The Lottery
Seeking asylum in U.S. immigration courts is all in the luck of the draw
By Mira Jang
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.”
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.