The BIA’s decision-making process is among Prof. Schrag’s principal concerns. He told us, “The BIA has moved steadily away from summary affirmances, but they have been replaced mainly by one-judge brief decisions, a conclusory paragraph rather than a few pages, so in many cases they don’t really deal with the losing party’s arguments.”
The “Refugee Roulette” study analyzed 140,000 decisions by immigration judges over four years, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia.
The study found vast differences in the handling of claims with generally comparable factual circumstances. In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a five percent chance from another judge in the same court. It also found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a seven percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.
The study also found wide variations in decisions based on the judge’s gender and by judges in the same location. For example, one male immigration judge currently on the Miami court granted only three percent of the asylum cases he heard -- the second-toughest judge in the nation on asylum issues. A female judge, who hears cases at the Krome North detention center in Miami, granted 59 percent of the asylum claims she considered, placing her in the top 15 percent of judges approving such claims.
According to Prof. Schrag, “It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge.”
This ball is now squarely in the court of Michael Mukasey, our newest AG. We wonder if he’ll defy the third rail and actually get something done.
Watch this space.
1 | 2
