Putting TRAC to Work
  Legal and Scholarly
University of Colorado/Colorado Seminary
July 19, 2013

Explaining the Divergence in Asylum Grant Rates among Immigration Judges: An Attitudinal and Cognitive Approach
By Linda Camp Keith, Jennifer S. Holmes, and Banks P. Miller

The legal strictures in asylum cases are loose because both the facts and the law are vague (Baum 2010; Legomsky 2010). Law (2005) notes “the indeterminacy of the governing legal standards” in asylum cases, which leaves judges “to define vague yet crucial terms-‘political,’ ‘persecution,' ‘well-founded fear,' ‘more likely than not'-on a case-by-case basis” with “precedent provid[ing] only limited guidance, given the dependence of asylum claims on case-specific facts” (830). As Martin (2000) observes, the “basic facts in any particular [asylum] case are highly elusive” and “the adjudicator has to decide what happened in a distant country” with only two imperfect sources: general human rights country reports and the personal testimony of the asylum seeker (3). Alexander (2006) notes that immigration courts routinely lack evidence: “the witnesses, objects, and documents that could prove or disprove a fear of persecution, for example, are likely beyond reach overseas” and “indeed, the ability to gather evidence may be blocked by the very government alleged to be the persecutor” (19). In fact, IJs have been criticized by federal court of appeals judges for an exaggeration of the availability of evidence in many countries of origin (for example, see Judge Posner in the Seventh Circuit opinion in Iao v. Gonzales 2005, 533–35). Further compounding factors include the reality that over three-fourths of the applicants do not speak English (any one of 389 languages may be spoken at the hearings), and that most applicants are not represented by counsel, requiring judges to guide lawyerless individuals through the proceedings, advise them of their rights and options for relief of removal, and answer questions........[citing TRAC research].

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