Biased Judging (revisited)

At the end of 2005 I co-authored an article about biased judging entitled, “Overwhelmed Circuit Courts Lashing Out at the BIA and Selected Immigration Judges: Is Streamlining to Blame?” 82 Int. Rel. No. 48 (December 19, 2005). While the issue has not captured the attention of the media in the past several years the way it did in 2005, the latest article, posted below, makes evident that the concern is still relevant five years later.

Decision-making in asylum cases has always been intriguing given the vast disparity in rulings that seem to exist from one judge to another. Syracuse University’s ”TRAC” has addressed the concern statistically, and affirms that the disparity has declined in recent years. See, http://trac.syr.edu/immigration/reports/209/. Additionally, two newer articles on this issue, one from the Law Bulletin and the other from The Sun Times, are pasted below.

Perhaps one of the most egregious cases we wrote about in 2005 about was Fiadjoe v. Attorney General, 411 F.3d 135 (3d, 2005). In this asylum matter, the applicant, a young Ghanaian woman, had been horribly abused by her father, who belonged to a peculiar traditional sect. She testified that she had been his sex slave from the age of seven, subjected to brutal beatings and had boiling water poured on her. The immigration judge held that the testimony was not credible, even fabricated, and began to aggressively question the woman. The Court of Appeals found the immigration judge’s behavior “crude (and cruel).” The judge had tormented her so much on the witness stand that she broke down and began disassociating, a symptom of Post Traumatic Stress Disorder. The judge effectively succeeded in undoing months of psychotherapy the young woman had participated in to address her emotional pain.

More recently, the Court of Appeals for the Ninth Circuit found that an immigration judge denied an immigrant appearing before her a full and
fair hearing by unreasonably limiting her testimony. See, Rendon v. Holder, 588 F. 3d 669(9th Cir. 2009). While this was not an asylum application, the immigration judge’s conduct is equally troubling, especially since this is not the first time this particular immigration judge has been admonished for this very same reason by the federal court. In a case called Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005), the court pointed out that it had previously questioned this specific judge’s faulty legal reasoning three times. This is unusual for a federal court. Usually, the immigration judge remains anonymous and no attention is called to his or her decision-making other than the legal or factual conclusions made.

In paraphrasing my co-author, Gerald Seipp, in our 2005 article, we recognize that most immigration judges endeavor to render fair and impartial decisions. Nonetheless, it is absolutely critical to recall that most immigrants in removal proceedings cannot afford the extraordinary expense of federal court litigation, or the type of remedial effort sought by the Bahamian citizen in the post below, in order to ensure that they receive due process. Therefore, it is vital that biases and other unprofessional behavior in the immigration courts be examined, and that corrective action be taken to assure fair and accurate decisions.

For more on a closely related issue, see December post, “The Price of Justice.”



April 21, 2009 Volume: 155 Issue: 77
Study eyes disparities in asylum outcomes
By Stephanie Potter
Law Bulletin staff writer

Two Georgetown University Law Center professors are urging an overhaul of the country's immigration system, pointing to widespread discrepancies in how officials handle asylum cases.

Andrew I. Schoenholtz and Philip G. Schrag on Monday presented data from their study, titled ''Refugee Roulette: Disparities in Asylum Adjudication,'' at a discussion sponsored by various local bar groups and held at The Chicago Bar Association.

The event featured remarks from Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals, who has criticized flaws in the immigration system both in written decisions and in public forums.

Among the findings of the study was that the 7th Circuit, at 37 percent, has the highest remand rate for immigration appeals in the nation. Courts of Appeal, like other parts of the immigration system, were found to vary widely in their treatment of asylum cases.

In his comments, Posner recommended higher recruitment standards for immigration judges and more training, particularly training in the culture of asylum seekers' homelands. The discussion was moderated by Mary M. McCarthy, director of the National Immigrant Justice Center.

The study was published in the Stanford Law Review in 2007, and is to be published in the fall as a book by the NYU Press. It examined consistency — or the lack thereof — in adjudication throughout the system, from the asylum offices, where refugees make their initial applications for asylum, to the U.S. Courts of Appeal. Jaya Ramji-Nogales, a professor at Temple University's Beasley School of Law who did not appear at Monday's event, co-authored the article and book.

''Neither the government nor asylum seekers want a system where what matters most in a refugee claim is who the decision-maker is,'' Schoenholtz said.

''We don't want a system where an asylum seeker from a country that produces lots of refugees has a 5 percent chance of success before asylum officer or judge X, and an 85 percent chance down the hall, from a different asylum officer or judge."

Yet Schoenholtz and Schrag said that is just the type of immigration system we now have.

The study focused on asylum seekers from 15 countries, including China, Columbia and India.

Among the findings:

• Among six regional asylum offices, the rate at which Chinese refugees' requests for asylum were granted ranged from 15 percent to 73 percent.

• Asylum seekers have a much better chance of winning their cases in immigration courts in New York or San Francisco than in Atlanta or Detroit.

• The single greatest factor that affects whether an asylum seeker wins or loses in immigration courts is whether the applicant has a lawyer. The next greatest factor is the gender of the immigration judge. Female immigration judges grant asylum at a rate 44 percent higher than their male colleagues, the study found.

''We don't know what the right grant rate is,'' Schoenholtz said. ''We don't pretend to know that. All we know is there is no consensus.''

Schoenholtz and Schrag advanced several proposals for reform of the immigration system that they hope will be considered when Congress tackles the question.

They urged better training for immigration judges and joint judging in some cases. They also are pushing for an increase in the number of immigration judges and law clerks and a requirement of written opinions in asylum cases.

Schrag noted that there currently is one law clerk for every six immigration judges, and immigration judges in New York City conduct as many as four hearings on the merits each day.

One key recommendation is to move the immigration courts and the Board of Immigration Appeals out of the Justice Department and create an independent court in order to remove politics from the equation.

The authors also recommend providing free legal representation for indigent asylum seekers.

''If you lose a case, the chance of being sent back to a country where you may be tortured or imprisoned or killed is substantial,'' Schrag said. ''If you're faced with a year and a day in jail in the United States and you're indigent, you get a free lawyer. If you're faced with death in an asylum case, you don't.''

Posner said the study was a model of its kind, but noted that questions of uniformity of decisions and of quality of decisions are separate issues.

''It's a guess that if you have a higher quality at all levels, you would have greater uniformity, but it really is a guess,'' Posner said.

He said asylum adjudication is an inherently uncertain process because of language and cultural barriers and the unavailability of documents and witnesses.

That, coupled with the emotionally and politically charged nature of asylum cases, leads to decisions based on personal factors, Posner said.

Still, he said, certain reforms could improve the uniformity and especially the quality of immigration decisions. Posner described the work load of immigration judges and the Board of Immigration Appeals as ''crushing.''

''Certainly the number of immigration judges and the number of board members should be increased,'' Posner said.

Lisa K. Koop, an attorney with the NIJC who attended the discussion, said the findings of the study reflected her experience. She particularly noted the importance of legal representation for asylum seekers, saying it can mean the difference between life and death.

''We see so many cases where there is that level of gravity,'' she said.

Schoenholtz and Schrag said after the discussion that they are continuing their research and are now focusing on the impact of a 1996 law putting a one-year deadline on asylum applications.

The discussion was sponsored by the NIJC, the Chicago Bar Foundation, the Chicago Lawyer Chapter of the American Constitution Society for Law and Policy, The Chicago Bar Association's Committee on Immigration & Nationality, the American Immigration Lawyers Association Chicago Chapter, and the Midwest Coalition for Human Rights.



Asylum seekers have better luck with northern or female judges
Northern, female judges most likely to let them stay
April 27, 2009

BY ABDON M. PALLASCH Political Reporter apallasch@suntimes.com
http://www.suntimes.com/news/politics/1545294,CST-NWS-asylum27.article#
If you're a political refugee afraid to go back to your homeland, pray you get a woman judge or a Northerner.
A male judge sitting in a Southern court is about twice as likely to reject your asylum plea, according to research from two Georgetown University professors.
"The fact that women are more sympathetic to asylum seekers -- that is certainly a factor, and maybe Southerners don't like foreigners as much," Federal Appellate Judge Richard Posner said with a chuckle. "Maybe people in big cities are more used to having large [less] indigenous populations. Maybe it's different in more homogenous areas of the United States."
Posner has been the most outspoken appellate judge criticizing the decisions of federal immigration judges and he sits on the appellate court most likely to grant asylum pleas -- the Chicago-based 7th Circuit. Posner spoke this past week at a seminar by the Georgetown professors -- Philip Schrag and Andrew Schoenholtz who are compiling the book about how U.S. Courts handle asylum cases.
What they found was utter randomness -- some judges who refuse all asylum requests, others who grant almost all.
"There is a great deal of persecution in the world, but there also are a great deal of people who want to come to the United States -- they'll come here illegally and try to stay here with asylum," Posner said.
Using data they obtained through Freedom of Information requests, Schrag and Schoenholtz charted the progress of asylum cases from the hearing officers who first rule on the cases, to the immigration judges who those rulings can be appealed to, to the Board of Immigration Affairs (BIA) in Virginia to the federal appellate courts that represent the last hope for the refugees.
At the immigration judge stage, they found judges in Atlanta granted only 12 percent of asylum requests, while judges in New York granted 52 percent and judges in San Francisco granted 54 percent. Even within those jurisdictions, the rulings were all over the map, they said. One New York judge granted asylum in six percent of the cases; another New York judge granted asylum in 91 percent of cases.
Asylum-seekers with no attorney won only 16 percent of the time. Those with an attorney won 46 percent of the time.
One statistic that caught the professors by surprise: the 78 female immigration judges granted asylum in 54 percent of cases; while the 169 male judges granted it in 37 percent of cases.
Early on, the Bush administration slashed the number of judges on the Board of Immigration Affairs. It had the effect the administration wanted: The overworked judges began denying without comment a far greater percentage of asylum requests. That boosted the number of cases appealed to the federal appellate courts, prompting an outcry from Posner.
Posner has criticized the lawyers who represent the refugees, the front-line hearing officers, the translators, the immigration judges, the State Dept. documents those judges rely on in making their rulings, and the BIA members who often write no opinions to justify their rulings.
The Chicago district reverses more than 30 percent of the BIA's denials of asylum, compared to the next-highest district, the San Francisco-based 9th Circuit, which reverses about 20 percent of the board's rulings.
Lowering the workload of the judges would help them to take more time on each case and properly consider them, Posner said.
"The 7th Circuit doesn't have one of the heaviest workloads," Posner said, and laughed as he added, "Maybe that's why we reverse so many of the appeals."
Congressional committees have expressed interest in Schrag and Schoenholtz' work and the professors hope the new administration will use it to revamp the asylum process.

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