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America’s toughest road to asylum runs through the Omaha immigration court

Omaha’s immigration court now denies the highest rate of asylum claims in the U.S. How did it become the nation’s roughest for asylum seekers?
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Posted at 5:11 PM, Jul 09, 2023

Immigration Judge Alexandra Larsen tapped notes into her computer as Cristian Rivera tried to convince her not to send his family back to El Salvador.

It was a Wednesday morning in June in Larsen’s courtroom, located inside a brick building on the city’s eastern edge that most Omahans have never visited – immigration court. Rivera’s wife and 11-year-old son watched their futures decided from behind a short wooden gate.

Rivera told the judge that his brother-in-law, a member of one of the notorious Maras gangs, threatened his family in January 2019: Either store my guns at your home, or else.

Days later, the family abandoned most of their belongings and set out on a 2,800-mile journey that eventually landed the Riveras in central Iowa.

As he implored Larsen to grant him legal status in the U.S., the 33-year-old Rivera, speaking in Spanish, said that he fears the gang would “take our lives” if they return to El Salvador.

“The only place I feel safe is in this country,” Rivera said, his words translated to English by the court’s interpreter.

Fifteen minutes after hearing closing arguments, Larsen returned to the courtroom to deliver her verdict.

The decision Larsen read aloud to Rivera, his wife Bertha and their son Cristhian carried the same result that the Omaha judge handed down to 97% of asylum seekers between October 2019 and September 2022.

Denied. No asylum for the Riveras. They would have to leave the U.S.

Omaha’s immigration court, situated in a federal building most drivers whiz by on their way down Abbott Drive to the airport, has increasingly become a place dreaded by immigrants seeking asylum and the lawyers who represent them.

The judges who decide cases in Omaha denied more than 96% of asylum applications they ruled on between October and May — the highest rejection rate of any American immigration court. Nationally, the asylum denial rate is roughly 53% over the same period, according to a Syracuse University research center that tracks asylum cases.

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Tens of thousands of immigrants come to the U.S. every year to apply for asylum, a legal designation meant to protect those fleeing persecution due to their race, religion, nationality, political beliefs or membership in a specific social group.

A surge in asylum applications paired with the COVID-19 pandemic has buried the Omaha court and others like it under a massive backlog of cases. Asylum seekers living in Nebraska and Iowa, the Omaha court’s geographic footprint, regularly wait several years before getting an individual hearing before a judge.

While most immigration courts have started granting asylum more often since President Joe Biden took office, Omaha’s judges have headed in the other direction.

The rate of asylum denial in Omaha has surpassed several southern courts, including large courts in Georgia and North Carolina, historically known by immigrant advocates as tough on asylum.

“Omaha is the new Atlanta,” said Austin Kocher, a research professor for the Syracuse University immigration database known as TRAC.

Asylum seekers are much less likely to succeed in Omaha because of the judges’ narrow interpretation of asylum law, immigration attorneys and experts say.

The Omaha asylum success rate is also low because Central Americans and Mexicans – who make up most of the claims here – generally have more difficulty winning their cases than other groups, the database shows.

Larsen, reading her decision in the courtroom, said the Rivera family’s testimony was credible – but also didn’t meet the high standard of persecution under asylum law.

It isn’t enough to have a “subjective” fear of harm at the hands of a gang, she said. The family had not been physically harmed and the threats made against them were vague, the judge said. Rivera’s dispute with his brother-in-law was a personal matter and not evidence that the family had been targeted because of their social group, she said.

Cristian Rivera initially told the Flatwater Free Press he didn’t intend to appeal Larsen’s decision because it would land them back in the same situation, but Iowa-based immigration attorney Trey Sucher said he later convinced the family to petition to a higher board of judges.

The appeal allows them to stay legally in the U.S. for several years as the case plays out, but if Larsen’s decision stands, the family could face an order of deportation to El Salvador.

If that happens, they will be returning to a country where the brother-in-law who threatened them, since charged with murder, is believed to have skipped bail, Rivera said. The family is afraid he’s waiting for them.

From ICE to the bench 

Three judges decide the vast majority of cases at the Omaha court: Larsen, Abby Meyer and Matthew Morrissey. All of them denied more than 80% of the asylum cases they decided between their initial appointments and the end of September 2022, according to a TRAC analysis.

All three worked as attorneys for Immigration and Customs Enforcement – the agency’s version of prosecutors – before taking the bench. One, Morrissey, appears to have experience defending immigrants as a private attorney.

Gail Montenegro, a spokeswoman for the Executive Office for Immigration Review, declined interview requests on behalf of the three judges.

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Immigration lawyers argue that the judges’ shared background, and their prosecutor-like interpretation of the law, have helped make Omaha’s court so difficult for asylum seekers.

“They went from basically trying to carry out the objective of the Department of Homeland Security and trying to remove everyone to being put at the bench and tasked with trying to be impartial in determining whether or not a given individual qualifies for the relief sought,” Sucher said. “Humans are imperfect and trying to completely transition yourself from that history is difficult.”

Larsen and Meyer were appointed by attorneys general serving under former President Donald Trump, while Morrissey’s nomination to the court came late in former President Barack Obama’s administration.

The trio of judges still appear to be applying Trump-era interpretations of immigration law despite a recent loosening of asylum policies under Biden, said Brian Blackford, an attorney who has defended asylum seekers before the Omaha court for 15 years.

Those Trump-era rulings, since rescinded, made it nearly impossible for victims of domestic violence or gang violence to win asylum.

Paul Stultz, a former ICE attorney who retired in 2017, said Larsen, Meyer and Morrissey were fair and unbiased when he worked with them at ICE, noting that the three exhibited qualities desired in judges.

As ICE attorneys, Larsen, Meyer and Morrissey were able to recognize strong asylum cases, and occasionally chose not to contest them, Stultz said.

In a statement, Montenegro, the court spokesperson, said immigration judges decide claims on a case-by-case basis according to federal law.

“Immigration judges consider all evidence and arguments presented by both parties, including country conditions, and decide each case in a manner that is timely, impartial, and consistent with applicable law and case precedent,” the statement said.

A spokesman for ICE declined to comment for this story.

‘The case law is not on our side’

The nationality of asylum seekers plays a major role in their chance of success, and the Omaha court handles one of the highest concentrations of cases from Central America and Mexico. Like the Riveras, most asylum seekers from the region face long odds of winning — regardless of which court handles their case.

Nine in ten asylum seekers whose cases were decided in Omaha from October to May came from Guatemala, El Salvador, Honduras or Mexico, according to TRAC data.

Over the last three fiscal years, U.S. immigration courts have denied about 70% of cases from those four countries — much higher than the denial rate for asylum seekers from elsewhere.

That’s because asylum law isn’t protective of immigrants fleeing economic hardship or gang violence, said Stultz, the former ICE attorney.

Many Central American and Mexican claims, including the Riveras’ case, hinge on one of those concepts.

Central American asylum seekers often have stories that sound harrowing. That doesn’t mean they reach the legal threshold for asylum, Stultz said.

Nearly all of Omaha immigration lawyer Rachel Yamamoto’s clients claim they are fleeing gangs or an abusive relative. Yamamoto agrees with Stultz that these are harder cases to win.

“The case law is not on our side,” she said.

Anna Deal, legal director at the Immigrant Legal Center, said the heavily Central American composition of the Omaha court’s caseload “is not a valid justification” for its extremely high denial rate, noting that some claims from those countries should be granted.

The U.S. immigration system is “historically based on racial exclusion,” she said, and asylum seekers from countries with non-white populations tend to be on the outside looking in.

“There seems to be a bit of a double standard,” Deal said. “Even in the face of evidence that particular countries are effectively failed states … (judges) are willing to find the government is doing enough and that these people just have to live with a level of insecurity due to their national origin.”

The Omaha court’s denial rate can’t be solely attributed to the national origin of the asylum seekers. Several courts that approve a greater proportion of asylum cases, including Charlotte, Kansas City and New Orleans, have similarly high rates of Central American and Mexican asylum seekers, according to a Flatwater Free Press analysis of TRAC data.

It is hard to know what happens to most people who walk into the Omaha courtroom hoping for a path to citizenship and walk out after being denied asylum.

Many appeal to a board of judges that rarely overturns denials. Some are eventually deported to their home countries, Yamamoto said, but she suspects many of her former clients fade from the government’s radar and remain in the country as undocumented immigrants.

Denied and deported 

Lacy Lorenzo lived through the most devastating possible outcome of losing an asylum case in Omaha.

Luis Lorenzo, her future husband, came to Omaha from Guatemala as a young child in the early 1990s with his family, which held ties to an opposition political party. Several uncles and cousins had been assassinated in Guatemala, and the country remained unsafe for the family decades later, Lacy Lorenzo said.

Lorenzo grew up undocumented before a criminal charge landed him in deportation proceedings.

Lacy Lorenzo remembers saying at the time, “If you send him back, you might as well kill him yourself.”

Larsen denied Lorenzo’s asylum claim in 2020. He was deported to Guatemala, leaving a wife and two children behind in Omaha.

When he arrived, he barely spoke Spanish, and stuck out as an easy target in the Central American country, Lacy Lorenzo said.

In March 2021, Lacy Lorenzo got a call that her husband had been shot dead while walking out of his home. Luis Lorenzo had been in the country less than six months.

In an interview, the widow said she blames Larsen and the Omaha court for her husband’s death.

Montenegro declined to comment on Luis Lorenzo’s case, but said “immigration judges are all highly trained professionals who adjudicate cases fairly, equitably, and efficiently.”

Two years after Luis Lorenzo’s slaying, his widow is raising a 16-year-old girl and a 10-year-old boy alone. The single mother hopes the Omaha immigration judges will “actually give people fair consideration” in the future and remember that deported immigrants leave their families and communities behind.

“I feel like those (judges) are allowed to play God,” Lacy Lorenzo said. “They’re making life-or-death decisions.”

The Flatwater Free Press is Nebraska’s first independent, nonprofit newsroom focused on investigations and feature stories that matter.

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