An extensive analysis of how hundreds of thousands of requests for asylum in the United States have been handled has documented a great disparity in the rate at which individual immigration judges declined the applications.
Based on data originally collected by the Executive Office for Immigration Review (EOIR), an agency in the Justice Department, the TRAC study examined all recorded cases (297,240 of them) in which the judges decided asylum cases from FY 1994 through the first few months of fiscal year 2005.
Because some changes occurred in the immigration law and other relevant factors during the entire period, the analysis looked at the asylum decisions reached from both FY 1994 to FY 1999 and from FY 2000 to the first months of FY 2005. Here are three findings from the most recent years about 208 immigration judges, each of whom had decided at least 100 of the matters.
Denial rates for the 208 judges ranged from a low of 10% to a high of 98%.
Expressed another way, the data showed that while ten percent of the judges examined denied asylum in 86% or more of their decisions, another ten percent of the judges had denied asylum in only 34%.
See Figure 1 and accompanying table.
Despite the changes mentioned above and in the makeup of the court that are known to have occurred between 1994 and 2005, the findings about the disparity in the two periods were surprisingly consistent.
The EOIR, told about the forthcoming report, said that because of "its strict no-interview policy" it would have no comment. The Justice Department, the EOIR's parent agency, was provided a brief summary of some of the report's findings and also declined to comment.
The Immigration Court: A Matter of Broad Concern
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.
Quite recently, for example, Attorney General Alberto Gonzales -- the man whose agency has overall responsibility for administering the courts -- joined the ranks of the critics when he issued an unusually harsh public statement about the court and ordered the deputy attorney general, the number two official in the department, to make a top level review of its operations.
Gonzales, in a short January 9 statement, appeared to limit his criticism to the failings of individual immigration judges rather than the possible existence of more systematic problems in the operation of the court. After noting he was convinced that a majority of the immigration judges were discharging their duties in a professional way, the attorney general said there were some whose conduct "can aptly be described as intemperate or even abusive and whose work must improve." And, in a comment that appeared to be addressed directly to the judges, Gonzales added that he insisted that all those who appeared before the court be treated with "courtesy and respect. Anything less would demean the office you hold and the department in which you serve."
Possibly contributing to the attorney general's decision to launch this top-level investigation has been a series of federal appeals court decisions finding fault with its handling of a number individual immigration cases. One of the most critical was a March 9, 2005 opinion in which Judge Richard Posner of the Seventh Circuit Court of Appeals ordered that the decision denying asylum to a Chinese woman named Zhen Li Iao be vacated and sent back to the immigration court for a second hearing.
Judge Posner wrote that his decision to vacate was based on six "disturbing features" about the particular case before him. He then added, however, that in his view these disturbing features "bulk large in the immigration cases" that had reached the 7th Circuit Court of Appeals. "The United states has every right to control immigration," he said. "But Congress has not authorized the immigration service to do so by denying asylum applications in unreasoned decisions." 400 F.3d 530 (7th Circuit 2005)
But the judge concluded with a caution that the handful of cases that had come to the attention of his court "are not a random sample of all asylum cases and that the problems that the cases raise may not be representative."
TRAC's analysis of the decisions of most of the nation's immigration judges about tens of thousands of different asylum cases, however, provides powerful evidence that the problems of the immigration court go far beyond the failings of a few rotten apples -- the individual judges criticized by Attorney General Gonzales. Rather, the examination of the case-by-case records appear to document a far broader problem : a long-standing, widespread and systematic weaknesses in both the operation and management of this court.
Asylum Seekers and the Role of the Immigration Court
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. See TRAC report on asylum law and asylum process. 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.
Asylum seekers appearing before the immigration court come from many nations. For many years asylum seekers from China have made up the largest contingent of cases decided by the court. Chinese represent over one in five (22.3%) of every asylum seeker since FY 2000. During this same period, one in eleven came from Haiti (9.3%) and a similar proportion were from Colombia (9.1%). Other countries in the top ranks are shown in Figure 2 and accompanying table.
It goes without saying that not everyone who knocks on the door gains admittance. Each asylum seeker must establish that he or she is entitled to asylum.
Representation. The data indicate that an important determining factor in the decision process is the presence or absence of legal representation. While having a lawyer by no means ensures success -- 64% of these requests are denied -- the denial rate for those without it is far higher, 93%. See Table 1.
Nationality. In addition, given the required legal grounds for a successful asylum claim, asylum seekers from some nations tend to be more successful than others. Since FY 2000, more than 80 percent of individuals from El Salvador, Mexico and Haiti, for example, have been denied asylum. At the other extreme are asylum seekers, while less numerous, from Afghanistan and Burma whose odds of denial are less than 30 percent. See ranking tables by nationality for FY 2000-2005 and FY 1994-1999.
Asylum Decisions by Individual Judge
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 2005 was summarized above and shown in Figure 1. The median denial rate -- half turned down more, half less -- was 65%. But the data also 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. See Figure 3.
Just focusing on the recent period since FY 2000, the court records show that for the whole system Judge Mahlon F. Hanson, sitting in Miami, had the highest proportion of denials -- 96.7% of his 1,118 decisions in represented cases. Judge Mahlon was appointed to the court in 1995 after a varied career that included nearly a decade in what was then known as the U.S. Immigration and Naturalization Service (INS).
The judge with the smallest proportion of denials of all the judges for this period was Margaret McManus of New York. She declined 9.8% of her 1,638 asylum requests in represented cases. Judge McManus was appointed in 1991. She began her career in private practice and for one five year period was a staff attorney with Legal Aid Society's Immigration Unit.
Judges ranked in the top ten and bottom ten by their asylum denial rates during FY 2000 through the first months of FY 2005 are shown in Figure 4. For the complete list of judge rankings see FY 2000 - 2005 and FY 1994 - 1999.
For more detailed information, see TRAC's reports on individual immigration judges.
Why Do Denial Rates Vary Among Judges?
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.
There are, however, many possible explanations for the huge contrast in the decisions made by so many immigration judges, including the two at the extremes. One of the most obvious factors that must be considered is that the asylum seekers who were assigned to Judge Hanson may have been fundamentally different from those assigned to Judge McManus. For example, in Miami the vast majority of asylum seekers came from Haiti and Colombia, while asylum seekers were largely drawn from China and Albania in New York.
Comparing "Similarly Situated" Asylum Seekers
To deal with this question of composition and its impact on the resulting asylum decisions, TRAC identified a group of similar cases that could be isolated from the total and then examined how they were decided in a single district so there could be reasonable confidence that "apples" were being compared to "apples." TRAC's chosen focus was asylum seekers from China who were represented by counsel and whose requests were processed by judges sitting in New York City.
To help control for other extraneous factors that might possibly influence outcome, only decisions for individuals who were represented by counsel were again considered. Further, the two judges assigned to conduct hearings for detained individuals at the Varick Street Detention Center were excluded.
For the nation as a whole, Chinese now make up the largest nationality among all asylum seekers. In addition, about sixty percent of these individuals were handled in the immigration court in New York. As a result, even this more focused study was able to locate 34 judges all of whom had made at least 100 decisions about represented Chinese asylum seekers.
One other factor that was considered was the possibility that different kinds of cases were routinely being assigned to different judges in New York. The chief clerk in that immigration court, however, assured TRAC that cases coming into the system are distributed to the judges on a random basis. Several defense attorneys practicing in the New York City immigration court who TRAC asked for their observations also agreed on this point.
Once again, however, TRAC's study found a surprising lack of consistency, even though the asylum seekers were in so many ways similar:
The data showed that the recently retired Judge William F. Jankun declined to grant asylum in 94.5 percent of the 421 matters he decided.
At the other end of the scale, Judge Margaret McManus only denied 6.9% of the 929 Chinese matters she decided. (Judge McManus's declination rate here is slightly different than above because in this case the analysis is limited to individuals from China.)
Figure 5 and the accompanying table show that denial rates ranged across the entire spectrum between Judge Jankun and Judge McManus. Five judges declined 80% or more of the requests. At the other end were six judges who declined 25% or fewer.
Decisions of these same judges were also compared for non-Chinese asylum seekers. How does the same judge's denial rate for Chinese asylum seekers compare with his or her denial rate for non-Chinese? Judges who had high denial rates for Chinese also denied non-Chinese asylum seekers at similarly higher rates. Judges who denied Chinese asylum cases at lower rates also denied non-Chinese also at lower rates. See table.
The extent of the judge-by-judge disparity in the proportion of asylum matters that are declined is surprising. And the court's own data document that this problem has existed for at least a decade and that it persists even when the applicants being compared appear to be quite similar. It is clear that these findings directly challenge the EOIR's commitment to providing a "uniform application of the nation's immigration laws in all cases."