Don’t Apply for Asylum in Atlanta
posted by Frank Pasquale
That’s the advice savvy immigration lawyers will probably be giving applicants after the publication of a new analysis of 140,000 immigration decisions. The Atlanta office granted asylum to only 12% of applicants, compared to a national average of 40%. Intracourt disparities were also astonishing:
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 reminds me of a fascinating documentary entitled “A Well-Founded Fear,” which looks inside one immigration office and records cases presented to staff there. My main impression of the process (or lack thereof) was that the judges were often tasked with a near-impossible job of figuring out whether a given applicant was “credible” on the basis of a very informal “hearing”–basically, just listening to their story and asking questions designed to provoke inconsistent statements. Only a thick paper file documenting trauma or home country conditions had the potential to deter a snap judgment of “not credible.” The disparity among judges is also quickly in evidence–one appears to be a classic “bleeding heart,” but she is easily outnumbered by others who appear ready to dismiss just about any narrative of persecution as unbelievable.
Will Article III courts intervene to supervise this “agency under stress“? Early indications are grim. Consider this language from a First Circuit opinion in Albathani v. U.S.:
the Board member who denied Albathani’s appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a nine-hour day. . . . We are not willing, however . . . to infer from these numbers alone that the required review is not taking place. . . . [W]orkload management devices . . . . do not, either alone or in combination with caseload statistics, establish that the required review is not taking place.
Which leads me to wonder–would one minute of review be enough? Fifteen seconds? When would such nanoreview cease being a “matter committed to agency discretion,” and threaten our sense of the rule of law?
May 31, 2007 at 5:11 pm
Posted in: Administrative Law, Immigration
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Responses (3)
Andrea - May 31, 2007 at 6:31 pm
Don’t forget, there’s a difference between having an affirmative case decided by an asylum officer (as in Well-Founded Fear) and a defensive case decided by an immigration judge (as in the study.) The officers are much, much preferred by lawyers and clients because the hearings are less confrontational (in an office instead of a courtroom with a prosecutor) and the officers are sometimes more trained and experienced than the luck-of-the-draw political appointee you may get for an immigration judge. And at least you get an extra level of review before the BIA rubber stamps whatever egregious behavior your IJ exhibited (the article accurately notes Ashcroft’s work in essentially stripping immigrants of real judicial review.)
The system is broken badly – and let’s not forget this isn’t just a sad domestic policy thing, it’s our obligations under the Refugee Convention that are at stake. My heart breaks thinking about how many people with legitimate asylum claims terrible IJs have ordered deported to their countries, sending them to their deaths.
Matt - June 1, 2007 at 5:42 pm
This was a pretty good article about a paper that sounds good. But, it’s not anything that is news to anyone regularly working in immigration, or at least not on asylum claims. It’s been an open secret (or not even a secret) for a _long_ time that different judges give massively different grant rates. If you get 3 judges or whatever w/ bad grant rates in one place then it’s no good to apply there. The BIA rubber-stamp approach that denies justice and clogs the district courts was part of the Bush/Ashcroft plan to get rid of the case back-log. Rather than, say, doing this by increasing the size of the BIA or even of IJs and asylum officers so that fewer cases needed to go to appeal the most ‘liberal’ members of the BIA were dismissed or reassigned and the core ‘conservative’ group was kept. This group now just rubber-stamps nearly all denials leading the circuit courts to have to do review. It’s a terrible move. (That said, the US still has, along with Canada, _by far_ the highest over-all grant rate for asylum applicants so while we do many things very badly at least we do not have an over-all single-diget grant rate as do many (perhaps most) European countries.)
Frank - June 1, 2007 at 10:24 pm
Thanks much for those contextualizing comments.
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