For his April 27 hearing, Mohammad submitted photos of his injuries from the 2016 suicide bombing that killed hundreds at a peaceful demonstration of mostly Hazaras. He also gave the court threatening letters from the Taliban and medical documents from treatment for head wounds in 2021. He said militants beat him with sticks as he left the university and shot at him but missed.
In court, the government argued that Mohammad encouraged migration to the U.S. on social media, changed dates and details related to his history, and had relatives in Europe, South America and other places where he could have settled.
In ruling, Judge Allan John-Baptiste said the threats didn’t indicate Mohammad would still be at risk, and that his wife and children hadn’t been harmed since he left.
Mohammad tried to keep arguing his case, but the judge told him the evidentiary period was closed. He asked Mohammad whether he planned to appeal or would waive his right to do so.
Mohammad kept describing his claim, but John-Baptiste reminded him he’d already ruled. Mohammad said if the judge was going to ignore the humanitarian situation in Afghanistan, he wouldn’t ask for an appeal. John-Baptiste indicated he had considered it.
“You were not hit by the gunshot or the suicide bomber,” John-Baptiste said. “The harm that you received does not rise to the level of persecution.”
Mohammad continued, explaining how his family lives in hiding, his wife concealing her identity with a burqa.
“OK, are you going to appeal my decision or not?” John-Baptiste ultimately asked.
“No, I don’t,” Mohammad said.
“And we don’t want you to make the decision now that you can’t come back later and say you want to appeal. This is final, OK, sir?” John-Baptiste said.
“Yes. OK, I accept that,” Mohammad said.
He later asked whether he could try to come back legally. The judge started to explain voluntary departure, which would allow him to return in less than a decade, but corrected himself and said Mohammad didn’t qualify.
“I’m sorry about that, but, you know, I’m just going to have to order you removed,” John-Baptiste said. “I wish you the best of luck.”
Mohammad later told AP he couldn’t comprehend what was happening in court. He’d heard from others in detention that he had a month to appeal.
“I didn’t understand in that moment that the right would be taken from me if I said no,” he said.
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Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
Before Mohammad decided to flee, his wife applied for a special immigrant visa, which grants permanent residency to Afghans who worked for the U.S. government or military, along with their families.
But that and other legal pathways can take years. While they waited, Mohammad said, the Taliban came looking for him but instead detained and beat his nephew. Mohammad described making the devastating decision to leave his family, who had no passports.
He opted for a treacherous route through multiple countries to cross the U.S.-Mexico border, which has seen the number of Afghans jump from 300 to 5,000 in a year.
Mohammad said he crossed into Pakistan, flew to Brazil and headed north. He slept on buses and trekked through Panama’s notorious Darien Gap jungle, where he said he saw bodies of migrants who didn’t make it.
Mohammad planned to live with a niece in North Carolina. Now he fears if he’s sent home and his wife gets her visa, they’ll be separated again.
Deportations to Afghanistan are extremely rare, with a handful each year.
Attorney Iman said they’re grateful Mohammad’s case has been reopened, with a hearing scheduled for Oct. 4. She is fighting for his immediate release.
“I have no doubt that his case would have turned out differently had he been represented,” Iman said. “This is exactly the type of vulnerable individual that the U.S. government has promised, has committed to protect, since it withdrew from the country.”
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Associated Press reporter Elliot Spagat contributed from San Diego.
