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 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.
The EOIR Hiring Scandal
In the early 2000’s the case-loads of the country’s immigration courts was rising while the number of immigration judges was simultaneously declining. The Executive Office for Immigration Review (EOIR), a branch of the U. S Justice Department which oversees the immigration courts, asked Congress for additional funding to hire more immigration judges. However, the reputation of the EOIR was tarnished by the discovery of an illegal political hiring scandal that took place from the spring of 2004 until December 2006. I will write more on the hiring scandal in a later article.
The Attorney General’s 2006 Plan for Reform
In the wake of the hiring scandal and criticism from several federal circuit court rulings that sharply criticized the immigration courts, former Attorney General Alberto Gonzalez issued a 22- Point Plan for improving the operation of the immigration courts. It is not the objective of this article to delve deeply into the implementation of all of the entire reform effort, but I will briefly examine some of the positive changes that have emerged from its implementation.
On June 5, 2009, the EOIR produced a fact Sheet detailing measures to improve the EOIR. According to the 2009 Fact Sheet, fifteen of the twenty-two proposed reforms had been enacted. These included: obtaining funding to hire additional immigration judges and field supervisors for immigration courts; drafting an immigration examination for all new judges; installing digital recording services in most, but not all, the immigration court rooms; and producing an online practice manual for the immigration court. The reforms also included training for new judges and additional training for current judges. As of July 2012 no sanctions had been granted to the immigration judges or the judges of the Board of Immigration Appeals (BIA) to hold attorneys or parties in contempt.
The training plans consisted of expanded training for new immigration judges on legal and procedural issues; a mentoring program for new judges; and periodic training on management. For the first time there was a joint legal conference in 2009 for immigration judges and BIA members. A Code of Conduct for Immigration Judges had been implemented in 2011 under the Obama Administration as well as the completion of installation of digital audio recording systems in all of the immigration courtrooms.
There is statistical evidence that the reforms have helped. The central finding of a 2009 report on the subject contends that judge-by-judge asylum disparities in the Immigration Courts are down. Court data shows that disparity rates have declined in ten of fifteen immigration courts that decide the bulk of all asylum matters. In New york the disparity rate among judges in Asylum cases has dropped by a quarter and in Miami the range among judges in their denial rates dropped almost two thirds from their previous levels. This indicates that justice is being better served for asylum seekers in these busy immigration courts.
If disparity rates have declined in ten of the fifteen immigration courts that hear the bulk of asylum claims this is real progress toward a fairer and more impartial system. Training for new immigration judges and the judicial mentoring programs have helped many new judges take their cases more seriously. However, this drop in disparity rates may well also be caused by better lawyering in those ten courts where there has been a drop in disparity rates. We know that an applicant has a better chance of succeeding if represented by counsel and so the implementation of the reforms of the 22-point plan may not necessarily be totally responsible for the drop in asylum disparity rates.
The Immigration Court Backlog
Our immigration courts are backlogged, which denies swift justice for asylum seekers. There has been a backlog of approximately 300, 000 cases awaiting adjudication. The growing immigration court backlog is not a recent problem, but has been steadily growing since at least 2005. One important cause for this problem was the Bush Administration’s failure to fill vacant and newly-funded immigration judge positions during the period of the political hiring scandal. Government filings seeking deportation orders increased between Fiscal Year (FY) 2001 and (FY) 2008 by thirty percent while the number of immigration judges on the bench saw little increase and for some periods fell. Subsequent hiring to fill these vacancies during the Obama Administration has not been sufficient to handle all the cases that wait attention.
Although there is still a backlog in the immigration courts, the Obama administration instituted two initiatives to help clear the backlog. During the first quarter of 2012, immigration courts issued 2, 429 fewer deportation orders than in the fourth quarter of 2011. Thus, the proportion of cases resulting in an order of deportation fell slightly to 64. 1 percent. In over a third of all cases, the individual was allowed to stay, at least temporarily, in the U. S.
This historic drop in deportations began in August of 2011 when the Obama Administration initiated a review of its 300, 000 court case backlog. The stated goal of the Immigration and Customs Enforcement (ICE) review was to better prioritize and reduce the backup of pending matters that led to lengthy delays in immigration court proceedings of noncitizens it wanted to deport. To achieve this longer term objective, ICE attorneys assisted by court clerks, law clerks and paralegals had been redirected in a dramatic effort – part of this prosecution discretion (PD) initiative – to review all 300, 000 cases to prioritize which to focus upon. A consequent drop in overall case dispositions occurred while these reviews were being carried out. As a result, overall court dispositions during the first quarter of 2012 fell to 50, 489 – the lowest level since 2002.
Another Obama administration initiative has resulted in fewer deportations. On June 15, 2012, the President announced a policy to grant young undocumented noncitizens a chance to work and study in the U. S. without fear of deportation. Under the new policy, ICE would stop attempting to deport these undocumented noncitizens who are under 30 years old, came to the U. S. as children and are otherwise law abiding. It has been estimated that as many as 800, 000 such undocumented residents now in the U. S. could qualify for this new status.
Need for Standardizing Immigration Court Rules
The final problem this article will explore is the need for standardized rules and procedures for the immigration courts. As of the time of writing, there are now 59 immigration courts spread across 27 states of the U. S., Puerto Rico, and in the North Mariana Islands with a total of 263 sitting immigration judges. However, there are no set or standardized rules of procedure for the immigration courts.
One scholar has commented on the 22-Point Plan for improvement of the immigration courts contending, “the proposed reforms, while greatly needed, fall short because they fail to include one of the basic tenants of our American court system – rules. It is hard to play by them, invoke them, or enforce them if there are none. ” Some basic immigration court procedures are set forth in the Immigration and Nationality Act (INA) and the Code of Federal Regulations (CFR). Yet, in everyday practice in different immigration courts one will find locally accepted, but unpublished, procedures that are inconsistent with respect to when exhibits must be filed, marking exhibits, and how much hearsay will be allowed at an asylum hearing. Each immigration court seems to have its own set of entrenched customary practices.
Our immigration courts are busy tribunals wherein appointed immigration judges must decide in many cases who should be granted asylum and who should be denied. It should be a system that strives to be fair and impartial in its decision making concerning those fleeing persecution. More often than not the immigration courts do not appear to be fair and impartial in their decisions.
In examining recent statistics on asylum, it is heartening to find that asylum case filings are down. However, grants of asylum are higher than they have been in the last twenty-five years. This is a wonderful trend. Nevertheless, over the years there have been disparities in grants of asylum among various immigration courts, as well as disparities in such decisions between judges on the same court. The Asylum Study findings that i have cited in this article serve to reinforce and give statistical support to what I and other immigration court practitioners have often believed: while an ideal court system should be fair and impartial, more often than not, a request for asylum by a noncitizen becomes a game of “Refugee Roulette” in our current immigration court system.
Sadly, this means the outcome of the case might depend more upon arbitrary factors such as the judge to whom the case is assigned, whether one has counsel, and the ethnic and gender identity of the judge, instead of the facts of the particular claim.