While asylum decisions should always be fair and impartial, this is not always the case given the wide discretion immigration judges are given in deciding such cases, the lack of precedential decisions, and the fact that many of the immigration judges have come from the enforcement arm of the immigration service and all are hired by the Attorney General of the United States. These factors necessarily place the institutional role of immigration judges in conflict with expectations of fairness and impartiality in deciding asylum cases.
Those who are new to immigration court practice and unacquainted with the workings of immigration court often fail to understand why the immigration courts function so differently than our Article III, Article 1, and our state courts. In order for a wider world to understand how the immigration courts function it is important to reveal and discuss some of the recent problems in our United States immigration courts.
During the last decade, our immigration courts have wrestled with disparate asylum outcomes, both among the various immigration courts, and within the same immigration courts; an immigration judge hiring scandal between 2004 and 2006 that left many immigration positions vacant; the implementation of a 22-point Plan to improve the functioning of the immigration court; the backlog of the immigration caseload beginning in 2005; and the perpetual need to standardize immigration court rules and procedures.
Disparate Asylum Outcomes
Immigration practitioners such as myself often believed that asylum seekers were not receiving proper justice because of the disparities in grants of asylum at the trial level in the various immigration courts. Moreover, there were often disparities in outcomes within the same immigration courts. Professors Ramji-Nogales, Schoenholtz, and Schrag of Georgetown Law School in their Asylum Study have described the differing outcomes in asylum decisions as “Refugee Roulette.”
The study is a monumental piece of work that has been cited by scholars and others interested in refugee law. The Asylum Study examined asylum outcomes in Immigration Courts from 2000 through 2004 for asylum seekers from what they consider Asylum Producing Countries (APC’s). They discovered that even for asylum seekers from countries that produce a relatively high percentage of successful asylees, there are serious disparities among immigration courts in the rates at which they grant asylum to nationals of five of those countries: Albania, China, Ethiopia, Liberia and Russia.
The drafters of the Asylum Study opine that the explanation for the differences between the courts could be “simply cultural” – some courts are more likely to grant asylum while others may be especially tough on all asylum seekers. Also, differences from one region may be due to differences in the populations of asylum seekers in different geographic locations. These explanations may be true, but the question remains: is true justice being properly served with respect to asylum seekers or are they being subjected to “Refugee Roulette?”
Possible Causes of Disparities Among Immigration Judges
Judging can be difficult in any forum. It is especially difficult with respect to asylum claims because the required persecution must have taken place in a foreign country and may have occurred a great while ago with few witnesses and little documentation. Furthermore, immigration judges are required to make credibility determinations in each case and the applicants’ credibility may be suspect.
Statistics reveal that the five largest immigration courts had immigration judges who were consistent outliers when it came to asylum decisions. From one-third to three-quarters of the judges on these courts granted asylum in APC cases at rates more than 50 percent greater or more than 50 percent less than the national average. The authors of the Asylum Study arrived at the conclusion that discrepancies in the grant rates between judges in the same court may be because of different geographic populations of asylum seekers in different regions. It may also be that certain asylum seekers may come from certain ethnic groups that have similarly viable asylum claims.
The Asylum Study revealed that the single most important factor affecting the outcome of an asylum seeker’s case was whether the applicant was represented by counsel. Represented asylum seekers were granted asylum at a rate of 45.6%, almost three times as high as the 16.3% grant rate for those without legal counsel. The number of dependents that an asylum seeker brought with her to the U.S. played a large role in increasing the chance of an asylum grant. Their analysis found that an asylum seeker with no dependents has a 42.3% grant rate, having one dependent increases the grant rate to 48.2%. It could be that asylum seekers who bring children in addition to a spouse appear more credible or some immigration judges may be more sympathetic to asylum seekers who have a family to protect.
The Asylum Study also found that gender of the judge had a significant impact on the likelihood that asylum would be granted. Female immigration judges granted asylum at a rate of 53.8%, while male judges granted asylum at a rate of 37.3%. The statistical calculations show eb5 projects that an asylum seeker whose case is assigned to a female judge had a 44 percent better chance of prevailing than if there is a case assigned to a male judge. This may be significant in that there are far fewer female immigration judges than male judges. Only approximately 35 percent of the 263 immigration judges are women.