Immigration Judging Capricious

The New York Times has brought the nation's attention to an academic study which powerfully shows with hard numbers that the outcome of immigration asylum cases is intensely impacted by the judge appointed to handle the case, and that the role of the Board of Immigration Appeals in limiting this disparity has been eviscerated.

A couple of examples:

The study found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. . . . In the Miami immigration court, one judge granted 3 percent of the asylum cases, while another granted 75 percent.

The cases from the same country, and cases in the same judicial district, are generally too similar to explain such a huge disparity with anything other than a difference in the attitudes of the judges involved. Asylum cases from a particular country involve a core of similar facts about the political regime's actions and intents, and within a judicial district, a roughly comparable mix of cases is assured by the random assignment of judges to particular cases.

All of these judges, of course, are applying the same portion of the same statute, which is purely a matter of federal law, and all of the cases are identified by the same federal agency, the immigration and customs enforcement division of the Department of Homeland Security, and prosecuted by the same Justice Department that appoints the judges. The substantive standard for granting asylum has not changed during the period of this study.

While there are disparities between judges in other parts of the law, such as sentencing, I can think of few studies that have identified such huge disparities in such similar cases, particularly in light of the fact that the legal standard applicable to asylum cases, on its face, does not afford vast discretion to the judge.

In asylum cases, it comes down to the luck of the draw, and that luck is politically influenced:

Justice Department officials said last week that the investigation of Monica M. Goodling, a former aide to Attorney General Alberto R. Gonzales, has been expanded to include her role in helping to appoint immigration judges.

Ms. Goodling testified last week that she had “crossed the line” in applying political considerations to candidates for nonpartisan legal jobs. Immigration judges are appointed by the attorney general, and 49 of 226 current judges were appointed during the tenure of Mr. Gonzales.

In other words, Congress has been frankly told that the administration illegally ignored civil service rules to make polical appointments. In Kentucky, that is enough to lead to indictments, but in the federal government, this is apparently tolerated.

With regard to appeals:

In 2002, Attorney General John Ashcroft made streamlined the work of the appeals board, reducing the number of board members to 11 from 23 and encouraging more decisions by single members and without explanation. . . . Asylum applicants who were represented by lawyers received favorable appeals decisions from the board in 43 percent of cases in 2001, the year before the changes took effect. By 2005, asylum seekers with lawyers won their appeals in 13 percent of cases.

This blog (here, here, here, here, here, here, and here) and public accounts generally (I can't blog them all), are replete with examples of bad immigration judges and judging, and even Attorney General Gonzales has acknowledged that there are serious problems.

Not surprisingly, the percentage of cases going onto the U.S. Courts of Appeal for further review has surged, and the number of people granted asylum is down 12%.