Politicized Postings Prove Problematic

Asylum seekers have found themselves disproportionately rejected by immigration judges who Bush administration officials illegally vetted for political affiliations during hiring. The New York Times reports on a Justice Department study that examined the denial rates of 16 of the 31 judges whose politics were checked ahead of time and compared them to the denial rates of other judges who had not passed through the illegal political review process. Each of the 16 examined had decided at least 100 cases; nine of them rejected asylum claims at rates significantly higher than their peers; three at lower rates; four remained in line with local averages.

The administration apparently used the posts as rewards for political service. The Times writes:

"Among the judges selected were a member of the 2000 Bush-Cheney Florida recount team, people who worked for Republican lawmakers and a former Republican state official in Illinois backed by Karl Rove, at the time the White House political adviser."

The administration contends that the improper hiring methods don't negate the judges' qualifications. And it seems it will prove difficult, if not impossible, to actually do anything about these judges. The political vetting apparently stopped in 2007, and there may not be a way to remove the judges or a will to reassign them. Their jobs are protected by the very statues that were broken in their hiring.

In fact, one of the judges, Garry Malphrus, has since been appointed to the Board of Immigration Appeals (BIA) -- the body that previously reversed at least one of his asylum denials. (In that case, regarding a Somali woman, he refused to acknowledge the persecutory nature of female genital mutilation even though DHS counsel had agreed to it and the U.S. State Dept. determined that it is practiced on 98 percent of Somali women.) Before that appointment, Malphrus, reports The Times, "denied asylum 66.9 percent of the time, compared with an average denial rate of 58.3 percent among other judges at his court in Arlington, Va. [and is] a former associate director of the White House Domestic Policy Council."

But the problems of justice in the immigration courts extend beyond these hiring improprieties and their ripple effects. TRAC (a data resource project at Syracuse Univ.) previously reported great inconsistencies in asylum approval rates not only from region to region but from judge to judge. Certainly, jurisprudence relies on the subjectivity of the person on the bench, but our legal system is of course required to be standardized enough to ensure equality under it. This doesn't seem to be the case with the immigration courts.

Asylum seekers are not generally the immigrants we discuss during our national debates. Some people who apply for asylum do it with meager if not meritless claims as attempts to gain legal status; but so many of them legitimately meet our standards for political asylum -- based in a fear of persecution in their home countries. Often this persecution could take the form of imprisonment, assault, torture and/or execution of the asylee or his/her family. These are not simply people looking for a better economy to feed their families, send their kids to school or follow the American Dream. Asylees just want to stay alive -- and to exercise the basic rights we in our country hold dear, like the freedom of speech, religion, and political affiliation, without a fear of persecution.

That these 16 particular judges deny asylum more often than their peers makes them only more egregious in a departmental trend of denial. The Times says that 60 percent of asylum claims are denied overall while these 16 judges had an average denial rate of 66.3 percent. Injustice in the immigration courts has been so flagrant in the recent past that even Alberto Gonzalez, then the Attorney General, who since left the post amid a sandstorm of improprieties in politicized hirings, once described some immigration judges whose conduct "can aptly be described as intemperate or even abusive and whose work must improve."

Consider the case of Milton Teahjay who had been appointed to a government post in his native Liberia under the dictator Charles Taylor. When he began to voice opposition to some of Taylor's activities, Teahjay had to flee the country. Newspaper articles in and outside of Liberia and U.S. State Dept. reports substantiated Teahjay's claim that his life would be in severe peril if he returned to Liberia -- explicitly because he had publicly opposed a murderous dictator (whom even the USA didn't like). (There are of course questions as to Teahjay's role in the oppressive government.) This unusually sterling claim for asylum was originally denied by a judge because Teahjay arrived 15 minutes late for a hearing due to traffic on the roads -- though he'd been on time for all of his previous appointments with the immigration service. I don't think it a stretch to say one instance of tardiness should not condemn a man to death.

There has also been a trend of the BIA's rejecting or refusing to rule on appeals without giving substantive reasoning as required by law.

These difficulties in the system should not cause concern among bleeding hearts only. When the system for legal immigration -- particularly for people who face possible imprisonment and/or death in their homelands -- suffers from such deep flaws, surely would-be asylees have a greater propensity to duck the system entirely and join the shadowy masses of the undocumented.

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