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