The New York Times has an important article on the subject in yesterday's paper: Big Disparities in Judging of Asylum Cases. The article dissects a new study being published in the Stanford Law Review, "Refugee Roulette: Disparities in Asylum Adjudication". The abstract for this study reads, in part:
This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country....As the NYT article puts it, graphically:
The cross tabulations show that the chance of winning asylum was strongly affected by whether or not the applicant had legal representation, by the gender of the immigration judge, and by the immigration judge's work experience prior to appointment.
In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.
But I think the statistic that will interest many readers is one the Times placed in the final sentence of the article.
Immigration judges are appointed by the attorney general, and 49 of 226 current judges were appointed during the tenure of Mr. Gonzales. [emphasis mine]
So, over 20% of the new immigration judges were appointed by Bush-Gonzales's Justice Department. (I don't know how many were appointed during the reign of John Ashcroft.) This is important for two reasons. One, procedural changes in asylum adjudication have given more weight to immigration judges' initial decisions because the Board of Immigration Appeals (BIA) has been eviscerated, with Ashcroft cutting the number of BIA board members from 23 to 11 back in 2002. The result was a “'sudden and lasting decline' in appeals that were favorable to asylum seekers".
But the shadow of the ongoing U.S. attorneys firing scandal hangs over the asylum-immigration issue as well.
The immigration courts have been in the spotlight after Justice Department officials said last week that the investigation of Monica M. Goodling, a former aide to Attorney General Alberto R. Gonzales, has been expanded to include her role in helping to appoint immigration judges.
Ms. Goodling testified last week that she had “crossed the line” in applying political considerations to candidates for nonpartisan legal jobs. (emphasis mine)
So we see that political cronyism and litmus tests for civil service employees -- like the immigration court justices -- are attempts to foist a one-party system upon the state bureaucracy. The result, as the Stanford Law Review study suggests, is an immigration court system that is riddled with injustice and unfairness.
This study was nothing new to those of us who have followed the vagaries of the immigration courts adjudication of asylum law. (And remember, asylum refugees are those fleeing their countries because of persecution, torture, rape, political oppression, ethnic cleansing and genocide, etc.)
Meanwhile, Seven Long Years Ago
In October 2000, the San Jose Mercury News published a study, which was a
...statistical analysis of the decisions of each Immigration Judge in the U.S. comparing their grant rates on requests for asylum. Using the Freedom of Information Act, they obtained a 1,134-page printout of a table from the Justice Department. DMR Associates of Springfield, Virginia analyzed the data.The former INS attorney who prints the raw results (see link directly above) cautions against reading too much into the data, but over at VisaLaw, they report the conclusions of the SJ Mercury News analysis.
The study... reveals what many instinctively knew about the asylum process – that whether a person is granted asylum depends less on the merits of the person’s case and more on the judge before whom they present their case. The paper examined 176,465 cases that came before the 219 Immigration Judges between 1995 and 1999.
Some judges granted asylum in half of the cases they heard, while other judges granted asylum in less than two percent of cases. Some judges even routinely deny asylum to applicants from countries such as Bosnia and Somalia, where conditions mean that most applicants are granted asylum....
According to the Mercury News analysis, there was one factor that was key in determining how an Immigration Judge would rule according their legal background. Judges who worked in the private sector before being appointed granted asylum at a 50 percent higher rate than judges who had previously worked for the government. There are twice as many former government lawyers working as Immigration Judges as former private sector attorneys.
Another important factor was the gender of the judge. Ten of the 24 judges most likely to grant asylum were women, while the six judges least likely to grant asylum were men. Only three of the 24 judges least likely to grant asylum were women. The overwhelming majority of Immigration Judges – 72 percent – are men.
You'd think the New York Times would have provided the perspective on the new study from the Mercury News article from seven years ago. Of course, if they did, it would show that little has changed since the sunset months of the Clinton Administration, despite the best efforts of Bush, Ashcroft, and Gonzales/Goodling. The most obvious change has been the near-destruction of the appeals process.
Immigration has been the issue most beloved of demagogues, appealing as it does to nativism, fears of unemployment and jingoistic campaigns for buying only domestic products ("put the foreign workers out of work!"). The Democratic Party, backed by the parochial and conservative trade union bureaucracy, has often bought into the protectionist scam, which pits U.S. workers against their brothers and sisters around the world. And the worst victims have been, of course, the most powerless -- the men, women, and children fleeing for their lives to the U.S., asking for political asylum. As the studies reported above show, the United States has long since ceased standing for justice and fairness.
We must demand that political litmus tests for immigration judges be stopped, and their proponents fined and jailed. Attorney General Gonzales should be impeached, for this and other crimes, e.g., legalizing torture. And the Immigration Appeals Board must be reconstituted and strengthened, and judges in the immigration courts (now run by the Department of Homeland Security) monitored and held accountable for discriminatory practices.