Mock Trial

Miamiís immigration judges are not interested in your problems

Ray and Kolner petitioned that the case be reviewed in the U.S. Supreme Court, arguing that their First Amendment right to opine had been denied to them as lawyers. The Supreme Court declined to hear the case.

Today a small replica of the Statue of Liberty stands on Ray's desk; the hand bearing the torch is broken off at the wrist. Ray and Kolner have not written a letter since. They can't think of any other attorneys who have, either.

Illustrations by Todd Julie
Illustrations by Todd Julie

The Board of Immigration Appeals is currently considering the case of a Colombian, Juan Carlos Ruano, who sought asylum in Miami. The BIA has denied Ruano once already, but a December 2005 opinion by the Eleventh Circuit Court of Appeals sent the case back down to the original immigration judge. The federal court stated the judge failed to provide specifics in his finding that Ruano would be safe in his own country.

The Colombian was a politically active member of the Liberal Union party in his native city of Palmito Valle. As political outreach, he would frequently visit rural communities, where he educated youth and helped coordinate public works projects, such as building roads to isolated enclaves. These actions put him on bad terms with the Revolutionary Armed Forces of Colombia (FARC), which had their own political interests in the area.

In September 2001, guerrillas stopped Ruano in a rural area. They kidnapped him and took him into the mountains, where a commander of the sixth front of the FARC threatened and beat him. The FARC commander told Ruano that if he did not stop his work in the area, he would be killed within a month.

On October 17, 2001, Ruano was staying at his grandmother's house when three shots were fired at the front door. He says FARC called the house immediately afterward and again threatened his life. He bought a ticket to the United States on October 28 and left Colombia two days later. On his written application, the Colombian added that another active member of the Liberal Union was assassinated in December 2001 for doing similar work.

In May 2006, the judge, Daniel Dowell, issued his second opinion. He believed Ruano had been threatened, he wrote. "His testimony was relatively clear and consistent with the information contained in the written application," states his opinion.

Yet in spite of conceding that Ruano was kidnapped, beaten, and shot at for his political work, the judge went on to define persecution according to a prior court precedent "as an 'extreme concept' requiring 'more than a few isolated incidents of verbal harassment or intimidation.'" He denied asylum for the second time.

"Mr. Ruano's case involves the unfortunate situation in which an Immigration Judge held that even though an asylum seeker credibly testifies that they were beaten, kidnapped, and subsequently had gunshots fired at their hiding place on the basis of his political opinion, that this suffering is somehow not enough to warrant a grant of asylum from the United States," wrote Leon Fresco, Ruano's attorney, in an e-mail to New Times.

"If the BIA affirms the Immigration Judge's decision in this case, the result will be the elimination of asylum as we know it," he continued. "If being beaten, kidnapped, and shot at on the basis of one's political opinion is insufficient to merit a granting of asylum, only the rarest of cases will be granted."

Fresco is not the only one to warn that the definition of persecution seems to have narrowed to the point of near-extinction. In a May 2006 case, Federal Appellate Judge Ed Carnes, one of the more conservative on the Miami court, dissented from a majority opinion to throw out the case of another Colombian asylum seeker denied by the BIA. Like Fresco, Carnes opined that the rejection indicated asylum was all but impossible in the Miami Court of Appeals. He concluded his dissent via the following statement:

"The majority opinion refers to the often-mentioned, but never sighted, 'rare case' in which the facts are so compelling that we will reverse an immigration judge's finding.... No published opinion of this Court has ever found that rare case, and today's decision indicates that such a case, like the fabled unicorn, exists only in our imagination."

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