Sunday, August 24, 2008

Poisoning the Asylum Well

Charlie Savage has an article in today's New York Times focusing on the politicization of the civil service process that selects the nation's immigration judges. The use of a political litmus test for the conservatism of Department of Justice applicants surfaced last summer in
... two scathing reports confirming that for several years administration officials illegally took political affiliation into account when hiring recent law school graduates, summer associates, some assistant prosecutors and immigration judges.
The culprits in this twisted, and illegal, vetting process were the assistant to the Attorney General, Kyle Sampson, and two former White House flunkies, Monica Goodling and Jan Williams. The story about the disparities in adjudication of asylum cases surfaced in a Stanford Law Review report last Spring (which I covered at the time.)

The latest revelations from the DoJ reviews amplify the conclusions re the bias and unfairness of the nation's immigration courts, as revealed in the Stanford study earlier this year.

According to Savage:
When vetting applicants... Ms. Goodling asked them questions about their political beliefs and researched their campaign contributions. She also conducted Internet searches of their names and words like “asylum,” “immigrant” and “border,” as well as partisan terms, like abortion, Iraq, gay and the names of political figures, to determine their views, the report said.
No evidence of a deliberate attempt to limit asylum claims has surfaced. But a statistical analysis of the results of the new Bush appointees asylum decisions found a significant discrepancy between the judgments of the "vetted" Bush Administration post-2004 appointees and the rest of the immigration judges or hearing examiners in the system. (The statistics were not gathered by DoJ, but by Transactional Records Access Clearinghouse at Syracuse University.)
Of the 31 politically selected judges, 16 compiled enough of a record to allow statistical analysis. Nine rejected applicants at a significantly higher rate than other local colleagues, while three were more lenient....

And when asylum denial rates of all judges across the nation were ranked in comparison to their local peers, 8 of the 16 scored above the 70th percentile — meaning they have been among the judges least likely to grant asylum.

Together, these 16 judges handled 5,031 cases and had a combined denial rate of 66.3 percent — 6.6 percentage points greater than their collective peers. This translates into an extra 157 asylum cases that resulted in denial. [Emphasis added]
What happens when an asylum case is rejected? Some are appealed, of which a small percentage are referred back to the original court for retrial. But a majority of individuals are deported back to their countries, which they originally left because of political or national persecution, often because they were imprisoned, tortured or threatened with death.

How many of these 157 extra denials resulted in torture or death of the individuals involved? We cannot know, but given the state of world governance and the prevalence of torture in many countries, the answer must be that the result of some this political vetting has been imprisonment, renewed torture, or hideous death.

The NYT article notes that unfairness is rife throughout the asylum-immigration system, and different standards and approval rates by judges throughout the system is a scandal still left unaddressed.

Asylum seekers are an easy target for right-wing politicians, and other opportunistic politicos, both Democratic and Republican, who seek to scapegoat these defenseless victims for the difficulties and pressures of the immigration problems in the U.S. as a whole. Americans don't realize how difficult it is to get asylum in the United States. Grant rates for male applicants are only 37.3%, and are often made only after voluminous perusal of mountains of evidence, usually involving hundreds of pages of evidence, submitted by the applicant (who is often severely stressed, if not depressed, or suffering from PTSD from torture or war-related conflict).

Congress must address reform of the asylum immigration system as a matter of basic human rights. Systemic effects of the unfair system are also burdening the federal judicial system as a whole, as appeals courts are flooded by applicants, denied a fair hearing, or victimized by judicial rulings that are unprofessional, biased, or inept. As one reporter described it:
Federal judges have been among the harshest critics of immigration judges. For example, last year the Seventh Circuit Court of Appeals delivered another in a series of stinging rebukes to the immigration courts and Board of Immigration Appeals (BIA). It ordered a review of a case of a Lebanese who was denied asylum despite fear that he would be persecuted if forced to return to his home country. The Appeals Court called for the DOJ to allocate more resources to ensure that immigrants receive fair review of their cases.
Responsible plans for basic reform are on the record. But only when the public at large begins to make itself heard on this issue will politicians finally discover the "will" to make change happen.

Last June, I wrote:
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.... 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.

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