| A recently published study takes a look at how judges make their decisions when it comes to asylum cases. These decisions can determine whether a person lives in poverty, danger and turmoil, or in a free, relatively safe society with economic opportunity. They can even make the difference between walking free on the street or remaining in detention indefinitely. So what criteria are the judges using? Do inconsistencies exist from state to state, judge to judge or even case to case? The TRAC study examined judicial management of asylum applications filed in Immigration Court.
Generally, a person who has a “well-founded fear of persecution” on the basis of their (1) political opinions; (2) religious beliefs; (3) nationality; (4) race; or (5) membership in a particular social group may apply for asylum in the United States. But what does all that mean exactly?
The perameters and definitions of these descriptions can be so subjective, that--even before this study--we could assume that not all asylum cases were being decided equally. Now we know it's more serious than most of us knew.
Applying for Asylum: A Background
A person may apply for asylum directly to the US Citizenship and Immigration Service (UCIS) where an immigration examiner may decide to grant their case, or if the applicant is not in legal status, refer the matter to an immigration judge.
In most cases a person must apply for asylum during the one-year period which begins when he enters the US, although exceptions are sometimes made on a case-by-case basis, which is why an attorney is really valuable to anyone seeking asylum. (Note that anyone convicted of a particularly serious crime or who have persecuted others is ineligible for asylum.)
Study Reveals Disparities
The new study conducted by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University found wide disparities among the 200+ immigration judges across the US.
Although each case is different, and one would hardly expect immigration judges to approve and deny exactly the same percentage of asylum applications, the TRAC study found vastly different percentages of approvals and denials, even among immigration judges in the same city for applications submitted by people of the same nationality.
For example, New York City judicial decisions on asylum for nationals of Peoples Republic of China (PRC), revealed one judge denying 94.5 percent while another denied only 6.9 percent.
The study provides valuable biographical information about every immigration judge in the country, details the percentage of asylum applicants--by nationality--who appear before each one, and ranks the judges accordingly to percentage of asylum applications denied.
No doubt asylum applicants and their attorneys will be looking at this study with a keen and studious eye.
The study examines neither the facts and circumstances of individual cases nor the percentage of cases later reversed by either the Board of Immigration Appeals or by the Federal Appeals Courts.
Quite a few Federal Appeals Court decisions have harshly criticized the practices and decisions of specific immigration judges. The problem may be exacerbated by a lack of Board of Immigration Appeals oversight, especially in recent years.
Deporting a valid asylum applicant back to his country could result in persecution or even death. It's so critical that each and every applicant get a full and fair hearing, and that the case decision not be predetermined simply by the personal philosophies of the presiding immigration judge.
Neither should an asylum applicant luck out simply due to the experience and the skill of the representing attorney.
People's lives are at stake here. Unfair immigration judges and incompetent attorneys should be held accountable.
The TRAC statistical study is only a starting point. There is no stated percentage of asylum applications that "should" be approved or denied - no quotas. The decision should be based on the facts of the individual case, and on whether the “well-founded fear” standard was met.
This requires that the transcripts of individual hearings be analyzed. It also calls for a complete, objective and balanced administrative and judicial appeals process.
The TRAC study deals solely with asylum, and strongly suggests that there are significant injustices with the present system.
"One wonders," says immigration attorney Carl Shusterman, "how much greater the problems with the Immigration Court system are with respect to discretionary applications where Congress has eliminated the right of the applicant to judicial review."
Indeed, immigrants do not have many of the due-process-of-law rights that Americans take for granted. Clearly, this applies to detention without a hearing, and indefinite detention, as well as to asylum. What other hidden injustices are lurking in courtroom files? Hopefully we will find out and establish controls to help get rid of them. Afterall, this is America, a democracy. And democracy should not be selective. |
