Partisan Loyalties Hamper Reform of Immigration Asylum System

By William Fisher

More fuel may soon get thrown on the current fire over the credibility and competence of Attorney General Alberto Gonzales.

The reason is the recent disclosures that many DOJ-appointed judges charged with deciding whether to grant immigrants' requests for asylum in the United States, or deport them to countries where they could face harsh and inhumane persecution, are frequently chosen on the basis of party political affiliation, have little or no experience in immigration law, and lack nationally-uniform rules for decision-making.

Some of the results of what some critics are calling "cowboy justice" are jaw-dropping disparities in outcomes. For example, one judge is 1820% more likely to grant an asylum than another judge in the same courthouse, one US Court of Appeals is 1148% more likely to rule in favor of an asylum-seeker than another US Court of Appeals, and the fate of asylum-seekers is often decided not by the facts of the case but rather by a clerk's random assignment of an applicant to one asylum officer rather than another, or one immigration judge rather than another.

Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of US Courts of Appeals render about 77,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country.

The nation's 215 Immigration Judges are required to cope with filings of over 300,000 cases a year. With only 215 Judges, a single Judge has to dispose of 1,400 cases a year or nearly twenty-seven cases a week, or more than five each business day, simply to stay abreast of his docket.

A recent study published in the Stanford University Law Review concludes that "in the world of asylum adjudication, there is remarkable variation in decision-making from one official to the next, from one office to the next, from one region to the next, from one judicial circuit to the next, and from one year to the next, even during periods when there has been no intervening change in the law."

The study adds, "When an asylum seeker stands before an official or court who will decide whether she will be deported or can remain in the United States, the result may be determined as much or more by who that official is, or where the court is located, as it is by the facts and law of the case. The arguably arbitrary factors of place and time are particularly discomfiting in asylum cases, because the result of an erroneous decision that is unfavorable to the bona fide applicant is an order of deportation to a nation where she is in grave danger."

The study is entitled "Refugee Roulette:Disparities in Asylum Adjudication." Its authors are Jaya Ramji-Nogales of Temple Univeristy Law School, and Andrew I. Schoenholtz and Philip G. Scgrag, both of Georgetown Univeristy Law Center.

The study's authors found troubling trends at each stage of the asylum-seeking process. For example, when a negative decision of an immigration judge or the Board of Immigration Appeals (BIA) is taken to its last practical stop -- a Federal Court of Appeals -- factors unrelated to the merits of cases "significantly affect an appellant's chance of obtaining a remand."

These factors, the study found, include, at the Board of Immigration Appeals, a Republican Attorney General's 2002 decision to purge the Board of many members selected by his Democratic predecessor, and to require cursory opinions, at best, rather than careful analyses of appellants' contentions. At the Court of Appeals level, the most obvious extraneous factor affecting the outcomes of cases is the region of the country in which the asylum applicant happened to settle before filing his or her application."

The researchers found that "officers who adjudicate asylum applications in some of the eight regional offices of the Department of Homeland Security's Asylum Office appear to have grant rates that reflect personal outlooks rather than an office consensus. Over the course of a seven-year period, more than 20% of the asylum officers in three of these regional offices had grant rates for applicants from asylee-producing countries that deviated from the regional norm by more than 50%. In only three offices did fewer than 10% of the asylum officers have grant rates that deviated from the regional norm by more than 50%. In one office, there was so little consensus that most of the officers deviated from the office norm by more than 50%."

A large majority of asylum-seekers is not represented by lawyers. Unrepresented asylum applicants in immigration court win at a rate of 16% while represented applicants win at a rate of 46%. Many applicants have difficulty understanding English, and translators are either non-existent or of poor quality. If a case reaches a US Court of Appeals, the judge on that court is forced to make a decision on the basis of ordinarily cursory and incomplete notes rather than verbatim transcripts of lower court proceedings. The DOJ does not require transcripts and does not provide resources for their preparation.

The study also found that female asylum-seekers are more likely to win their appeal than males.

The study confirms many of the findings of an analysis carried out by The Washington Post, which found that politicization of the asylum-seeking process is as rampant among DOJ-appointed immigration officials as it has been shown to be among US Attorneys.

The Post found that "At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law...."

The newspaper added, "These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney."

The Post analysis -- the first systematic examination of appointees to immigration courts, the relationships that led to their selection, and the experience they brought to their position - offered a number of examples to support its conclusion that party partisanship is playing an increasing role in determining who is allowed to remain in the US.

For example, the Post says, "Two newly appointed immigration judges were failed candidates for the US Tax Court nominated by President Bush; one fudged his taxes and the other was deemed unqualified to be a tax judge by the nation's largest association of lawyers. Both were Republican loyalists. Justice officials also gave immigration judgeships to a New Jersey election law specialist who represented GOP candidates, a former treasurer of the Louisiana Republican Party, a White House domestic policy adviser and a conservative crusader against pornography."

The Post review was based on DOJ records and research into the backgrounds of the 37 current judges approved by Attorney General Gonzales or his predecessor, John D. Ashcroft, starting in 2004.

That year, The Post adds, "is when the Justice Department began to jettison the civil service process that traditionally guided the selections in favor of political considerations, according to sworn congressional testimony by one senior department official and a statement by the lawyer for another official."

Since the terrorist attacks of 9/11, the Bush administration has used the nation's immigration courts and its judges to deport hundreds of non-citizens who were detained as terrorism suspects but were never charged with crimes.

Since then, the DOJ has created stiffer guidelines and new rules that make it even more difficult for people the government doesn't want to remain in the country.

The DOJ's introduction of politics into judges' selection of judges was revealed in the Congressional testimonies of former Gonzales Chief of Staff Kyle Sampson and DOJ White House Liaison Monica Goodling. While these two witnesses did specify which immigration judges had been chosen because of their political orientations, The Post study reveals the Republican ties of many.

Sampson and Goodling testified that they were told the practice was legal. But Justice spokesman Dean Boyd said that immigration judges are considered civil service employees who may not be chosen based on political factors, unlike judges in federal criminal courts. Goodling admitted in her testimony that she "may have crossed the line."

Politics is not the only issue involved in hiring immigration judges. In 2005, the government's chief immigration lawyer in El Paso for 22 years filed a lawsuit claiming she was denied a judgeship twice in favor of less-qualified white men who were hired without an open application process.

Her suit alleged that, between 2001 and late 2005, only two Latinos were appointed nationwide as immigration judges. The immigration bench is overwhelmingly male and white, even though Spanish-speaking people from Latin America make up at least 70 percent of the caseload.

The US District Court for the District of Columbia ruled against the DOJ. It found that Ms. Gonzales "had identified a particular policy that has a discriminatory effect on a particular group."

The Court ruled that of the two other applicants for the position, one lacked Ms. Gonzales' experience and another failed to meet the minimum qualifications for the job.

In 2003, the Law Review study says, it was discovered that the "reforms" mandated by Attorney General Ashcroft -- firing five Clinton appointees and encouraging others to leave, requiring most decisions to be decided by summary affirmances or very short opinions, and replacing three-member panel decision-making with single-member affirmances for most asylum cases - "resulted in a sudden and drastic reduction in the rate at which the Board rendered decisions favorable to asylum applicants."

The study concludes with a wide-ranging series of recommendations. These include:

* Within each regional asylum office and within each immigration court, the adjudicators with particularly high and particularly low grant rates should confer with each other and try to ascertain the cause of this phenomenon...If the differences are based on ideologies or preconceptions of the adjudicators, these should be discussed with the regional or national director (in the case of an asylum office) or chief immigration judge (in the case of immigration court.)

* More training should be offered to promote greater consistency. Training for immigration judges should include units on judicial temperament. For example, immigration lawyers have sometimes complained that after an immigration judge is lied to several times by nationals of a particular country, the judge tends to suspect that all nationals of that country are liars. The training could include counseling on impartiality, avoiding stereotyping, and not taking personally the misconduct that the judges sometimes encounter from people who are desperate to remain in the United States.


* The government should implement more rigorous hiring standards. To be selected as an immigration judge, a candidate should have to demonstrate that he or she is sensitive to cultural differences and likely to treat all parties respectfully; capable of managing a large docket without becoming impatient; predisposed to be very careful in judging the credibility of people who claim to be victims of trauma or torture; and able to produce well-reasoned decisions that take into account all of the evidence and arguments presented by the parties.

* Congress and the Department of Justice should provide immigration courts with resources to enable the judges to work at the standards expected of bodies that adjudicate important cases. At present, the immigration courts are severely understaffed.

* Every immigration judge should be assigned at least one law clerk, and the quality of recording and interpretation should be improved. An increase in the number of judges is only a start on improving resources.

* The government should provide appointed counsel for any indigent asylum applicant who must defend himself in a removal proceeding in immigration court. People who are trying to prove that they are refugees within the meaning of federal law should not be required to compile supporting affidavits and make highly technical legal arguments without professional advocates, when the consequence of losing may be deportation to countries in which they face imprisonment, torture, and death.

* The Board of Immigration Appeals (BIA) should keep and publish statistics on the decisions of individual members, at least in asylum cases. If one member is granting asylum or remanding asylum cases at ten times the rate of another member, the Board itself, and the public, should at least be aware of this fact.

* The DOJ should amend the BIA's operating regulations to prohibit the Board from assigning asylum cases to a single member for decision. Given the apparently huge differences of opinion among adjudicators about who deserves asylum, more than one member should review each case, and the reviewers should discuss the reasons for any differences of opinion.

* Immigration Courts should have statutory independence from the DOJ, and Immigration Judges should be confirmed by the Senate as part of a new independent agency.

* Congress should amend the judicial review provision of the Immigration and Nationality Act to restore a more normal role for the federal courts in their review of asylum decisions. Currently, the federal courts defer excessively, especially in the southern circuits, to decisions of immigration courts and the Board of Immigration Appeals, even though those decisions appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or not the asylum applicant had representation or dependents in the United States.