He Sought Asylum After MS-13 Tried to Kill Him. Amy Coney Barrett Sent Him
Back Into Danger.
By John Washington, The Intercept
10 October 20
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 couldnt 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
didnt 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
Alvarengas 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 hell be
spotted and killed. I cant go anywhere, not even to the park. I can barely
work, he said. This isnt life.
As the Senate confirmation hearing approaches, Barretts 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.
Alvarengas 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 Trumps 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 Barretts 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 Barretts immigration record.)
Barretts 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 doesnt 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 administrations
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 Barretts 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 Alvarengas 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 didnt 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 Alvarengas 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 couldnt 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 didnt.
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 couldnt 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 Alvarengas 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
applicants 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 Barretts 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 Durkins 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, thats hard. I
couldnt sleep, I didnt 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 didnt 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 Barretts 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
didnt want the gangs or the corrupt local police in El Salvador to realize
he was being sent back. He didnt want to be a target again. Barrett refused
his request.
