“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Trump Judge Ralph Erickson of the Eighth Circuit was the author and deciding vote in a 2-1 decision in December 2018 that misread the law and made a lawful permanent resident subject to deportation. An Immigration Judge (IJ) had ruled in Pedro Camacho’s favor, but was reversed by the Board of Immigration Appeals (BIA), which then refused to reconsider its decision. Erickson wrote an opinion upholding the BIA’s refusal. Judge Jane Kelly explained in her dissent that the BIA violated established rules making clear that it should not have reached its own “unsupported” factual conclusions and should have sent the case back to the IJ.

Pedro Camacho came to the U.S. in 1987 and became a legal permanent resident in 2000. After he was judged “removable” in 2015 as a result of several criminal convictions, he sought to adjust his status. At a hearing before an IJ, he explained that although he was innocent of charges of indecent contact with a minor, he had pled guilty in order to avoid the possibility of a “lengthy mandatory minimum sentence.” Members of his community “testified to his good character,” and he testified that the charges resulted from his ex-wife’s attempt to “frame him.” Although taking account of the conviction, the IJ decided that the record made it “dubious” that Camacho had committed the misconduct and granted his request for relief.

Immigration authorities then appealed to the BIA, which reversed the judgment and denied Camacho’s later request to reconsider. One of his key arguments was that the BIA had improperly found as a fact that one of his alleged victims “attempted suicide following” the offense. Federal rules specifically provide that factual findings in such cases should be made by the IJ based on actual testimony, not the BIA based on arguments by attorneys.

In Camacho v. Whitaker, Judge Erickson wrote a 2-1 decision upholding the BIA and rejecting Camacho’s request for reconsideration. The majority claimed that the BIA did not make its own factual finding with respect to the suicide issue, but that the IJ explicitly stated that he gave some consideration to the conviction “because of testimony regarding an alleged suicide attempt.”

Judge Kelly strongly disagreed. Relying on a careful review of the record of the hearing before the IJ, she explained that the IJ had “said nothing about whether the suicide attempt allegation factored into its analysis” of the conviction and that, although one witness had referred to such an attempt, the IJ “made no factual finding at all about the alleged suicide attempt.” Under these circumstances, Kelly pointed out, it was clear that the BIA was relying on its own factual finding that such an attempt had occurred, and that this “unsupported” finding clearly “violat[ed]” federal rules. The case should have been sent back to the IJ for additional fact finding, she explained, rather than making Camacho immediately deportable despite the IJ’s decision and Camacho’s “long ties to his community and family.”