EDITORIAL.
When it comes to asylum cases, where the stakes are literally life and death, the judicial system often appears to fall far short of the ideal. As this pivotal study reveals, arbitrary factors like the identity of a particular asylum officer or immigration judge have an alarming influence on whether asylum seekers begging for refuge are granted protection or deported back into harm’s way.
In “Refugee Roulette: Disparities in Asylum Adjudication,” Professors Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag analyze vast databases of decisions spanning 1999-2005. Their findings expose a broken system. Grant rates for asylum applicants from the same country vary wildly depending on the region where the case is heard. Even within the same building, one immigration judge may be over 20 times more likely to grant asylum than another judge down the hall. Female judges grant asylum at far higher rates than male judges. Represented applicants do dramatically better than those without lawyers. And ideology appears to play a substantial role, with Republican judicial appointees voting against asylum seekers at greater rates.
Perhaps most disturbingly, the chance of winning asylum seems to depend as much on luck and arbitrariness as it does on the merits. After the attorney general implemented “streamlining” reforms in 2002, the rate of favorable rulings by the Board of Immigration Appeals plunged abruptly from 37% to 11% – suggesting that changing political winds, not just case facts, determine asylum fates.
This meticulous study illuminates a humanitarian crisis within America’s borders. Asylum seekers fleeing torture and death must spin a roulette wheel to see whether they will be protected or persecuted anew. As the authors powerfully argue, justice demands urgent reforms to fix these disparities. Their data spotlight the need for more consistent training, transparent statistics, independent appellate review, legal counsel for asylum seekers, and formal procedures to check biases.
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SUMMARY.
This article analyzes statistical data on asylum decisions made at various levels of the U.S. asylum process between 1999-2005. The main finding is that there are significant disparities in asylum grant rates that depend heavily on the random assignment of applications to particular asylum officers, immigration judges, or federal appeals courts. Some key results:
- Among asylum officers in regional asylum offices, over 20% deviated by more than 50% from their region’s mean grant rate for applicants from “asylee producing countries” (countries with high asylum grant rates overall). In one office, 51% of officers were this far out of line with the regional norm. Even for applicants from a single country like China, asylum grant rates varied dramatically among officers in the same regional office.
- In the 3 largest immigration courts, over 25% of judges had asylum grant rates that deviated by over 50% from their court’s mean rate for applicants from asylee producing countries. When holding nationality constant, disparities remained – for example, in the Miami court judges’ Colombian asylum grant rates ranged from 5% to 88%. The chance of winning asylum depended heavily on the assigned judge.
- On federal appeals courts, asylum applicants from asylee producing countries had a 1148% higher chance of winning a remand in the Seventh Circuit compared to the Fourth Circuit during 2004-2005. There were major disparities in remand rates even in appeals from Chinese nationals.
- Female immigration judges granted asylum at a rate 44% higher than male judges. Judges with extensive prior experience in roles adversarial to immigrants (like working for DHS) had lower grant rates. Represented asylum applicants were nearly 3 times more likely to win their cases than unrepresented applicants.
- After reforms implemented in 2002 reduced the size and scope of appellate review by the Board of Immigration Appeals, the Board’s rate of rulings favorable to asylum seekers plunged from about 37% in 2001 to only 11% in 2005.
The authors provide several key recommendations to address the disparities and improve the asylum system:
- Training – The asylum officers receive extensive initial and ongoing training, which seems to promote greater consistency. The authors recommend similarly comprehensive regular training programs for immigration judges on topics like cultural sensitivity, trauma, and impartiality. They also suggest joint trainings where judges with divergent grant rates can discuss the reasons behind their differences and be exposed to opposing perspectives.
- Appellate Review – The Board of Immigration Appeals and federal appeals courts should provide more robust oversight on asylum cases, rather than emphasizing speed and backlog reduction. The authors suggest requiring detailed written opinions by the BIA in all asylum appeals, not just affirmances without opinion. They also recommend structural changes to make the BIA more independent and insulated from political pressures.
- Representation – The government should provide appointed counsel to indigent asylum seekers to level the playing field, as represented applicants have far higher grant rates. Trained attorneys know how to document claims, navigate complex procedures, examine witnesses, and argue legal nuances – skills beyond most asylum seekers.
- Hiring – More rigorous standards should be used to select immigration judges, examining qualities like cultural awareness, patience, ability to handle trauma testimony, deep knowledge of asylum law, and predisposition to impartiality. Judges should have some background in immigration law specifically.
- Transparency – The BIA and asylum officers should track and publish statistics on outcomes by individual adjudicators. Disparities and potential biases would become more apparent, enabling self-correction.
Beyond these specific reforms, the authors argue that ingrained inconsistencies and arbitrariness in the asylum system make it fall far short of justice. Only through systemic changes can meaningful equal treatment for all those seeking America’s asylum protection be achieved.
