Originally Published in The Intercept
John Washington - October 9, 2020
Barrett has a thin record on immigration but could play a key role in this hyperpartisan area of law on the Supreme Court.
IN EARLY MARCH 2013, Gerson Alvarenga-Flores was in a taxi with three friends, on his way to a birthday party in a rural town outside of La Unión, El Salvador. Suddenly, two men with rifles appeared in the road ahead and signaled for the taxi to stop. The men were both members of the MS-13 gang. When the passengers refused to exit the taxi, the gang members began shooting.
Three of the passengers were shot: One was grazed by a bullet, another severely wounded — though he would survive — and a third killed on the spot. Alvarenga had remained in the taxi, which had started reversing away during the scramble. He was left without a scratch. He went to the police, who told him that “they couldn’t be responsible for what had happened or for our lives,” according to a transcript of his asylum hearing.
Soon after the attack, Alvarenga started receiving threats: The gang members didn’t want a witness to their murder left alive. On his way to classes at the university where he was studying systems engineering, the same gang members he had encountered stormed onto a bus to confront him, but he was able to jump off and, again, escape.
Alvarenga hid out for a couple of months, but soon realized he had no hope left for a life in El Salvador. He fled to the United States to ask for asylum.
His five-year search for protection would eventually be denied in 2018 by Supreme Court nominee Amy Coney Barrett, then a judge on the 7th Circuit Court of Appeals, based on the technicality of minor discrepancies in Alvarenga’s story that a dissenting judge called “trivial.” After her decision was issued, Alvarenga was deported back to El Salvador, just before Christmas in 2018.
Now, Alvarenga hardly leaves his parents’ small property for fear he’ll be spotted and killed. “I can’t go anywhere, not even to the park. I can barely work,” he said. “This isn’t life.”
As the Senate confirmation hearing approaches, Barrett’s judicial record and past statements on hot-button legal issues like abortion and health care are being carefully picked apart, but her immigration record has come under less severe scrutiny. And, while as a 7th Circuit judge — nominated by President Donald Trump and confirmed by the Senate in 2017 — she only issued five immigration-related decisions, she very well may play a key factor in the hyperpartisan realm of immigration law.
Alvarenga’s story speaks not only to how Barrett might rule on such immigration cases, but to the systemic regulatory disaster of the U.S. asylum process itself: how it fails to protect the persecuted.
Whether Trump or Joe Biden wins the presidential election, a raft of immigration-related cases could reach the Supreme Court in the next four years. But four more years of Trump’s harsh policies would likely engender continued — and more consequential — legal challenges. Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, told The Intercept that there are a number of “consequential immigration cases that could come before the Supreme Court,” including cases on the public charge rule — which serves to bar poor people from migrating to the U.S. — further attacks on asylum, and other changes to the regulatory system.
Considering her immigration-related decisions from the 7th Circuit, Michael Kagan, a law professor at the University of Nevada, Las Vegas, and author of “The Battle to Stay in America,” 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” — the decision itself adhered to a system of laws whose gears are gummed up by more than a century of anti-immigrant vitriol.
(The White House did not respond to a request for comment about the Alvarenga case and Barrett’s immigration record.)
Barrett’s other immigration decisions on the 7th Circuit also point to a tight, textual analysis. She dissented from a ruling in which the majority blocked the Trump administration from wielding a “public charge” rule: the racist, classist, misogynist, centuries-old club the government has long wielded to keep out the immigrants it doesn’t want. Barrett even acknowledged in her dissent that some critics view the public charge rule as “too harsh.” Nonetheless, she would have upheld it.
In another case, however, she ruled against the Trump administration’s attempt to end the use of administrative closure, a tool judges can use to stop deportations in complicated or lengthy proceedings — especially when the immigrant may be eligible to stay legally if given enough time to process an application — and which also allows them to prioritize other cases.
For Alvarenga, that Barrett’s rulings are based strictly on the word of the law are little comfort. Under the law, she could have ruled differently — not only in his case itself, but also in a procedural matter that would have kept him safer upon deportation — but Barrett chose not to use her discretion, failing to take the dangers Alvarenga faced into account in her ruling. In Alvarenga’s eyes, Barrett had the last say in his case and failed to offer him protection. Now, he fears for his life.
“I followed the migration laws,” Alvarenga said. “I respect those laws. But the system, and those who apply the laws, they got it wrong.”
“IT HURTS TO think about it,” Alvarenga said of the attack and ordeal that followed. “From one night to the next morning, my life was ruined.” He never was able to finish his degree. After fleeing, he spent more than two years in what he referred to as prison — a series of immigration detention centers in the United States — while fighting for asylum. His name was smeared in the local press when Salvadoran police, in cahoots with MS-13, issued an arrest warrant for him, triggering an Interpol red alert. His family, too, received death threats. His mother said there were “over two hundred calls” in the weeks following the attack, including demands for thousands of dollars, which they didn’t have.
The reason he ultimately lost his plea to stay in the U.S. goes back to the details of the attacks themselves. There were two minor inconsistencies between a written 2013 declaration about the attacks and Alvarenga’s version of events presented in person before the courts in 2017 — both related to vehicle doors. The first declaration, Alvarenga explained, was made over the phone while he was in immigration detention, where he couldn’t hear his attorney well and the line kept cutting out. Transcripts show that initial immigration judge would not allow him to explain the problems with the declaration in court — something Barrett could have interrogated but didn’t. His story, Alvarenga told me, has always been the same.
In the 2013 declaration, Alvarenga supposedly said that his friend José escaped from the front seat of the taxi and ran away, suffering only a graze wound. In his oral testimony in court, four years later, Alvarenga said that José was seated in the backseat with him and jumped out of the taxi from there. Likewise, the declaration said that, while riding to class, Alvarenga jumped out of the front of the bus to escape his would-be killers. But, in his in-court oral testimony, he said he escaped through the back door of the bus. He told me, again, that he had always maintained he had left out the back. “They got on in front,” he said, exasperated. “So how could I have gotten off in front? I couldn’t go through them.”
Judge Thomas Durkin, in his dissenting opinion to the appeal, saw the inconsistencies that came up in his court appearance as “trivial when considered in relation to Alvarenga’s broader story.” Still, these kinds of immaterial consistencies can be grounds for asylum denial, according to the 2005 REAL ID Act. The law, purportedly meant to deter terrorists from abusing the asylum system, not only required evidence to support claims, but allowed for judges to deny claims based on even minor discrepancies in an applicant’s testimony. Reichlin-Melnick gave the example of an asylum-seeker stating they were beaten “a few times” and then later specifying that they were beaten a dozen times — a difference that could be grounds for denial.
Kagan, the law professor, 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,” Kagan said. There are also no explicit requirements to take into account cultural differences or the effects of trauma. “Good judges should take all these things into account,” Reichlin-Melnick said. “But not all judges are good judges.”
Despite the constraints, judges have ample room for discretion, leading, for instance, to Durkin’s dissent in the Alvarenga case. By law, judges should also consider the “totality of the circumstances,” which entail the conditions of confinement, the fallibility of human memory — especially in regard to trauma — and the time between the act and the testimony. “Human beings are not automatons,” Reichlin-Melnick said. “Memory is fallible.”
About his time in detention, Alvarenga said: “It was a totalitarian space. You have to do everything they tell you. For a human being, that’s hard. I couldn’t sleep, I didn’t feel good. Psychologically, it was so hard. You even lose your sense of time.” He went for long periods, he told me, without even seeing the sun.
For advocates, however, adding insult to injury can come from a simple failure to acknowledge the circumstances of a case, even as part of a by-the-book decision against an asylum-seeker. As she ruled against Alvarenga, for instance, Barrett didn’t mention any of the context stacked against people like him: from the trauma of the initial incidents to navigating the labyrinth of immigration court to the cruelties of detention, all done outside of native languages. Barrett offered no comment on how any of that might have resulted in those discrepant details.
Then there 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.