The Lottery

‘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.

Quality of Justice? Strained
Immigration lawyers, judges, and advocates expressed frustration over a system that they say operates against the intended purpose of the asylum process. Instead of awarding deserving asylum-seekers the protection they need from persecution in their home countries, many immigration judges, they say, violate the process with their personal beliefs, unprofessional temperaments, and intellectual incompetence.

“Comprehending cases requires a lot of attention and work, and some judges are just not as prepared as others,” Sanders says. “There’s a large variation on the quality of justice.”

Extensive interviews with people who work within the immigration courts – current and former immigration judges, immigration lawyers, government attorneys, immigration advocates, legal experts, an interpreter, a law clerk, and an administrative clerk – reveal a system run amok and characterized by many judges who, because of their large caseloads, their backgrounds, and the systemic problems of the immigration courts, tend to deny rather than grant asylum, despite the merits of the case.

Although immigration attorneys acknowledged the existence of fraudulent claims for asylum, they say that a growing number of legitimate cases are denied due to increased caseloads and growing time pressures that tend to yield to judges’ personal predispositions. “A lot of the case rests on credibility, but it’s a very subjective concept,” said Katya Plotnik, a New York immigration lawyer. “Judges have ruled differently on cases with the same facts.”

‘We Need a Divorce’
Former L.A. immigration judge Einhorn, who retired last year after 17 years on the bench, says the current structure leaves the immigration courts vulnerable to political control, despite the semblance of an independent system. Technically, immigration judges are civil service employees who must apply in a transparent hiring process to prevent cronyism or nepotism; in practice, however, attorneys general can and have bypassed the internal vetting process and appointed immigration judges on their own. The Washington Post found that the then-Attorney General Alberto Gonzales had appointed several Bush loyalists to the immigration bench even though they were unqualified. Although the attorney general does not have the right to tell judges how to decide cases, Einhorn says judges still feel the weight of political pressure, particularly since the advent of the George W. Bush administration. “Personally, I still worry that the attorney general, a political appointee, could retaliate for an immigration judge’s jurisprudence after the judge renders his or her decisions,” he says.

Appointed by the first President Bush in 1990, Einhorn, a self-described liberal who had prosecuted Nazi war criminals before becoming an immigration judge, denied 42.6 percent of his asylum cases over a six-year period. He says immigration courts should be independent and lobby for basic resources, such as law clerks. In the four largest immigration courts, the judge to law clerk ratio is about one to four. In other courts, judges have their own law clerk to help with research and writing briefs, which gives judges more time to prepare for cases. “We’re the jack-of-all- trades,” says Einhorn. “We do everything from make life or death decisions, literally, to making Xerox copies, to finding 15 minutes to try to find a tape recorder that works because the one you’re using broke ... . It’s very different work, and it’s unlike any other judicial position. The only solace is that once in a while you know you’ve saved a human life.”

Add to the list a host of other problems – incorrect transcriptions of court proceedings, faulty interpretations, cramped courtrooms – and the need for a system overhaul becomes clear, Einhorn says. “The immigration court has been a sort of stepchild in the Department of Justice, which is remarkable considering the importance of the work it does and the public’s interest in immigration issues,” he says. “We don’t need marriage counseling. We need a divorce.”

FOUR Trials a Day
Legal experts, judges, and attorneys acknowledged that immigration judges have large caseloads and few resources to help them perform the duties of their job in a timely manner. Last year, immigration courts received nearly 55,000 asylum cases, along with thousands of other immigrant-related cases. While complaints about workloads are nothing new among judges, the extent to which many immigration judges feel stretched to their limits reaches new, and sometimes dangerous, levels. As employees of the Department of Justice, not the federal judiciary, immigration judges say they feel pressure from Washington, D.C., to move the docket along to reduce mounting backlog. At the busiest immigration courts, such as the ones in New York and Los Angeles, some judges complete four trials a day when hearing just two could take up the entire session. Despite their efforts to plow through cases, judges still face the grim reality of their looming and growing workload; many must schedule cases more than a year in advance, and an asylum case could take several years to complete. During the waiting period, applicants are not allowed to work. “For asylum-seekers, the process is just too overwhelming,” says S. Peter Gayle, an immigration attorney. “It’s a very lengthy process.”

If an immigration judge denies asylum, the applicant could appeal his or her case to the Board of Immigration Appeals, an internal review body. However, the appeals system has been under fire because it had been writing one-line decisions affirming the immigration judge’s decision without explaining the logic. The swift appeals process was a result of a shrunken board, whose membership decreased to 11 under the current Bush administration from 23 under the Clinton administration. Asylum-seekers could appeal their cases to the federal circuit courts, but many do not have the money to pay for a lawyer to persist, immigration attorneys say. For most asylum-seekers, their one chance to plead their case stops with the immigration judge because the board of appeals and the federal courts base their decision solely on documents provided by the lower courts, not on another trial.

Unlike other judges, immigration judges work within a legal framework that is constantly changing due to fluctuating conditions in the nearly 200 countries that send asylum-seekers to the United States, as well as perennial reforms in U.S. immigration laws. Oftentimes, they are deciding matters of life and death based on information they choose to seek and believe.

“The law is pretty harsh,” says Lisa Reiner-Sotelo, associate director of CUNY School of Law’s Community Legal Resource Network. “Even with a compelling situation, they can’t get protection here.” Young people from El Salvador and Honduras who had applied for asylum because of the threat of extreme gang violence have been denied and instead deported, says Reiner-Sotelo. Consequently, she says, some were killed by gang members upon their return.

In the wake of mounting criticism against specific immigration judges, then-Attorney General Gonzales, in his role as head of the Department of Justice, conducted an investigation of the immigration courts. After finding egregious problems, he proposed implementing 22 reform measures, including annual performance reviews of judges, hiring more judges, and requiring all immigration judges hired after a certain date to pass an immigration law exam. Most of the proposals, set forth in August 2006, including key reforms such as adding a substantial number of new judges, have not taken effect. A Department of Justice spokesperson did not respond to repeated requests via phone and e-mail for an update on the proposed measures.

“I haven’t noticed any changes,” said Kevin R. Johnson, a public interest law professor and associate dean for academic affairs at the University of California at Davis. “It’s more of the same.”

‘Very, Very Fair’
As a young Chinese man sat in a barren New York courtroom, hoping that his claim for asylum would be granted, the judge and the Department of Homeland Security lawyer debated over the conditions of China for its millions of citizens. China is not as bad as we think, the government attorney said. It has fully embraced a capitalist economy, and it is even hosting the next Olympics, he said. It’s really not such a horrible place to live, he insisted.

“I don’t know which China you’re looking at,” the judge said, “but it’s not the one that I see.”

As immigration judges attempt to figure out how to interpret country conditions based on a variety of sources, immigration courts have at times turned into battlegrounds where American foreign policy is litigated for the purpose of granting or denying asylum. And as judges decide the fate of asylum-seekers based on their knowledge and belief of a country’s political, social, and economic state, they are simultaneously influenced by U.S. foreign policies that govern America’s relations with other countries. The result is a muddy confluence of subjective interpretations and personal beliefs.

Applicants from China, who made up the bulk of asylum cases nationwide from fiscal years 2000 to 2005 with more than 35,000 applicants, or 22 percent of the total number, had a nearly 50 percent chance of approval. However, individual judges’ records showed stark contrasts within and among immigration courts. In New York City, where judges heard thousands of asylum cases from China from 2000 to 2005, Judge Margaret McManus rejected only 6.9 percent of the 929 Chinese cases that came before her. She was appointed to the bench in 1991 under George H.W. Bush after working in private practice and at a Legal Aid Society. At the other end of the spectrum, Judge William Jankun, who worked in the same building in downtown Manhattan until his recent retirement, denied 94.5 percent of the 421 Chinese cases that he heard. “I thought, ‘Oh, my God,’” said immigration lawyer Plotnik about Jankun’s leaving the bench. “It was a big relief.” Jankun was appointed under Clinton in 1995 after serving as a lawyer with the former Immigration and Naturalization Service.

In the case of the young Chinese man, the judge, whose denial rate is 34.9 percent, cited the State Department’s description of China’s notorious human rights abuses and the more than one million people in its prisons. The government lawyer, however, pointed out that the United States’ imprisoning two million of its own people was a figure that would alarm people in other countries, even though Americans consider themselves civilized. Oppression, he said, is relative. “For asylum-seekers, the system works very well,” he said, noting that applicants could have legal representation. “It’s a very, very fair system.” He doesn’t mention, however, that all asylum-seekers must find and pay for their own lawyer. Those who appear in court without an attorney have a very slim chance of receiving asylum.

Plotnik, who represents many Chinese asylum-seekers, says Judge Barbara Nelson of New York denied asylum to one of her clients who claimed he would be sterilized if returned to China. His wife had already been forcibly sterilized.

“The decision was not rational,” Plotnik says. “The judge used faulty reasoning. I don’t feel that she likes to grant these cases.” From 2000 to 2005, Nelson denied 79.8 percent of all Chinese applicants, who made up nearly half of her caseload. Comparatively, she rejected 64.6 percent of asylum-seekers who came from Albania, Guinea, Bangladesh, and Mauritania. “Some cases are unwinnable, some cases could go either way, and that really depends on who hears it,” Plotnik says. “Judges will always find a way to justify their decisions.”

When Plotnik appealed Nelson’s decision, the Board of Immigration Appeals, whose members are appointed by the attorney general, affirmed the judge’s denial. After another round of appeals, the U.S. Court of Appeals for the second circuit reversed the decision and granted asylum.

“The gray area is too big,” says a Homeland Security lawyer on the condition of anonymity. “There’s too much discretion allowed, yet there’s no vision of what the U.S. government wants to do with immigrants.”

The Lucky Draw
One of the most pivotal moments for an immigration attorney and his or her client is when they call an 800 number to find out which judge has been assigned to their case. It’s like playing the lottery, a New York immigration lawyer says. With the right judge, they’re almost assured a win. But with the wrong one, the opposite is true. “Ninety percent of the time I already know the decision based on which judge I get,” the lawyer says on the condition of anonymity because he fears retribution from the immigration judges whom he appears before.

In a New York courtroom, a Chinese woman sought asylum, claiming that if she returned to China with her two American-born daughters, she and her husband would be forcibly sterilized. The judge asked for evidence that the Chinese government had sterilized couples that returned with American-born children. He wondered if China’s one-child policy only applied to children born in China. No, she didn’t know anyone who experienced this, but she’s heard of such cases, she told the judge.

Before ending the trial, the judge asked the woman if she had any final words.

“I want my kids to be educated here,” she said through an interpreter as tears rolled down her eyes. Her lawyer reached for a tissue and handed it to her.

The judge, maintaining the same stoic tone, said he would consider everything before making his decision.

The immigration lawyer wasn’t worried, though. “He’s a good one,” he told a reporter.

The judge has one of the lowest denial rates in the country.