Immigration

Oh, to Be Chinese in Orlando

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A study to be published in the Stanford Law Review finds wide variation between cities and judges in the rate at which refugees are granted asylum. To win asylum, an applicant has to convince an immigration judge that he would face persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Judging from cases decided between January 2000 and August 2004, that task seems to be relatively easy in San Francisco, where 54 percent of refugees won asylum, and considerably harder in Atlanta, where 12 percent did. (The national average was 40 percent.) Some of the differences between cities may be due to different mixes of refugees; refugees from China, for example, have better chances than refugees from Haiti.

The differences between judges are harder to explain. In Miami, The New York Times reports, "Colombians had an 88 percent chance of winning asylum from one judge…and a 5 percent chance from another judge in the same court." Some of the inter-judge variation is linked to sex: "Female immigration judges grant asylum at a 44 percent higher rate than their male colleagues," perhaps partly because they are more likely to have worked for "organizations that defended the rights of immigrants or the poor" (an explanation that also leaves room for the theory that women are, depending on your point of view, either more caring and compassionate or more likely to let emotion interfere with faithful application of the law).

"Oftentimes, it's just the luck of the draw," an immigration lawyer tells the Times. "It's heartbreaking. How do you explain to people asking for refuge that even in the United States of America we can't assure them they will receive due process and justice?"

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  1. “Oftentimes, it’s just the luck of the draw,”

    Big Fucking Deal. Welcome to a court system run by human beings. This kind of thing happens in the criminal system all of the time. Unles you want to just stop granting asylum or grant it universally, there is always going to be an element of luck involved in the system. If there are egregous cases where judges should have granted asylum but didn’t, then report about them. But, reporting that there are variations between judges is really just telling a non story.

  2. And, oddly enough, the Justice Department Inspector General is looking into charges that the administration has improperly stacked immigration courts based on partisan activism.

  3. “Oftentimes, it’s just the luck of the draw,….” “Welcome to a court system run by human beings.”

    Good thing we don’t have the death penalty administered by the same court system.

  4. the theory that women are…more likely to let emotion interfere with faithful application of the law

    MISOGYNIST!

  5. Lamar,

    I’ve heard that North Carolina has a prosecutorial system stacked by human beings.

  6. Look around at any two jurisdictions in the country and you will find that a given crime in one court will meet with much harsher punishment than in another court. That is the price we pay for having judges and juries. Now, the sollution to that was to have minimum mandatories for crimes so that all crimes are punished equally in every jurisdiction. Do you want to have the same kind of system here? If you give people discretion you have to live with that discretion.

  7. Look around at any two jurisdictions in the country and you will find that a given crime in one court will meet with much harsher punishment than in another court.

    I thought it was the other way around.

  8. Another problem I see with the data is that I have little doubt that the identities of the “soft” and “hard” judges are known by the immigration law community.

    That means that there are savvy immigration lawyers out there contriving to get their cases in front of the soft judges.

    This means, of course, that the petitioners with the best resources and the easiest cases probably end up being almost gravitationally drawn to the softest judges, and the petitioners with bad or uninformed lawyers or whose cases are so difficult that there’s no point in gaming the system end up in front of the hardest judges.

  9. John,

    How about, “Sometimes disparities are a problem and sometimes they’re not, and I’d actually have to have more information than is provided in this blog post before I make up my mind?”

  10. “How about, “Sometimes disparities are a problem and sometimes they’re not, and I’d actually have to have more information than is provided in this blog post before I make up my mind?”

    That is what I said to begin with. The existence of a disparity means nothing. It could be that the judges are all acting fairly just getting different cases. It could be that the ones who never grant asylum are in the right and the ones who do are granting it for spurious reasons. Or, it could be the other way around and people are being unfairly denied asylum. The existance of the disparity says nothing about that which is why I said “If there are egregous cases where judges should have granted asylum but didn’t, then report about them”. This disparity is a non story without looking at the facts of the different cases before different judges.

  11. How do you explain to people asking for refuge that even in the United States of America we can’t assure them they will receive due process and justice?

    Easy…like this:

    In your search for asylum we can give no assurance that you will receive due process and justice.

    See?

    Anyway it looks like due process was given…it was just the equal part of equal justice that was not.

  12. Someone should make a web site showing the best places to seek asylum…make it a real market.

  13. “Anyway it looks like due process was given…it was just the equal part of equal justice that was not.”

    How do you know? Do you know even on fact about any of these cases? Being eligible for asylum means you really face death or persecution if you are returned home, not that you will be poor or that you like the U.S. better. My guess is that most of these people are economic immigrants not legitimate refugees and that the judges who are denying the request are probably doing the right thing by the law. The ones who grant them at a high rate probably don’t apply the law and let people stay because they feel sympathy for them. There is no evidence in this article that people aree being unfairly denyed assylum or due process. Indeed there is just as much evidence that people are getting in who probably shouldn’t but are lucky enough to get before the right judge.

  14. the theory that women are…more likely to let emotion interfere with faithful application of the law

    Are women more likely than men to practice/favor/support jury nullification?

  15. JOHN =

    Neither here nor there, but have been following the stories about how we’re rejecting asylum for Iraqis who’ve aided US forces and had family members killed/kidnapped? Last year we took on 202 Iraqis as ‘refugees’. Australia, by contrast, accepted 2000. In Feb condi announced plan to accept a whole lot more, and creating special class of visa for them. Up till recently, many were barred for ‘supporting terrorists’ because they’d paid ransom for kidnapped family members.

    ehh, they’re all probably skyving anyway.

  16. Gilmore,

    That doesn’t surprise me. Perhaps the ones who are granting asylum are in the right. I would imagine though that given the times, someone from the middle east is more likely to get screwed than someone from Latin America, which is wrong.

  17. One of the funny (black humor) stories was about Nour Al-Khal, a translator for a murdered US journalist, who was rejected because “her country was now a democracy and did not qualify as a politically oppressive government”.

    Now your neighbors might want to kill you, but hey, technically thats not political asylum. Next!

  18. face persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

    Hypothetically, imagine the leader of a country decides to randomly kill 5% of the population. The computer generated list of victims ends up balanced between groups. Would some one on that list be out of luck?

  19. 1) Forum shopping in immigration courts is difficult, as the venue is generally determined by where you live and cases are randomly assigned to judges in that court. Of course, you could move to San Francisco, but a lot of refugees don’t have the resources necessary to do so, nor will that ensure that you get the good judge.

    2) The real problem is the fact that the overwhelming majority of immigration judges are former prosecutors from the INS/DHS. But, that is a problem in the criminal justice system as well, at least here in Texas where judges are elected. President shrub tried to change that recently by making the appointment of immigration judges a pure political patronage system, but that just means we are getting new immigration judges with no experience at all with immigration law, but good fundraising skills.

    There are, of course, other variables, but this seems to be the primary one, given my experience as an immigration lawyer.

  20. Would some one on that list be out of luck?

    I would say no, as they belong to the “particular social group” of citizens of that country.

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