A Culture of "No"

This study from TRAC Immigration, reported in The New York Times, quantifies a phenomenon that many on the inside of the immigration process have known for a while: Our system of legal immigration is biased and flawed. (That's why the American Immigration Lawyers Assoc. has consistently pressed for comprehensive immigration reform.) And it reminds us of the unequal treatment under the law that we apply to immigrants, based on our political agendas.

Here's an example. In the 1980s Cuba bustled with Soviet-backed industriousness. The industries worked, but much of the population suffered under political and social repression. In El Salvador, chaos reigned. An oppressive military dictatorship and its right-wing militias engaged in warfare with rebels that devastated the country, massacred uninvolved civilians, caused a refugee crisis, and disrupted the economy. U.S. immigration policies at that time allowed any Cuban who touched U.S. soil to stay, and our government furnished many with discounted college tuitions and other aid to help the transition to life here. On the Salvadorans who managed to reach our country we slammed the door. Why? Because we were playing politics. The USA supported – in training and weapons – the homicidal Salvadoran dictatorship, while it vehemently opposed Cuba's communist ties. So we welcomed Cubans in order to highlight the negative sides of Fidel's government but rejected those Salvadorans with legitimate asylum claims because it might embarrass the "friendly" government that they fled.

Now, it seems, our politics instruct us to reject legitimate asylum claims in a way that we remain consistent with the fear-peddling that has characterized much of our government's activities since 9/11/01.

According to this study, since the beginning of 2000 we still rejected a vast majority of Salvadoran asylum claims (80 percent), "while fewer than 30 percent of asylum seekers from Afghanistan...were denied." What's special about Afghanistan in that period? Oh, right, we were thinking about deposing their government.

The study claims: "Ten percent of the nation’s immigration judges denied asylum cases in 86 percent or more of their decisions, while another 10 percent of judges denied asylum cases in 34 percent of their rulings during that same time period."

Also, it seems that the Cuba/El Salvador bias continues:

"The study echoes a report released last year by the United States Commission on International Religious Freedom, an agency created by Congress in 1998. The commission study, which examined the processing of asylum cases from 2000 through 2004, found that more than 80 percent of Cubans were given a permanent right to stay in the United States, along with more than 60 percent of Iraqis. By contrast, just more than 10 percent of those from Haiti and fewer than 5 percent from El Salvador were granted asylum."

And I'm going to quote a whole chunk of Ms. Swarns's article because it's so important when considering the problems associated with undocumented immigration and with the behavior of our federal government:

"The handling of asylum cases has become a delicate issue recently as federal appeals judges have assailed what they have described as a pattern of biased and incoherent decisions from immigration judges in asylum cases, which make up the bulk of immigration appeals.

"In September, the federal appeals court in Philadelphia said it had been repeatedly forced to rebuke immigration judges for “intemperate and humiliating remarks.” Citing cases from around the country, the court described “a disturbing pattern” of misconduct in immigration rulings that sent people back to countries where they had said they would face persecution.

"In November, Richard A. Posner, a prominent and relatively conservative federal appeals court judge in Chicago, concluded that the handling of asylum cases by immigration judges had “fallen below the minimum standards of legal justice.”

"Concerned about what he described as 'intemperate or even abusive' conduct by some immigration judges, Attorney General Alberto R. Gonzales called for a comprehensive review of the immigration court system in January."

Read that again. Alberto Gonzales criticized officials for abusive behavior.

An AP article in The Washington Post adds that:

"'The goal of any court system is evenhanded justice,' said Susan Long, a Syracuse University professor and co-director of the clearinghouse. 'The results certainly raise questions about whether that goal is being achieved.'"

It quotes Gideon Aronoff, president of the Hebrew Immigrant Aid Society, as saying that "success in asylum claims is a matter of "luck of the draw.'" That's not how our legal system should work.

This is what happens when we let judicial decisions rest solely in the hands of the politicized executive branch, which, headed by the President, also serves as the prosecutor in these cases -- and do so without legitimate oversight or any real opportunity for appeal. If we unjustly reject those for whom our laws already provide, whose lives are directly in danger if they stay in their home countries, what choice do those for whom we won't even nominally provide have, aside from dodging a system they know won't work?

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Anonymous Mickey J. Ellis said...

Your articles are not for the faint of heart. However, it does continue to be for those of us who are trying to swear off the numbing balm of denial of facts as continually presented to us by the current Administration and the Media.

Not everyone likes to wake up to the bright light of truth, but living in the dishonesty of darkness is an open invitation to oppression.

Much thanks for giving me the choice not to sleep through this particular crisis.

2:18 AM, August 02, 2006  
Anonymous Shaun Wiley said...

I've been paying close attention to this largely because I think it is something for which my discipline could be useful. The question, as I see it, is what accounts for the variation among judges in granting asylum? The article you linked implies that personal history is the deteriminig factor. No doubt this will cover some variance, especially in cases like the extreme outliers they cite. However, assuming it explains everything succumbs to the "fundamental attribution error", our tendency to explain things in terms of personal characteristics rather than features of the culture and the situation. It certainly would not explain why it is that some groups are denied more than others regardless of the individual judge.

Which groups are most likely to have lawyers? Which have the most facility with English, the most experience with formal legal settings? What are sthe stereotypes about immigrant groups from different countries and what are the prototypes of what a "good" asylum seeker should be? A friend of mine did her dissertation on asylum seekers from Bosnia and one of her participants said, tellingly I think, "They didn't grant my asylum because I didn't cry enough." Are their expectations of what a good asylum seeker should be and are these expectations more likely to be fulfilled by some people than others in part because of stereotypes?

Research on social cognition and decision making, which has shed so much light on evaluation in the workplace and courtroom based on race and gender, could be put to good use in understanding these asylum data. Asylum cases is not be the first domain of our just system shown to demonstrate racial bias.

On a different note, I was struck by the irony of the following quote, "The United States grants asylum to people who could be persecuted in their countries because of race, religion, nationality, membership in a particular social group or political opinion." Sad that in (not) granting asylum to people persecuted on the basis of social category memberships, we persecute them for the same reasons.

11:24 AM, August 02, 2006  
Anonymous david goren said...

The following article excerpts accurately portray the immigration
judicial system of "justice" as I as an immigration lawyer experience it. However,the federal court system does not serve as a remedy for correcting injustice. Firstly, federal court petitions for review of Board of Immigration Appeals (BIA) decisions are expensive and not affordable by most asylum seekers. (The filing fee alone is $450.) Secondly, justice is not always served by the various Federal Courts of Appeal. For instance, before the BIA, I represented an asylum seeker whose previous attorney did not present a corroborating witness and documents which the Immigration Court Judge specifically requested in order to grant the asylum request. I obtained the affidavit of the corroborating witness and the requested documents and requested the BIA to remand the case to the Immigration Judge. The BIA and, on petition for review, the Court of Appeals, both refused to remand the case to the Immigration Judge, stating "too late, should have been submitted to the Immigration Judge in the first place". The very evidence requested by the Immigration Judge to grant his asylum application was presented but the BIA and Court ignored the evidence simply because it was not timely submitted!

Jun. 28, 2006

Immigration judges face increased scrutiny
By Marisa Taylor
McClatchy Newspapers

A review by McClatchy Newspapers has found that appeals courts have sent back dozens of rulings by immigration judges over the last two years, calling many of them biased and unjust. In one recent rebuke, an appeals court panel deemed an asylum decision "incomprehensible." Another panel called an immigration ruling "pure supposition."
The appeals courts also have singled out judges for what they've called rude and bullying behavior. One appeals court panel reversed a decision because, it said, the judge acted like a "prosecutor anxious to pick holes" in immigrants' stories instead of an impartial jurist.
The appeals-court judges' unusually sharp tone has prompted calls for an overhaul of the immigration courts, the forum of last resort for many of the world's refugees who flee to the United States from repressive governments that may have tortured and imprisoned them for their beliefs.
The immigration court is a bizarre Frankenstein-like creature," said Chris Carlson, an immigration lawyer in Minneapolis. "When we walk into federal court, it's like a breath of fresh air. We're treated with respect, legal arguments are made and the laws applied."
To make matters worse, immigration judges say they're overwhelmed by a growing crush of cases.
Last year, the more than 200 immigration judges handled roughly 300,000 immigration matters. To keep up, a single judge has to complete 1,400 cases a year, or nearly 27 a week. As a result, some immigrants wait as long as a year to appear before judges.
The judges don't have a computerized system to record their decisions, and often are forced to rule from the bench without extensive preparation or the benefit of transcripts. Unlike federal jurists, they don't have bailiffs or law clerks and are virtually powerless to punish uncooperative lawyers or witnesses.
Forced to cut back on expenses, the judges have gone without personalized training for three years, though immigration requirements are considered as arcane and complex as tax law.
"Given the volume of cases, you walk out of court often stressed out because you don't have enough time or angered because you have been forced to make a decision that you personally don't believe is right," said Joe Vail, a former Houston immigration judge who resigned in 1999 out of frustration.
Judges can become jaded and desensitized by the blur of tragic tales: rape, torture, murder.
"Everybody is saying to you, `My country is a horrible place,'" Vail said. "There are judges who are sitting there day after day hearing those claims, and they get tired and burned out and they stop believing the stories."

NY Times
Published: December 26, 2005

Lory Diana Rosenberg, a former judge on the administrative body within the Justice Department that reviews decisions from immigration judges before they reach the federal appeals courts, said the recent criticisms were warranted.
"They're a brave, honest and proper reaction," Ms. Rosenberg said, "to a pattern of unfettered misuse of authority."
Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."
Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions."
The people who appear before immigration judges often do not speak English, and their cases often turn in part on changing political and social conditions around the world. In a decision in March, Judge Posner wrote that immigration judges' "lack of familiarity with relevant foreign cultures" was "disturbing."
"Immigration law can be life-or-death decisions in terms of whether you're going to send someone back to a place where they may be killed," Judge Slavin said. "I have over 1,000 cases on my docket. Most of us do about four decisions a day. In Texas, on the border, you might get 10 a day."
Judges at the top and bottom of the system blame the administrative body between them, the Board of Immigration Appeals, for the surge in appeals and the mixed quality of the decisions reaching the federal appeals courts. The board is meant to act as a filter, correcting erroneous or intemperate decisions from the immigration judges and providing general guidance. The losing party can appeal the board's decision to the federal courts.
But the board largely stopped reviewing immigration cases in a meaningful way after it was restructured by Mr. Ashcroft in 2002, several judges said.
Mr. Ashcroft reduced the number of judges on the board to 11 from 23. "They just hacked off all the liberals is basically what they did," said Ms. Rosenberg, who served on the board from 1995 to 2002.
Mr. Ashcroft also expanded the number of appeals heard by a single board member and encouraged the use of one-word affirmances in appropriate cases.
The goal of the changes, Mr. Ashcroft said, was streamlining. The board had a backlog of more than 56,000 cases, which fell to 32,000 by September 2004.
At a conference at New York Law School in September, John M. Walker Jr., the chief judge of the United States Court of Appeals for the Second Circuit, in New York, said the changes at the board level served to transfer its backlog to his court and other federal appeals courts.

10:04 AM, August 03, 2006  
Blogger Jeremy Goren said...

I'm glad Mr. Wiley brings his academic/scientific background to this discussion. And I feel validated in his referring to "fundamental attribution error", which I like to refer to as "Abu Grahib syndrome" -- in which we think we've solved the problem by punishing the bad apples but refuse to take on the more daunting task of reforming the circumstances that created them. I think this applies to the question of immigration enforcement-versus-reform, as well. We would rather punish violators rather than reform the systems that create them.

Mr. Wiley brings up one of the most important and volatile elements of our legal system -- the participation of human beings. They bring both the possibility for compassion and the possibility for bias. Sometimes a case might be decided by something as simple as a fight with a spouse before heading to work -- or a preconceived notion of how one must behave in court in order to merit asylum. It disturbs me that people lose their cases not because they do not meet the legal standards of asylum but because they don't fit some sort of -- perhaps unconscious -- preconceived notion. A jerk who qualifies under the law still qualifies.

This leads into one of Mr. Goren's points. Our blindness to the fact that the law should serve justice and not merely itself creates problems like the one Mr. Goren cites. And it reminds me of another case of a Liberian -- who is named in U.S. government documents as under extreme risk of execution for political reasons were he to return to his country. He was denied asylum because he got stuck in traffic on the way to the court and arrived 13 minutes late for his hearing -- after having been puntcual for all other appointments with immigration services. The judge acknowledged he had a very strong case for asylum but denied him on a technicality, essentially signing his death warrant.

Luckily, he could appeal; however, with the bias in the system evidenced by the TRAC study and the failures of the system to grant legitimate venues for appeal, not all are so lucky as to receive their rights.

11:34 AM, August 03, 2006  

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