Amy Coney Barrett’s Troubling Record on Asylum and Immigration

By Julia Neusner, Rebecca Gendelman,

The Senate Judiciary hearings for Supreme Court nominee Amy Coney Barrett featured extensive exchanges on abortion rights, health care, and a few other hot-button issues. Largely overlooked, however, was the right to seek asylum and other immigration issues. With the committee set to vote on her nomination, we reviewed her record in this area— and discovered cause for deep concern.

As a federal circuit court judge, Barrett has overwhelmingly affirmed decisions denying asylum and other forms of relief to immigrants. Her rulings reflect a broad willingness to defer to the flawed decisions of increasingly politicized immigration judges. In humanitarian protection cases, Barrett has interpreted asylum eligibility narrowly, disregarded egregious forms of persecution, and failed to consider the impact of trauma on the testimony of asylum seekers.

Context is crucial. In 2017, President Trump nominated and the Senate confirmed Barrett to the Seventh Circuit Court of Appeals. That same year, then-Attorney General Jeff Sessions put in place a highly politicized hiring process, expanding the role of political appointees in the selection of new immigration court judges and overruling the judgment of immigration court staff. Since then, the administration has hired hundreds of immigration judges, including ones who have defended anti-Muslim and anti-LGBTQ causes, and promoted immigration judges who deny nearly all asylum claims.

In all but one of 25 immigration cases Barrett heard as a judge on the Seventh Circuit that we reviewed, she affirmed, or declined to review, decisions that went against asylum seekers and other immigrants. With these rulings, she upheld many decisions by immigration judges appointed by the Trump Administration under its hyper-politicized process.

Barrett’s dangerously deferential predisposition on immigration matters was on display in her ruling upholding the denial of a visa to a Zahoor Ahmed, a Yemeni woman. That ruling also denied her U.S. citizen husband a chance to challenge the decision, leaving the family separated. A U.S. consular official had denied Ahmed’s visa, alleging that the children included in her visa application weren’t hers. Barrett found the decision to be unreviewable despite extensive evidence that the children on the application were in fact the couple’s but had later tragically drowned in an accident. One of the other judges on the panel dissented from Barrett’s decision, writing that the ruling had denied Mr. Yafai an “important constitutional right”—the right to challenge the denial of his wife’s visa.

Barrett has consistently upheld denials of asylum and other forms of humanitarian protection (with only one exception), even in cases where applicants presented evidence of egregious persecution in their home country. For example, Barrett agreed with an immigration judge’s decision to deny protection to Maria Pomposo Lopez, a Mexican woman, and her children even though her persecutors had held her at gunpoint, attempted to abduct her daughter, and left phone messages in which they threatened to take her children’s organs. Barrett found that these egregious incidents did not amount to “grave harm to compel a finding of past persecution.”

Barrett’s expansive deference to immigration judge determinations is particularly troubling given massive disparities in asylum adjudications. For example, in 2017, asylum denial rates at the Chicago immigration court (which is under the jurisdiction of the Seventh Circuit) varied drastically between judges, from as low as 28.7 percent to as high as 95.6 percent.

Credibility determinations made by Barrett indicate a lack of understanding of how trauma impedes asylum seekers from remembering and explaining their persecution. In one notable case, Barrett affirmed a decision to deny asylum to Gerson Alvarenga-Flores, who had escaped a life-threatening attack by the brutal MS-13 gang, which exercises control over large swaths of El Salvador. The gang then tried to attack Alvarenga-Flores on a bus. Barrett agreed with the immigration judge’s finding that Alvarenga-Flores wasn’t credible due to minute inaccuracies or inconsistencies in his testimony. At issue, for example, was whether gang members had boarded the back or front of the bus to attack him. Barrett, it seems, fails to appreciate the widely accepted fact that survivors of trauma often have trouble recalling details and recounting incidents in a consistent manner, all the more so when they’re under aggressive cross-examination.

Also highly concerning is Barrett’s dissent in a Seventh Circuit decision enjoining the “public charge” rule, which would have expanded immigration officials’ discretion to deny permanent residence and citizenship to immigrants who have used public services (to which they are legally entitled). The majority concluded that the public charge rule violated the Administrative Procedures Act and penalized people with disabilities in violation of the Rehabilitation Act. But Barrett would have given the government broad discretion to keep immigrants from becoming permanent residents and citizens on the pretext of their income. She relied on an “originalist” interpretation of an outdated 19th century concept that even at the time was used to discriminate against immigrants based on their ethnicity and nationality.

Barrett’s track record as a federal judge demonstrates a disturbing willingness to disregard evidence presented by asylum seekers and a failure to understand the effect of trauma on their testimony. It also reveals a dangerously laissez-faire attitude and undue deference to the decisions of immigration judges hired under a highly politicized process. Nothing suggests that her judgment on the Supreme Court would be any better.