An Asylum Decision by Judge Barrett

With politics a flurry in Washington, D.C., the nation awaits next week’s confirmation hearings for Supreme Court nominee Amy Coney Barrett.  Judge Barrett’s immigration decisions on the Seventh Circuit have been scrutinized as observers wonder how she might be on immigration matters as a Justice.

John Washington on The Intercept looks at Judge Barrett’s decision in Alvernaga-Flores v. Sessions (2018).  In that case, the Seventh Circuit denied the petition for review in an asylum case involving an ruling by by the immigration court that the Salvadoran asylum applicant, who testified that he feared persecution by the MS-13 gang, was n0t a credible witness.  Judge Barrett wrote for the court, affirming the Board of Immigration Appeals’ ruling denying asylum.  Judge Diane Sykes joined the opinion.  District Court Judge Thomas Durkin, sitting by designation, dissented in part, claiming that the adverse credibility determination was based on trivial inconsistencies in the testimony. 

Coincidentally, the Supreme Court  earlier this month granted certiorari in a pair of asylum credibility cases.  Because asylum applicants rarely have any other direct evidence of persecution, their testimony is extremely important to their asylum claims.  An adverse credibility finding is generally the death knell of an asylum claim.  The Ninth Circuit, which decides many asylum cases, has a well-developed body of rules for reviewing adverse credibility findings in asylum cases.

The article quotes immigration law professor Michael Kagan.  Kagan

“told The Intercept that Barrett’s stance was not necessarily anti-immigrant. `Some of her decisions would please the Trump administration and some would please immigration activists,’ Kagan said. While Kagan detected `no bias for or against immigrants’ — he called her ruling on the Alvarenga case `boilerplate’ and `a pretty straightforward decision based on the rules’ . . . . Kagan . . . said Barrett’s rulings were by the book. In the immigration court system, appellate judges defer to immigration judges’ decisions unless the facts ‘compel’ the judge to reverse the decision. `The court of appeals are not supposed to reverse a decision just because they have a hunch that it was a wrong decision.’”

At the end of The Intercept article, Washington made a particularly interesting observation:

“[T]here was a small piece of her final ruling that Alvarenga saw as disdain for his experience — an unnecessary swipe, apart from the decision to deport him, but casting a pall over that ruling nonetheless.

In Barrett’s decision, there is a footnote on page 2: Alvarenga, still scared for his life, had asked for his name to be redacted in the published record of his case — something the 7th Circuit has granted in similar cases. It would have brought a small measure of insurance; upon deportation, he didn’t want the gangs or the corrupt local police in El Salvador to realize he was being sent back. He didn’t want to be a target again. Barrett refused his request.”

Judge Barrett’s footnote read as follows: “Petitioner moved to redact his name from our opinion. Redaction is an extraordinary measure, and petitioner has not shown that it is war-ranted here.”

KJ