Tuesday, August 1, 2006

For asylum seekers sometimes there is no "right way"

One of the favorite mantras of the anti-immigrant right is that they have nothing against immigration when it's done "the right way," it's only those who try to "cheat the system" and enter "illegally" that they oppose. Their whole philosophy is based on the premise that there is path for those who meet the criteria, a path that will allow them to escape poverty or oppression. Inherent in this philosophy is the belief that for the deserving, the system works. Without that belief, their rhetoric rings hollow.

Certainly no group embodies this ideal of "the deserving" more than those who seek asylum in the US. They come not for monetary gain, or to make a better life economically, they come not to send home remittances, or seek fortune; they come for one reason only – to survive. They come to escape genocide or war, natural disaster, famine or political oppression that leaves them no other choice. They come to save their lives. Yet a recently released study shows that it is not circumstance or merit that determines whether or not an asylum request is granted - it's the luck of the draw – it comes down to which judge hears their case.

A report released by Transactional Records Clearinghouse, a research group associated with Syracuse University, looked at close to 300,000 requests for asylum in the United States over a ten year period, to see how they were handled.

Their analysis showed a shocking disparity in the rate at which individual immigration judges declined the applications.According to the data, those seeking asylum have better, or worse, chances depending on their geographic location.

One Judge in Miami had denied 96.7% of his 1,118 cases, while a Judge in New York had denied only 9.8% of her 1,638 asylum requests, raising serious questions about the quality of justice in US immigration courts.

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The study also documented a disparity due to other factors as well. National origin played a role along with the asylum seekers ability to procure legal representation. While those with legal representation were denied asylum in 64% of the cases, those who did not have legal representation were denied in 93% of the cases.

Amongst those meeting the legal grounds to seek asylum, 80 percent of individuals from El Salvador, Mexico and Haiti, for example, had been denied asylum, while those from Afghanistan and Burma had a 70% success rate.

Above the main entrance to the Supreme Court are engraved the words, "Equal Justice Under the Law." This phrase, an idealistic statement of one of the core values of the United States, has now been incorporated into the working philosophies and mission statements of many federal, state and local agencies. One such organization, for example, is the Executive Office for Immigration Review (EOIR), the administrative body within the Justice Department responsible for operating a system of courts that specialize in immigration matters.

In its annual report and on its web site, the EOIR states that it "is committed to providing fair, expeditious, and uniform application of the nation's immigration laws in all cases."

But lawyers who have practiced in this special court, federal appeals court judges, organizations representing those who have been subject to its judgments and others have for many years complained about numerous occasions when the court has in various ways failed to achieve these goals.


Under the authority of long-standing UN conventions and an extensive body of United States law, tens of thousands of individuals each year seek asylum in the United States. Many of these requests are processed by the 200-plus special judges of the immigration court, a wing of the Justice Department with an annual budget of about $200 million. In the last decade, these judges have disposed of "on their merits" somewhere between 25,000 and 35,000 requests each year.

The immigration judges thus are critical decision makers in what is a complex mix of international treaties and U.S. law. In general, the key moment in each asylum hearing comes when the judge, after considering the evidence and listening to direct and cross examination, decides to (1) deny the asylum application (opening up the probability of deportation) or (2) grant it, on either an absolute or conditional basis.


TRAC's systematic examination of the nearly 300 thousand asylum decisions over more than a decade documents a significant judge-by-judge disparity in the proportion of asylum requests that are granted versus denied. These findings held even after restricting our comparisons to only those asylum seekers who were represented by an attorney, and only comparing judges who had made substantial numbers of decisions.

The extreme range in asylum denial rates among the 208 judges deciding 100 or more of these matters from FY 2000 through the first months of FY … shows there were eight judges who denied asylum to nine out of ten of their applicants and two who granted asylum to nine out of ten of theirs. Similar variability was found in the denial rate among the 193 judges who made 100 or more of these decisions in the FY 1994-1999 period.

Given the broad constitutional hope that similarly situated individuals will be treated in similar ways and the EOIR's stated goal of providing uniform application of the immigration laws, the disparities in this aspect of the court's operations are surprising.


Obviously, the "right path" towards immigration heralded by the right and their media minions is not quite as straight and narrow as they'd like us to believe. The study found enough discrepancies and disparity in the asylum seeking process to cast serious doubts on the system as a whole. Few would disagree that at the least, asylum seekers deserve a fair and equitable hearing before an impartial justice system. To do otherwise, runs contrary to the very principles of equality under the law on which our nation was founded.

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