luck of the draw

A new study was released recently extensively analyzing decisions by asylum judges across the country. The NY Times reports:

The study, by three law professors, analyzes 140,000 decisions by immigration judges, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia. The professors compared for the first time the results of immigration court cases over more than four years, finding vast differences in the handling of claims with generally comparable factual circumstances.

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.

. . .

The study found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.

. . .

The wide discretion exercised by immigration judges can be disheartening to lawyers and disastrous for immigrants facing threats to their lives if they are forced to return home, immigration lawyers said.

“Oftentimes, it’s just the luck of the draw,” said Cheryl Little, a lawyer and executive director of the Florida Immigrant Advocacy Center, a legal assistance group in Miami that represents many asylum seekers. “It’s heartbreaking,” Ms. Little said. “How do you explain to people asking for refuge that even in the United States of America we can’t assure them they will receive due process and justice?”

I had to stop for a moment to laugh at this. You mean even in This Great Land of Ours, even in this beacon of hope to the oppressed of the world, this Shining City, Sweet Land o’ Liberty, thru’ the night with the light from above—even here, we can’t assure noncitizens that they will receive the same due process rights and reasonable expectations of a just outcome that each American enjoys? Obviously, Ms. Little, being an experienced practitioner of immigration law, knows that immigrants have limited due process rights—no right to a trial in some circumstances (such as overstaying a visa waiver or returning to the U.S. after being deported), limited right to appeal, and little recourse to the courts to challenge bureaucratic inaction or incompetence. And justice, well, there’s only so much you can expect from a neglected bureaucracy slowly stifling under its own weight like a 900 pound man. (I include the immigration courts in the term “bureaucracy” because they are not part of the judicial branch, but part of the Department of Justice). But Ms. Little is appealing to our better instincts, to the part of most Americans that believes with a fervor usually reserved for Friday night lights and Sunday sermons that America alone really knows how to dispense True Justice.

According to the study, great differences also prevail among judges sitting on the same court and hearing similar asylum cases. In the Miami immigration court, one judge granted 3 percent of the asylum cases, while another granted 75 percent.

In short, immigration judges have significant leeway to bend law and facts to fit whatever outcome they have already decided, and rarely have to justify their reasoning to an increasingly overstretched appeals system.

In 2002 Attorney General John Ashcroft made changes to streamline the work of the appeals board, reducing the number of board members to 11 from 23 and encouraging more decisions by single members and without explanation.

What he did was purge the BIA of its liberal members, making the Board both less able to hear each case properly and less likely to grant an appeal in the cases it does hear.

This was no mistake, it was a conscious decision to make an already teetering system even more dysfunctional.

The politicization of the immigration judicial system is nothing new—it was one of the first things the Bush administration turned its attention to in the first term. And the results were predictable.

Asylum applicants who were represented by lawyers received favorable appeals decisions from the board in 43 percent of cases in 2001, the year before the changes took effect. By 2005, asylum seekers with lawyers won their appeals in 13 percent of cases.

The immigration courts are a shambles. The BIA should be restored to its previous size or expanded so the federal Courts of Appeals don’t have to pick up the slack and devote all their time to resolving individual immigration appeals that would be straightened out routinely and with much less expense under a well-functioning system. The Courts of Appeals sometimes step in when due process violations are especially egregious or immigration judges particularly incompetent, but there is only so much they can do. Litigation is also the only option for many immigrants in the absence of regulations which USCIS has failed to implement, in some cases for several years.

The system is broken, and this government isn’t capable of fixing it.