I recently read an article in the Washington Post about the treatment of political activists in Iran: "Protesters arrested in Iran face a justice system stacked against them." Political detainees in Iran are denied due process of law, denied access to a lawyer, and forced to litigate their cases in a tribunal that acts more like a prosecutor than like a neutral arbiter. Reading about the situation in Iran, I couldn't help but think of my own clients' experience with EOIR--the Executive Office for Immigration Review, the agency that oversees our nation's Immigration Courts and the Board of Immigration Appeals.

Here, we'll look at some of the practices in Iran and compare them to what we see every day in U.S. Immigration Court.

According to the Post, about 15,000 people have been arrested during recent political protests in Iran. "Some of the detained are released with a fine. Others are tried in a criminal court. But political prisoners typicallyface the feared revolutionary courts, a parallel system created to protect the Islamic republic...." Public trials will start in the coming weeks, but "rights groups expect they will be sham trials, relying on fabricated evidence and confessions made under duress or torture." This is a good starting point for us to compare the practices in Iran with those at EOIR--

Iran: Trials rely on "fabricated evidence and confessions made under duress or torture."

EOIR: Fortunately, it is rare to hear about fabricated evidence or torture in the U.S. (though it does happen--see here and here). But it is common to hear about interviews made under duress or without a proper interpreter, or that have simply been transcribed inaccurately. We see these all the time. Asylum applicants are often interviewed at the border (invariably without a lawyer) and the interview is written down, but the transcript is not accurate. This happens for different reasons: The non-citizen was exhausted from a long, difficult journey and was not thinking clearly during the interview; the interpretation was not accurate; the transcriber did not record the interview properly. Later, in Immigration Court, this inaccurate transcript is used against the applicant, to attack credibility.

Iran: "Detainees have been accused of committing violence and killing Iranian security forces with little or no evidence."

EOIR: Under our overly-broad anti-terrorism laws, even people who were forced under duress to provide support to a terrorist or guerrilla group--in other words, the victims of terrorism--can be barred from asylum as "terrorists." This is not theoretical, and I have seen instances where people who are completely innocent were barred under our terrorism laws based on the slimmest suspicion of the adjudicator.

Iran: The "Iranian judiciary system is the 'supreme leader' judiciary system ... referring to Ayatollah Ali Khamenei, the head of Iran’s theocratic government."

EOIR: In the United States, the Attorney General has the authority to interpret the Immigration and Nationality Act (our nation's immigration law), and Immigration Judges are bound by those decisions. President Trump's AGs used their authority more frequently than their predecessors in an attempt to reduce eligibility for asylum. While this authority is technically not absolute, for most asylum seekers, decisions by the AG are effectively the law of the land, and many an asylum case has been denied based on an AG's precedent decision.

Iran: "The revolutionary courts work closely with the intelligence wing of the Islamic Revolutionary Guard Corps... the supreme leader’s parallel security force."

EOIR: Immigration Courts are part of the U.S. Department of Justice, and the "prosecutor" in those courts is ICE (Immigration and Customs Enforcement), which is part of the Department of Homeland Security. Both agencies--DOJ and DHS--are part of the Executive Branch. A disproportionate number of IJs are former ICE attorneys, and judges often provide favorable treatment to DHS by routinely accepting late-filed documents, granting DHS reschedule requests for all sorts of reasons ("Sorry, your Honor, we do not have the file today"), and acquiescing to DHS's enforcement priorities. While many IJs are fair and impartial, many are not, and it's common to see judges who act more like prosecutors than neutral decision makers.

Iran: "The revolutionary courts rely on one judge, instead of the panel of judges used in criminal courts."

EOIR: In the salad days of EOIR, the Board of Immigration Appeals--the supposed "Supreme Court" of immigration law--decided cases in three-judge panels. But then, in 2002, the rules changed so that most cases are now adjudicated by one judge (called a Board Member). While this is perhaps more efficient in terms of the number of cases decided, it has reduced the quality and consistency of decision-making: If you get the right Board Member, you can win; if you get the wrong Member, you lose.

Iran: "Political prisoners have limited or no access to their lawyers and cannot see the alleged evidence against them."

EOIR: Certain asylum seekers in the U.S. are detained, most commonly, people who have arrived at the border or an airport, and have requested protection. Many detention centers are in locations where lawyers are in short supply, even if the detainee can afford to hire an attorney, and the sad fact is, many detained asylum seekers are forced to present their case without legal assistance. Such cases are far less likely to be approved.

In addition, in some cases, asylum seekers are not permitted to see the evidence against them. This happens where there are certain national security issues, which is more understandable, but it also occurs when DHS simply does not wish to disclose the source of it's evidence. For example, I litigated several cases where DHS claimed my clients had fake documents. DHS purportedly knew that the documents were fake because they had examples of real documents. But we were not permitted to see the (supposedly) real documents in order to make our own comparison. Without access to the documents, we cannot know whether this "evidence" is legitimate.

Iran: "[As] demonstrations continue, and arrests increase, it will be difficult for lawyers to keep up... judicial authorities effectively 'copy and paste' charges."

EOIR: The number of people entering the Immigration Court system has exploded over the last several years. In response, EOIR has dramatically increased the number of Immigration Judges and randomly rescheduled and advanced thousands of cases. The very predictable result is that lawyers cannot keep up. And when lawyers cannot get their work done, asylum seekers are denied due process of law.
The fact that it is so easy to compare Immigration Courts in the U.S. with revolutionary courts in Iran strikes me as terribly sad. But that is where we are.

In 2014, former Immigration Judge and head of the judges union, Dana Leigh Marks, famously observed that Immigration Courts adjudicate "death penalty cases... in traffic court settings." Since then, the situation has only gotten worse--much worse. Perhaps EOIR will pay attention to the many complaints from practitioners and immigrants' rights groups. Perhaps. If not, the agency that is meant to "adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws," will continue to spiral towards illegitimacy.

Originally posted on the Asylumist: www.Asylumist.com