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?