Asylum Outcome Increasingly Depends on Judge Assigned
The outcome for asylum seekers has become increasingly dependent upon the identity of the immigration judge assigned to hear their case. While judge-to-judge decision disparities have long existed, a detailed comparison of asylum decisions handed down by judges sitting on the same Immigration Court bench showed that differences in judge denial rates have significantly increased during the last six years. Nationally, the average decision disparity in asylum cases worsened by 27 percent.
The median level of asylum decision disparity that asylum seekers face is now over 56 percentage points. That is, the assignment of the judge for the typical asylum seeker could alter the odds of receiving asylum by this magnitude. For example, while the specific ranges differed by court, the typical asylum seeker might have only a 15 percent chance of being granted asylum all the way up to a 71 percent chance depending on the particular judge to whom their case is assigned.
During this same period, the court has become increasingly challenged by a rising backlog of cases, along with administrative pressure to expedite proceedings. While the evidence does not establish a definitive link between production pressures and increasing judge-to-judge decision disparities, as discussed further below, other administrative courts facing management pressures to reduce a backlog have brought about increases in decision disparity.
These latest Immigration Court numbers are based on case-by-case records on each asylum decision that were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These court records were provided by the Department of Justice's Executive Office for Immigration Review (EOIR) as a result of a series of Freedom of Information Act requests by TRAC.
Measuring Asylum Decision Disparity
It is natural for asylum decisions to vary since the merits of individual cases differ. Achieving the goal of "equal justice" under the law does not mean assuring the same outcome for every case. Decisions should reflect the individual merits of each situation, applying the standards that the law sets. Some individuals merit asylum, while others do not.
Large differences in the decisions of individual judges that are not the result of differences in the nature of the incoming cases, however, are not desirable. These differences are what TRAC means when it uses the term, decision disparity.
Prior Efforts at Reducing Asylum Decision Disparity
Ten years ago, in July 2006, TRAC published its first report on the handling of asylum cases by the Immigration Courts. After examining all recorded cases in which immigration judges decided asylum cases from FY 1994 through the first few months of fiscal year 2005, TRAC found wide disparities in asylum denial rates had persisted from judge to judge throughout this period.
In August 2006, shortly after TRAC's report was published, then U.S. Attorney General Alberto Gonzales directed EOIR "to review [TRAC's] study and provide an analysis and, if appropriate, recommendations to the Deputy AG with respect to this issue." This specific directive was part of wider reform measures the Attorney General also announced.
EOIR's review mandated by the Attorney General confirmed that a problem did exist (although it viewed the problem as "attributable to a relatively small number of judges"). The agency's internal report on its investigations concluded: "EOIR is committed to addressing this issue through an enhanced training, mentoring, and supervisory program that will not improperly impinge upon the adjudicatory role of the immigration judges, but that will ensure that all immigration decisions are based on the law and facts in each specific case." It then took steps to implement these to address the problem.
The reforms related to asylum decision disparity are described in TRAC's June 22, 2009 report. A broader assessment of all of the reforms initiated by Attorney General Gonzales is given in TRAC's June 30, 2009 report.
How does TRAC measure decision disparity in asylum cases? We do this by taking advantage of court practices that assign incoming asylum applications to judges within a court on a random basis.
These random assignment procedures parallel what happens in a scientific experiment where individuals are assigned randomly to different treatments, as in a drug trial. Here, however, instead of being assigned to different drug treatments, asylum seekers are assigned to different judges. When individual judges handle a sufficient number of asylum requests, random case assignment will result in each judge being assigned an equivalent mix of asylum seekers.
Or put another way: to the extent judges' grant or denial rates depart from one another within the same court, if cases were randomly assigned, these differences cannot be explained on the basis of the worthiness of the cases handled by individual judges because each is handling an equivalent mix of cases. One or more other factors - such as the pre-existing predilections of the judge assigned - must then be the source for these disparities.
Many Asylum Seekers Now Face Extreme Levels of Decision Disparity
Based upon a detailed analysis of immigration court records covering the last six years, TRAC compared the denial rates for individual judges within each court.
Table 1 lists asylum decision disparity for each of the forty-eight Immigration Courts that had two or more judges with a sufficient number of asylum decisions for reliable comparison. Decision disparity is measured by the difference between the asylum denial rate for the judge with the lowest and highest denial rates on each court.
Considering these court-by-court decision disparities, we found that the median magnitude of asylum decision disparity that asylum seekers now face was 56.8 percent. That is, the particular judge assigned the asylum seeker changed the odds of receiving asylum by over 56 percentage points. Half of asylum seekers faced disparity this large or larger, while the remaining half confronted disparity that was this level or smaller. For example, while figures varied by court, a typical asylum seeker might have only a 15 percent chance of being granted asylum all the way up to a 71 percent chance depending on the particular judge assigned to hear the case.
Ten courts with the highest decision disparities account for the vast majority (63%) of asylum decisions. These ten are shown in Figure 1.
Asylum seekers in the Newark, San Francisco and the Los Angeles Immigration Courts confronted the highest level of decision disparity. In Newark, the 6 judges serving on that court had denial rates that varied between a low of 15.7 percent and a high of 98.6 percent. Their grant rates accordingly varied from only 1.4 percent all the way up to 84.3 percent.
The outcomes handed down for the 17 judges on the San Francisco Immigration Court were similarly extreme. In that court, asylum denial rates varied from a low of 15.3 percent to a high of 97.7 percent depending on the judge. (Thus their grants rates varied from 2.3 percent to 84.7 percent.) The 33 judges on the Los Angeles Immigration Court had asylum denial rates ranging almost as widely. There the denial rates varied from a low of 21.8 percent to a high of 97.1 percent. (Grant rates that thus varied between 2.9 percent and 78.2 percent.)