’s request for political asylum. So she ruled that Saint John had to return to Haiti. But for a simple google search….
Saint John found a new lawyer and appealed based on not having received effective counsel. The Immigration Board of Appeals rejected his appeal. On further appeal by Saint John, The U.S. Court of Appeals for the Third Circuit took the case. During that appeal, the lawyer representing the U.S. Attorney General (opposing Saint John) conceded that the first test for a successful appeal had been met–––that Saint John’s representation had been ineffective. Continued opposition to Saint John’s appeal was based on an alleged failure to meet the second test, turning on whether if evidence of PPD’s status had been introduced, that would have constituted a “reasonable probability” that Saint John would face violence if he returned to Haiti.
How a man’s life can hang on such a bizarre interpretation of the facts and of the meaning of “reasonable probability” takes my breath away.
(In its ruling, the Third Circuit quoted from a previous ruling that This “reasonable probability” standard does not require a petitioner to show [that] counsel’s deficient performance [changed] the outcome of the case, or even that a different outcome was ‘more likely than not’; instead, we have cautioned, ‘reasonable probability’ means merely a ‘significant possibility.’)
The facts of the case alone cry out that reasonable probability exists. And the marked increase in Haitian political brutality since Saint John fled should have made “reasonable probability” all the more self-evident–––including decrees equating political opposition with domestic terrorism.
The Third Circuit Court of Appeals reversed the decision and sent the case back to the Immigration Judge. The Court’s opinion by Judge Roth is a concise and powerful read. The link to it is at the end of this post.
I imagine Judge Roth was tempted to write plainly, thus injudiciously, about what he thought of the Immigration Board. Lacking common sense, lacking a sense of decency, and in such a hurry to get through cases, they remained unaware or simply didn’t care that they were within a whisker of sending a man back home to be tortured and killed. Careless and uncaring can be a deadly combination. So can hopelessly overworked and overwhelmed immigration judges.
What to make of this? I can despair that the existence of this case means that there are likely many more Saint Johns who did not receive the legal services of an appellate lawyer like Robert Painter from the American Friends Service Committee, a Quaker non-profit that battles immigration injustice.
Or, as I prefer to do, I can be grateful that in Saint John’s case, justice seems to have prevailed. To use one of my favorite cliches, sometimes we have to cease to curse the darkness and be thankful that someone somewhere decided to light a candle.
https://www2.ca3.uscourts.gov/opinarch/211729p1.pdf?utm_medium=email
it is so irritating that the people who "get" to make the decisions, are often too lazy, ignorant or simply don't care - about the truth. in most cases, it is pennywise and pound foolish. had the first judge bothered to do his theoretical job, the department would have saved money in the long term as they wouldn't have had to try the same case thrice! idiotic! not dissimilar to a recent story i saw on CNN referencing the INNOCENCE PROJECT and case on a young man called C.J. Rice. as a mother of 2 sons, wow - irritating to say the least! these people are all victims of the systems into which they find themselves. while i try to have respect for the "system" i think now - so much is simply broken within the U.S. that "things" will simply get much worse until decades from now, the next generation can slowly fix it due to what will inevitably be - a new societal order. thnx for posting.
Sad story. And most people knew just from the news how corrupt and dangerous the Haitian governments and independent groups of heavily armed bandits have been for decades! (I tried to go to Haiti last month to see our new school but had to cancel for fear of getting killed.)