asylum process still highly arbitrary

Syracuse University's Transactional Records Access Clearinghouse (TRAC) has published a study of large persistent differences in asylum grant rates of judges in immigration courts across the country. The disparities hold when controlled for a number of factors, including nationality of the applicant.

In city after city and for national group after national group, newly available data from the Executive Office for Immigration Review (EOIR) document extensive hard-to-explain disparities in how the nation's immigration judges decide the thousands requests for asylum that come before them each year, according to an analysis by the Transactional Records Access Clearinghouse (TRAC).

The unusual persistence of these disparities — no matter how the asylum cases are examined — indicates that the identity of the judge who handles a particular matter often is more important than the underlying facts. Because equal justice under the law is a fundamental goal of American jurisprudence, the new findings about the day-to-day operations of the immigration courts are disturbing.

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This report . . . focuses on the work of 224 immigration judges, each of whom had decided 100 or more asylum matters from FY 2001 to 2006 where the applicants were represented by counsel.

Some courts are more problematic than others, with Miami being the worst.

New York. The variation among the decisions of New York's immigration judges is quite extreme. Of the 36 such judges, two denied asylum requests less than 10% of the time and another denied requests more than 90% of the time. See Figure 1.

Those with the largest proportion of denials included Judge William F. Jankun. He turned down 91.6% of the 665 requests that he considered. Then there was Judge Sandy K. Hom who declined 89.7% of 1,533 matters and Judge John Opaciuch who rejected 87.5% of 879 requests.

At the other end of the scale in New York were three judges who presumably had dealt with broadly similar kinds of applicants. Among them was Judge Terry A. Bain who only denied 9.5% of her 1,946 cases. Then there was Judge Margaret McManus who denied 9.9% of the 1,859 cases she heard. And William P. Vanwyke — with 1,181 cases — and a denial rate of 14.7%.

The use of the word "presumably" here needs a bit of explication. Since cases are assigned randomly, all the judges deal with broadly similar kinds of applicants.

Within each court, however, the Executive Office for Immigration Review has automated procedures to assign the incoming requests on a random basis. Therefore, the individual judges within a given district are thought to be dealing with the same broad mix of asylum seekers as their colleagues sitting in the same court. As a result — in each immigration court — the average grant and denial rate for the judges deciding asylum matters should be roughly similar.

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Miami. With 26 judges who had handled more than 100 cases, Miami was the second busiest in the nation in terms of asylum matters decided. In that city, Judge Sandra A. Coleman's denial rate was 21.8% while Judge Mahlon Hanson's rate was 97.6%. . . . Setting aside the two judges with the lowest denial rates, the remaining 24 Miami judges' asylum denial rates still varied between 63% and 98%.

A comparison to other immigration courts around the country shows that Miami’s denial rates are significantly higher than average. This wasn't because Miami had the most cases to handle--New York had 1240 asylum cases per judge to Miami's 1131 during the period studied.

Disparities remained regardless of such factors as hearing location, type of application (affirmative or defensive), and whether or not the applicant was in custody.

Large disparities exist in denial rates within nationalities, as well:

Nationally the judge-to-judge differences in asylum rates for Chinese applicants range from a denial rate of 7% up to a denial rate of 95%.

Some judges in New York and Miami denied 99% of Haitian applications for asylum. If you are Haitian and have the misfortune to have one of these judges assigned to your case, you might as well pack your bags and skip the proceedings, because they are sending you back regardless of the facts of your case.

The study concludes:

The wide range of disparities in how asylum matters are decided — regardless of the perspective from which they are examined – points strongly to a dysfunctional system where the law is not the law. As TRAC previously documented, these disparities have existed for many years and have outlived the tenure of any number of individual judges. This strongly suggests that when it comes to decision disparity, individual judges do not appear to be the primary source of the problem. An attempt to deal with this failure by focusing only on individual judges — even those judges whose asylum decisions fall at either extreme — will in the long run do little to guarantee a fairer and more effective system without wider systemic reforms.

That is exactly right.