The Lottery
Seeking asylum in U.S. immigration courts is all in the luck of the draw
By Mira Jang
‘APPROACH’
On a recent spring day in Judge Isabel Bronzina’s immigration courtroom in Los Angeles, the cassette tape recorder wouldn’t stop beeping.
“Here we go again,” said Bronzina, looking over to a young woman sitting in front of a computer beside her.
Beep-beep-beep, the recorder screeched.
The judge looked annoyed as she tinkered with the device.
“Oh, the tape is over,” she said, adding that this time it wasn’t the machine’s fault.
After inserting a new cassette tape into the machine, Bronzina continued the afternoon session. Without a stenographer, immigration judges themselves operate clunky, big recorders. Sometimes, this results in interrupting an asylum-seeker who is giving sworn testimony on a highly sensitive topic so the judge can replace the finished tape.
With her elbow on the desk and her hand on her chin to hold up her face, Bronzina rarely looked up from the piles of papers as lawyers and applicants spoke. Even when she addressed them, she did not make eye contact. She looked bored and uninterested, sounding aloof as she spoke in a monotonous tone.
“Approach,” she ordered a government lawyer with her head still buried in documents.
“Yes, your honor,” the lawyer replied.
An Arabic-speaking Egyptian couple appeared before Bronzina, and one of them, through an interpreter, said she had a question.
“Could I change my name to my husband’s?” she asked, her voice just above a whisper.
The judge became impatient. In an unusually animated moment, she turned to the couples’ lawyer.
“I’ll call them whatever they want – butterfly, whatever,” she said. A few people laughed curtly, restrained by the stark atmosphere.
“Why am I talking about this?” the judge asked, and then told the couple to work it out with their attorney.
“You’re paying him a lot of money. Make him work for it,” she said.
After working as a lawyer at the former Immigration and Naturalization Service and as a district attorney, a city attorney, and a staff counsel at a New Mexico legal services agency, Bronzina was appointed to the immigration court by the Clinton administration in 1994.
She’s a fairly typical immigration judge. That is, there is nothing typical about her. Depending on whom asylum-seekers draw as their judge, they may get a rubber stamp on their application – or an almost instant denial. While some judges’ denial rates cluster around the national average of 60.8 percent, many deviate greatly from it despite the random assignment of asylum cases. (Bronzina’s denial rate is 75.5 percent.) Extreme rates and the often predictable outcomes of cases, regardless of the courts’ location or the applicants’ country of origin, have cast serious doubts on whether the asylum process embodies the legal and moral principles of a fair and even-handed judicial system.
“Justice is supposed to be blind, but unfortunately one of the great determining factors is the judge you get,” says Zachary Sanders, a New York immigration lawyer and a member of CUNY School of Law’s Community Legal Resource Network. “As to why that is, that’s a question of the judge’s psychology as much as everything else.”
Refugee Roulette
In their 2007 Stanford Law Review article “Refugee Roulette: Disparities in Asylum Adjudication,” Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag found that an immigration judge’s gender and professional background affected his or her approval rates. Women were more likely to grant asylum while those who had worked for the government, as opposed to in private practice, were more likely to deny asylum. They did not find any links between a judge’s denial rate and his or her political affiliation or the party of the sitting president who appointed them.
In New York, Judge Jeffrey S. Chase was recently removed from the bench when the Second Circuit Court of Appeals found his temperament unsuitable. The New York Times reported that Chase was argumentative, sarcastic, and overly hostile with an asylum-seeker from Bangladesh. Ironically, before becoming an immigration judge, Chase had been an award-winning asylum advocate who taught other lawyers how to win cases. Judge Noel Ferris, also in New York, was taken off a case concerning a Chinese asylum-seeker when she berated the man for crying. Lawyers have called her a rude, mean judge who makes matters difficult and caustic for no reason. Yet both judges had lower-than-average denial rates – 49.4 percent for Chase and 43.7 percent for Ferris.
In Los Angeles, former immigration judge Bruce Einhorn says he saw some of his colleagues, who were also his friends, change in the courtroom. “Putting on the robe affects people differently,” he says. “It’s transforming.” One Los Angeles judge, he says, appeared to be a charming and open-minded man who gave money to environmental groups and took colleagues to restaurants that he had researched. However, once he stepped inside his courtroom, he was a different man. “When he went into court he became Dr. Jekyll,” he says. “He would come into my chambers, and he knew he’d lost it. It wasn’t his reasoning. It was the way he expressed himself, it was the words he used, the way he treated lawyers. When he granted asylum it was like the Fourth of July.”
The judge was placed on administrative leave, and soon thereafter, he resigned.
‘Charade’
A young, blonde Eastern European woman sat between her lawyer and an interpreter. She was seeking asylum on grounds that her home country had jailed her for her political affiliation and activities. She answered her lawyer’s questions, telling a story of fear, humiliation, and physical and sexual assault by police officers. Before she could finish her story, the government lawyer interrupted and said the rest of her testimony was unnecessary. He didn’t want to bother with a cross-examination. The judge, Terry Bain, obliged before granting asylum to the woman, who began to cry and thanked the judge.
Once outside the courtroom, the government attorney was visibly upset, speaking quickly and sighing in between breaths. He was not surprised by the outcome, he told a reporter, given the judge’s record of approving almost every asylum case. In fact, he had predicted it, he says. Bain’s denial rate of 9.6 percent is the lowest in the country. “I have no respect for her,” he said of the judge. “It’s all a charade.” He claimed documents provided as evidence told a different story, one that changed once the woman secured an immigration lawyer. The European woman had overstayed her student visa and wanted to remain in the country for reasons that had nothing to do with fearing persecution, he says. “There’s no respect for the asylum process.”
Bain became an immigration judge in 1994 under the Clinton administration after working in private practice for 13 years, including five years at Barst & Mukamal, a New York-based immigration law firm. The majority of Bain’s asylum-seekers came from China (52.2 percent), followed by Albania (9 percent), Yugoslavia (3.5 percent), Guinea (3.2 percent), and Indonesia (3.1 percent).
While Judge Bain granted asylum to almost every person who sought it in her courtroom, Judge Mahlon Hanson of Miami denied it almost every time. From fiscal years 2001 to 2006, Hanson’s denial rate was 97.7 percent, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Their denial rates topped the highest and the lowest, respectively, among the more than 200 immigration judges throughout the country’s 53 immigration courts.
Among the country’s four largest immigration courts, the denial rates, from fiscal years 2001 to 2006, spanned highs and lows and everywhere in between. In Los Angeles, the denial rate ranged from 86.7 percent to 27.1 percent; in Miami from 97.7 percent to 21.8 percent; and in San Francisco from 86.7 percent to 26.5 percent.
Published: 09/17/2008
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Comments
it's a prime example of a broken system much like the current financial market. it needs a complete overhaul
here we see again how the justice system does not work for the powerless. the immigration court judges have too much power over an individual and the entire system is not administered with enough supervision. when the individual cannot speak english or is not aware of his full rights, the possibility of misuse of power is even greater.
i learned a lot from this article especially with the factual numbers. it is a serious issue that affects all of us...
This is an article that really touches my heart because I am an immigrant myself. For most people to even get to a point where they stand in front of a judge is a significant uphill battle and a monumental accomplishment. However for these incompetent and prejudice judges to belittle the process is simply despicable and un-American.
How jaded do you have to be to take freedom for granted, especially of others.
I was not aware of the depth of these problems but this article clearly illustrates injustice in this country.
Why are the judges never judged as if they are immune from the very system they preach?
This article clearly identifies a problem involving the basis on which this country was founded. Often we forget that we're a country of immigrants.
I'd like to read a follow up piece from this author when the new administration is in place.
kudos on a well written informative piece.
It is unfortunate that those who are most disadvantaged are subject to such rampant unfairness.