After nearly two years in immigrant detention facilities, longtime U.S. resident Joseph Thompson – who is suffering from a deadly medical condition – thought he was about to be set free when the Board of Immigration Appeals (BIA) issued a ruling in his favor.
But then, in a rarely used maneuver, U.S. Attorney General William Barr exercised his authority over the immigration court system to certify the case to himself – essentially giving him the power to not only reverse the BIA’s ruling in Thompson’s case but also to alter the course of perhaps thousands of other cases.
On Oct. 25, Barr ruled against Thompson and used the opportunity to establish a new immigration court precedent that will make it harder for many others to fight the removal process.
Now, Thompson – a green card holder who has lived in the United States since 1985 – is once again fighting for his freedom.
He’s also fighting for his life.
At 49, Thompson suffers from an aortic aneurysm that, if it gets bigger, could burst and lead to internal bleeding that would likely kill him.
He needs open-heart surgery to save his life.
But Immigration and Customs Enforcement (ICE) – the agency keeping Thompson locked up – continues to deny him the treatment while in custody.
“Sometimes my heart skips,” Thompson said. “It’s kind of like a bulging tire. I could be walking, and then boom. But [ICE] told me they’d rather me be deported than get the surgery. They don’t care about us one bit. Not if we’re sick, if we have a broken leg or an eye patch. So long as they can deport you, they don’t care. Now I’m just waiting to die. It’s like I’m on Death Row.”
Barr steps in
Thompson is among the many immigrants who live in the United States legally but have been swept up in President Trump’s dragnet because they have prior criminal convictions on their record. In many cases, those convictions involve relatively minor crimes.
In 2012, Thompson was convicted of a misdemeanor battery charge. Later, in January 2018, he was arrested for public intoxication and was taken to a county jail in Dalton, Georgia, where he learned that because of his prior conviction, ICE had issued a “detainer” – akin to an arrest warrant – for him. ICE issues such detainers for immigrants the agency believes can be deported.
Thompson was delivered into ICE custody and sent immediately to Irwin County Detention Center in Ocilla, Georgia.
But Thompson’s criminal sentence had been modified six years after his conviction. In previous administrations, this might have allowed him to be released. An immigration judge, however, chose to ignore that factor and ordered Thompson removed from the United States.
He then appealed the ruling to the BIA and won. But when the BIA sent the case back to the immigration judge for a final decision, Barr stepped in and certified Thompson’s case to himself to decide if immigration courts must honor sentence modifications like Thompson’s.
Barr reversed the BIA’s decision and agreed with the immigration judge’s decision to deny Thompson’s application for cancellation of removal. In the ruling, he wrote that state court orders that modify the sentence or term of imprisonment imposed in a criminal case will have legal effect for immigration purposes only if they are based on a procedural or substantive defect in the original criminal proceeding – and not if they are based on reasons unrelated to the merits, such as rehabilitation or immigration hardship.
“This decision was not compelled by immigration law,” said Peter Isbister, senior lead attorney with the SPLC’s Southeast Immigrant Freedom Initiative (SIFI). “It furthers this administration’s project of criminalizing immigrants and ‘tightening the screws’ against non-citizens in any way possible. It is notable that Trump’s attorney generals have never intervened to rule in favor an immigrant. Rather, every time a Trump attorney general has certified a case to himself, he has ruled in favor of DHS enforcement.”
‘It’s a merry-go-round’
In the past, attorney generals certified cases to themselves sparingly. It was done only three times during the Clinton administration and only four times during the Obama administration. But under the Trump administration, former Attorney General Jeff Sessions self-certified at least seven cases from immigration courts during the mere 21 months he held office, exerting “unprecedented” control over immigration courts.
As the highest administrative body for applying immigration law, the decisions of the Board of Immigration Appeals are final unless overruled or modified by either the attorney general or a federal court. When the attorney general, who has direct authority over the immigration courts, certifies a case to himself, he essentially becomes prosecutor and judge, a practice that has drawn scrutiny from the American Bar Association.
Barr’s decision in Thompson’s case has the potential to control the fate and uproot the lives of thousands of immigrants.
“Thompson built his life here and fought for the chance to remain here, in the only country he has ever known,” said Jonathan Polonsky, an attorney with Kilpatrick Townsend & Stockton LLP, co-counsel to the SPLC in Thompson’s case. “This decision can affect thousands of people who have lived, worked and have families here but who can be barred from immigration relief.”
In the meantime, Thompson remains detained at Folkston ICE Processing Center in Folkston, Georgia.
But before being detained, he was thriving. He worked two jobs as a chef in Georgia and would often feed the homeless with meals he cooked or donate food to the fire department. On the weekends, Thompson mowed the lawns of his elderly neighbors.
At Folkston, however, Thompson lives in debilitating pain that has led him down a long road of depression. ICE only provides three nitroglycerin tablets a day for his aneurysm, which Thompson said is like “giving him a Band-Aid.” By February 2019, he had been hospitalized more than 10 times, sometimes for up to two weeks. Each time he goes to the hospital, he is chained around the waist and shackled at the hands and feet.
Thompson also said that in addition to the water being “filthy,” he is rarely given food at proper times to take his medicine. Moreover, the panic button in his dorm room doesn’t work, and the room is muggy due to lack of proper air conditioning, making it hard for him to breathe.
But the cruelties don’t stop there.
“I have to put ice in the microwave, so I can melt it down just to have something to drink,” he said. “There’s no bottled water, and the food is horrible. I go days without toilet paper, [the guards] keep the lights on all the time, and it’s freezing in the winter, so you can’t sleep. We’re not allowed an extra blanket to keep us warm.”
Thompson also said he has to witness further injustices toward those detained with him – people he called “innocent.”
“There are people here who are genuinely seeking asylum,” he said. “But they are deported. The country doesn’t care that people are here fighting for their lives. Jaywalkers, people who have overstayed a visa, people who’ve done nothing wrong.”
Once, ICE moved Thompson to a North Carolina county jail. When he arrived, he was scared to eat the food. Because he refused to eat, Thompson said that while handcuffed, a Department of Homeland Security (DHS) officer used a stun gun on his neck, his behind and his back – a total of six times – before he was punched in the legs, arms and neck. Jail staff then sent him to solitary confinement, where he had to sleep on the floor for six days.
‘Weaponizing the system’
Although attorney generals have always been able to set immigration precedents, they’ve just recently began using that power.
Isbister was not altogether surprised by Barr’s decision.
“Under the Trump administration, the attorney generals’ practice of self-certification has spiked considerably as a way to weaponize the system,” Isbister said. “In every single decision in cases like this, the attorney generals have ruled against the immigrant.”
Meanwhile, Thompson has no one to go back to in Jamaica. The women who raised him have passed away. They include his mother, who was murdered in the United States. He never knew his father. His two sons live in this country.
“[ICE] would rather I die than fix my heart condition and let me go,” he said. “I don’t want this to be the last place I’m in, wearing this uniform and fighting for my life. It’s like they’ve already put me in a box, ready to bury me. If ICE doesn’t want to do the right thing, then they have to answer to God. I don’t know how they sleep at night. They’re letting people – and not just me – die.”
Thompson will reopen his case at the BIA, even under Barr’s new rule. But if the BIA rules that the attorney general is correct, Thompson will appeal the decision to the 11th U.S. Circuit Court of Appeals, where the SPLC and Kilpatrick Townsend & Stockton LLP will continue to advocate for Thompson as strongly as possible.
“We are not done litigating this case,” Isbister said. “Not by a long shot.”
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