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Crossing to Safety

By Megan Kinneyn | Jan. 2, 2007

Law Office Management

Jan. 2, 2007

Crossing to Safety

Twenty-one-year-old Ousmane Bathily came to this country from the Republic of Congo in 2002 after his father was murdered. He wants to stay. But first he has to get through immigration court. By Bill Blum

By Bill Blum
      At a time when asylum decisions seem increasingly arbitrary, what chance does one African refugee have?
      It's business as usual at immigration court in downtown Los Angeles. Small clusters of families, speaking a polyglot of languages from Spanish to Armenian, congregate outside the first-floor elevators, en route to morning appearances on the upper floors of the City Bank high-rise across the street from historic Pershing Square. A few young children fidget and complain, but there is no pushing or shoving, no sense of urgency.
      Inside one of the elevators, some obviously new attorneys wonder aloud what the morning holds in store. A gray-haired veteran intrudes. Without introducing himself, he says with a broad smile, "It all depends on what kind of judge you draw. There are basically four types: Nice guys who grant cases. Nice guys who deny. Nasty guys who grant. And nasty guys who deny." He pauses a long moment to assess the newbies before the elevator door opens onto the 14th-floor foyer, where the court calendars are posted. "You'll find out who's who real fast."
      The master calendar on this late-July morning is being handled by Judge John F. Walsh, whose courtroom?also on the 14th floor?looks very much like its superior court counterparts, except it's decidedly smaller. He has a total of 17 cases to wade through. The cases move quickly, with Walsh setting continuance dates for additional preliminary proceedings or hearings on the merits of deportation charges. Some dates are set as far in advance as six or seven months.
      Most of the aliens are represented by counsel. Many have raised political-asylum pleas as defenses to deportation. On this particular morning, one of the asylum applicants is Ousmane Bathily, a 21-year-old native of the Republic of Congo. Dressed neatly in a dark, short-sleeve button-down shirt and pressed chinos, Bathily stands no more than five-feet, eight inches tall, with the slender physique of a long-distance runner. Bathily speaks both Fulani, a West African language, and French. His lack of English results in some confusion after his name is called, because no interpreter has been retained for the hearing. The judge, however, is able to quickly get a handle on the situation, if only because Bathily's attorney, Curtis Pierce, is fluent in French.
      Above the constant din of litigants and lawyers moving in and out of the courtroom, it's difficult to hear the ensuing colloquy between Walsh, Pierce, and the Department of Homeland Security (DHS) trial lawyer assigned to the case. But this much is clear: Bathily's case has come to Los Angeles on a change of venue from New York. He has no relatives in this country and has lost all contact with his mother, who presumably remains in Africa. Worse still, Bathily has no valid passport or birth certificate. (The validity of a birth certificate that he submitted in New York was deemed inconclusive.) So, at least initially, the key issue for the judge is Bathily's identity: Can he prove who he is and where he comes from?
      Pierce tells Walsh that Bathily only recently retained him and that he has not had sufficient time to review the file he inherited from his client's New York attorney. He asks for a continuance to prepare. Walsh grants the request and, despite internal court guidelines that give judges only six months to decide asylum cases, sets a new hearing date for mid-October?nearly three months away. In the meantime, he orders that Bathily must provide DHS with a set of fingerprints.
      At first blush, Bathily's chances of success don't look good. According to a ten-year study by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, the median rejection rate for asylum applications is 65 percent. (For those without legal representation, it's far higher, 93 percent.) Moreover, Bathily's hearing comes at a time of intense debate over the nation's immigration policies. Questions have been raised not only about the effectiveness of enforcement of the country's immigration laws but also about the ethics and competence of the lawyers who work in the field and the judges who staff the immigration courts.
      Going forward, Bathily's fate will rest in large part with Pierce. If credentials are any indication, Pierce has all the necessary tools and talent. A sole practitioner, Pierce has practiced immigration law since 1987 and is a State Bar certified specialist.
      "I could have gone into general civil litigation and earned more money, but I've always been drawn to foreign cultures," Pierce says of his decision to take up immigration law. "And like many other practitioners, who are either immigrants themselves or children of immigrants, I have a personal connection: My parents were Holocaust survivors who came to this country from Poland."
      To do well in this field, he continues, "You not only have to master a complex and ever-changing body of law and procedure, you have to be able to communicate. It definitely helps to speak multiple languages." In addition to French?which he mastered in the nineties during a three-year sabbatical when he taught U.S. constitutional law at the Sorbonne in Paris?Pierce speaks Spanish fluently, extremely helpful when dealing with a clientele that is 60 percent Latino.
      His is a high-volume practice, with more than 100 open cases at any time. Bathily was referred to him by a French-speaking former client from Mauritania, whom Bathily met in L.A.'s garment district, where he currently works. Pierce says he took the case?which by now has absorbed hundreds of hours?for a "reduced fee."
      Asylum is one of three basic defenses that can be raised in deportation cases. The other two are "cancellation of removal," which requires ten years of continuous U.S. residence, among other criteria, and "adjustment of status," which is based on relationships to U.S. citizens or lawful permanent residents. The latter is also available to skilled workers in high demand who have obtained labor certification from the federal government.
      To prevail on an asylum claim, an alien must establish a well-founded fear of persecution if returned to his or her country of origin on account of race, religion, nationality, membership in a particular social group, or political opinion. (8 U.S.C. § 1101(a)(42).) In such matters, Pierce says, "I tend not to second-guess my clients."
      In Bathily's case, as in most such cases, the outcome will likely turn on his credibility rather than a mass of supporting documentation. As Pierce points out, "People often don't have time to gather their identity documents when they have to leave their homelands under extreme duress and persecution." The Ninth Circuit, he points out, has held that a finding of refugee status "can be founded on an alien's credible testimony alone." (Ladha v. INS, 215 F.3d 889 (2000).)
      In August, about a month after the initial hearing before Judge Walsh, Pierce offered to serve as interpreter for Bathily in an interview for this magazine. Through Pierce, Bathily recounted his exodus from Brazzaville, the capital of the Republic of Congo, also known as Congo-Brazza.
      Like the Democratic Republic of Congo (DRC), its larger neighbor to the east, Congo-Brazza has a tumultuous recent history steeped in ethnic and regional conflict. In June 1997 the tumult erupted into full-scale civil war between the supporters of elected president Pascal Lissouba and the nation's former military ruler, General Denis Sassou-Nguesso. By October of that year, Lissouba was forced into exile as Sassou-Nguesso seized the presidency, which he holds to this day.
      Although Bathily's parents were not political activists, they were members of the southern-based Lari tribe and backers of Lissouba. In November 1997, Bathily says, his father was murdered by Sassou-Nguesso's northern-based Cobra militia. Bathily, together with his mother and two younger siblings, was forced to flee, leaving behind his worldly possessions, including all identity papers.
      The family embarked on a perilous odyssey, first crossing the Congo River in a small boat to the DRC. From there, they made their way to Mali, where Bathily's mother worked as a street vendor, scraping together the $1,000 it cost to buy her older son a black-market passport and pay a smuggler to arrange for a ticket to fly Bathily to Ghana and Senegal, and ultimately, in September 2002, to New York. The rest of the family, unable to raise funds, remained behind.
      Bathily's phony passport looked good enough to get him past immigration and customs authorities at JFK airport. At the suggestion of his smuggler, Bathily then headed for Brooklyn, where he wound up sharing a two-bedroom apartment with eight to ten other African émigrés. Acting on a tip from a friend two months later, he submitted an application for political asylum, a step?as Pierce confirms?that eventually allowed him to work legally, delivering pizzas and holding down other menial jobs. But in 2003 the Justice Department determined Bathily had not established refugee status, and it initiated deportation proceedings. In New York he made three immigration-court appearances; a hearing on the merits was postponed when his interpreter failed to appear. Finally, in 2005, with government permission, Bathily relocated to Los Angeles to live with a friend and take a sales job in a clothing store while he waited for his next deportation hearing.
      "Before the civil war," Bathily says, "we had a nice family life. After that, life in New York was very sad, very hard, and very cold. But I held up. I had no other choice." His last contact with his mother was in November 2003, when he received a handwritten letter from her. In it she gave thanks to God that her son was in the United States, and she urged Bathily never to return to the Republic of Congo. Now living in L.A., Bathily says that apart from his fear of being deported, he is happy and is learning to speak English. "I even have my own bedroom," he says. "I'll stay as long as I can."
      Of course, whether he gets to stay remains an open question. Pierce understands only too well that some DHS prosecutors, with good reason, are skeptical of asylum claims. "From the government's perspective, aliens have a strong incentive to exaggerate fears of persecution," he acknowledges, "and it's widely believed there's a lot of fraud going on out there. If aliens have no other form of relief from deportation, many will routinely apply for asylum. Doing so buys them time and gets them permission to work while their cases are adjudicated."
      To a large extent, Pierce blames this jaundiced view on lawyers who work in tandem with unscrupulous nonattorneys and consultants, known in Spanish as notarios. "Most immigration lawyers," he says, "take great pride in their work. But the ones who deal with notarios often come to court at the last minute without knowing their clients."
      Pierce is not alone in his contempt for these practitioners. Victor Nieblas, an immigration attorney from Los Angeles, calls them "hallway lawyers," because it's in court hallways that they usually meet their clients for the first time. "They bring disrepute to the entire immigration bar," he says. "Some are young and don't know what they're doing when they take referrals from notarios; others may feel they're getting good money. But they do a disservice to the system."
      The notarios are a big business, according to Nieblas, who has studied the issue as a national board member of the American Immigration Lawyers Association. "A lot of immigrants are desperate. They drive around and see all these little shops with their 'notario' signs and, thinking that the word means the same as it does in Latin America [where it refers to a licensed lawyer], they believe they've found an attorney. Once they get these people inside their offices, the notarios convince them they can get them legal status by filling out applications for asylum and other types of relief that have no merit."
      It's not just a problem for Latinos. In fact, according to Nieblas, the notarios also prey on Koreans, Chinese, and Armenians. "By the time I get to see clients who have consulted with notarios," he says, "the fraud has already taken place and the damage often cannot be undone. In some cases, deportation orders already have been signed."
      Both federal and state authorities have long grappled with the fallout from attorney-notario arrangements. The Executive Office of Immigration Review (EOIR) is the Justice Department agency that manages the country's immigration courts. It enforces the Professional Code for Practitioners (8 C.F.R. 1003.101), which proscribes various abuses such as charging grossly excessive fees, knowingly making false and misleading statements, and assisting others in the unauthorized practice of law. Anyone who believes an immigration practitioner has run afoul of the regulations can complain in writing to either the EOIR or the DHS. Indeed, the EOIR's website (www.usdoj. gov/eoir/profcond/chart.htm) contains a list of more than 200 attorneys nationwide who since 2000, through the complaint process, have been either expelled or suspended, preventing them from appearing before the immigration courts.
      In California, immigration consultants are required to post a $50,000 surety bond with the secretary of state. Although these consultants are permitted to offer "nonlegal" help with completing forms, they are required to disclose that they are not attorneys (the unauthorized practice of law is a misdemeanor). Furthermore, they are barred from offering guarantees of results or holding out the prospect of obtaining special favors or privileged treatment from immigration authorities. (Cal. Bus. & Prof. Code §§ 224022443.3.) And since January 2006 the State Bar has been authorized to apply directly to the superior courts to assume jurisdiction over the caseloads of wayward nonattorneys. (Cal. Bus & Prof. Code §§ 6126 and 6126.3.)
      By all accounts, such reforms are welcome, but by no means are they viewed as a panacea. "There are thousands of these notarios," says Nieblas. "You shut them down in one location and they open up in another."
      Apart from the notario issue, perhaps the most crucial problem facing the immigration courts is the quality of the judging. A year ago, after widespread complaints about incompetence and lapses in judicial temperament, Attorney General Alberto R. Gonzales ordered a comprehensive review of the immigration courts and the Board of Immigration Appeals (BIA).
      Many of these complaints can be found in federal circuit court opinions. In one famously scathing opinion, a three-judge Ninth Circuit panel rebuked a now-retired Los Angeles immigration judge's written decision in a political-asylum case as "incomprehensible." (Recinos de Leon v. Gonzales, 400 F. 3d 1185 (2005).) In another oft-cited critique, Judge Richard Posner estimated that the Seventh Circuit reversed 40 percent of the BIA cases that came before it. (Benslimane v. Gonzales, 430 F. 3d 828 (2005).) And in still another instance, Judge Dickinson R. Debevoise, sitting by designation in the Third Circuit, characterized as "extraordinarily abusive" the courtroom conduct of an immigration judge during an asylum case in which a woman was ordered deported to a country where she had been held as a sex slave. (Fiadjoe v. Attorney General, 411 F. 3d 135 (2005).)
      Meanwhile, the number of immigration appeals continues to increase. According to the Harvard Law Review, immigration cases accounted for 18 percent of all federal appeals filed in 2005, up from 3 percent in 2001. And in the Ninth Circuit, immigration appeals made up 41 percent of the 2005 caseload. Much of this growth has been attributed to "streamlining" procedures?originally implemented in 1999 and expanded in 2002?that allow expedited review and summary affirmances of immigration cases heard by the BIA. The EOIR credits such changes with reducing the BIA's pending caseload from 56,000 in 2002 to 28,000 in January 2006. However, the Review reports that litigants dissatisfied with the BIA's rulings have in many instances simply shifted the backlog to the federal circuits. (119 Harv. L. Rev. 2596.)
      Still, the EOIR contends that reports of a judging crisis are highly exaggerated. "It is important to keep the criticism in perspective," says Larry Levine, the EOIR's counsel for legislative and public affairs. "The federal courts [as a whole] affirm the results of EOIR decisions more than 85 percent of the time."
      Furthermore, says Levine, immigration judges are "extremely productive adjudicators." In 2001, for example, the 208 judges in the immigration courts completed 259,475 matters, an average of 1,247 for each. The number of total completions, as well as the number per judge, has increased each year. With 212 judges in 2005, the immigration courts completed 352,287 matters, an average of 1,662 per judge. "We are not aware of any other adjudicative body that is more productive," Levine says.
      Denise Noonan Slavin, an immigration judge in South Florida and president of the National Association of Immigration Judges, understands this firsthand. "We're on calendar five days a week," she says. "We often hear three to four asylum cases per day, involving stories of rape and murder in foreign countries." Workload issues, she reports, are the union's No. 1 priority.
      They were also high on the AG's agenda when he announced the results of his immigration-court review last August. Though Gonzales said he was "reassured of the talent and professionalism" of the immigration courts, he also found "room for improvement." Among the changes he called for was the hiring of additional judges at both the trial level and the BIA. He also recommended increasing trial judges' sanction and contempt powers to help curb fraud and abuse among practitioners. Most far-reaching of all, he called on the EOIR to begin performance reviews and increase training for existing judges and administer proficiency tests to all new hires.
      These initiatives have found solid support within the immigration bar. "We're anticipating a more open and compassionate look at immigration law, especially in the asylum area," says Bernie Wolfsdorf, vice president of the American Immigration Lawyers Association. Point- ing to the long-range TRAC study at Syracuse, he notes that asylum-approval rates among judges have "varied phenomenally, forging a system more closely resembling roulette than justice." TRAC data show that though 10 percent of immigration judges denied asylum requests in at least 86 percent of the cases they heard, another 10 percent denied asylum in only 34 percent of their cases.
      If the most critical variable in an asylum case is indeed the judge, where does that leave Ousmane Bathily? According to TRAC, from October 1999 through December 2004, Judge Walsh heard 1,310 asylum cases, denying relief in 75.1 percent of them?above the nationwide norm of 61.9 percent for the same period. But if Walsh is at all like the other judges studied, adequate representation can make a big difference.
      Which brings us back to Curtis Pierce. "I thoroughly prepare each case," he says, "perhaps a little harder if I get a strict judge." When asked specifically about Judge Walsh, Pierce laughs a little nervously and brushes aside the statistics. "He's a thinking judge who cares about what he does," he says. "He carefully considers all the evidence."
      On October 13, Judge Walsh set Bathily's asylum case for a hearing on the merits for April 12, 2007. Until then, at least, Bathily will continue to enjoy his new life in Los Angeles.
      Bill Blum ( is an administrative law judge and freelance writer in Los Angeles.

Megan Kinneyn

Daily Journal Staff Writer

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