Refugee Roulette: Disparities in Asylum Adjudication

Here are links to the current draft of Refugee Roulette: DIsparities in Asylum Adjudication (Ramji-Nogales, Schoenholtz and Schrag, forthcoming in Stanford Law Review) and to the New York Times article about the study:

The study: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983946

The New York Times article: http://www.nytimes.com/2007/05/31/washington/31asylum.html?hp

Georgetown's press release summarizes the research:

              

Professors Uncover Disturbing Disparities in Refugee Adjudications

    For Immediate Release
                    May 31, 2007
                   
              Contact:

 

        Kara Tershel (202) 662-9037

 

Elissa Free (202) 662-9519
             

       

WASHINGTON, D.C. - A refugee’s chance of winning asylum in the United States involves a good deal of luck, with decision-makers in the Department of Homeland Security (DHS) and the Department of Justice (DOJ) varying widely in the rates at which they grant asylum, even when those officials work next to each other in the same office and are deciding large numbers of applications by refugees from the same country.

  This is just one of the startling findings in "Refugee Roulette," a new study by Georgetown Law professors Philip G. Schrag, Andrew I. Schoenholtz and Temple University Beasley School of Law professor Jaya Ramji-Nogales. A draft of the study was posted today on Social Science Research Network. The study will be published in the Stanford Law Review in November.  

The authors titled their study "Refugee Roulette" because the outcome of a case appears to depend to a great extent on the personality, background and prior experience of the adjudicator, rather than the merits of the claim.

  The asylum process                   

Individuals who come to the United States and claim to have a well-founded fear of persecution in their own countries may apply for asylum to the Department of Homeland Security. They are interviewed by one of about 300 asylum officers. When an officer turns down an application from an asylum seeker who has no other valid basis for remaining in the United States, the applicant is put into deportation proceedings before one of about 225 immigration judges of the Department of Justice. There, the applicant may renew the application for asylum.            

Disparities

Within each office, cases are assigned randomly to both the asylum officers and the immigration judges. The researchers found that in many regional DHS asylum offices, and in all of the largest immigration courts, the adjudicators had widely disparate grant rates for essentially matched sets of cases. For example, in one of the eight regional asylum offices (which DHS would identify only as "Region H"), the grant rates of asylum officers who adjudicated substantial numbers of Chinese claims between FY 1999 and 2005 varied between 0% and 68%. In that region, 31 of the 52 officers who decided more than 25 cases of Chinese applicants over the seven-year period had grant rates that deviated by more than 50% from their own office’s regional mean grant rate for Chinese applicants.

  Similarly, the immigration judges in large urban areas had vastly different grant rates for similar cases. The 17 San Francisco immigration judges who decided at least 50 asylum applications from nationals of India between January 2000 and August 2004 varied in their grant rates from 3% to 84%, and the 22 judges in Miami who decided at least 50 Colombian cases during that time period varied in their grant rates in those cases from 5% to 88%.                   

What accounts for the disparities?  The role of the judge’s gender and prior work experience

In an effort to learn what factors accounted for these disparities, the researchers performed computerized cross tabulations correlating biographical information on the immigration judges with their grant rates.                   

They discovered that the gender of the judge appeared to be an important factor in the outcome of a case. Male judges granted asylum in 37.3% of their cases during the four-and-a-half year period of study, but female judges granted asylum at a rate of 53.8% (a 44% higher rate) during the same period.

The prior work history of the judge was also an important factor. For example, on a statistical basis, the asylum grant rate of judges drops lower for each year that the judge worked for the Immigration and Naturalization Service (INS) or DHS before being appointed by the Attorney General to be an immigration judge. Those with no prior INS/DHS experience granted asylum at the rate of 48%. Those who had one to five years of INS/DHS experience had a 44% grant rate. Those with more than 11 years of INS/DHS experience had grant rates of only 31%.                   

Immigration judges who had prior work experience in private practice or non-profit organizations also had significantly higher asylum grant rates than those who did not. In addition, the data showed that asylum seekers represented by counsel were three times more likely to be successful than pro se applicants.                  

Appeals

  The researchers also investigated the appellate levels of asylum adjudication. An applicant who loses in immigration court may appeal to the Board of Immigration Appeals. In 2002, Attorney General John Ashcroft fired five members of the Board who had been appointed during the Clinton administration, claiming that a smaller Board would be more efficient. He also directed the Board to stop writing opinions in most cases. The researchers found that as a result of these changes in structure and procedure, the Board’s rate of deciding cases favorably to asylum applicants plunged dramatically between FY 2002 and FY 2005, from 37% to 11%.                   

The last resort for an unsuccessful asylum applicant is a further appeal to the U.S. Court of Appeals for the region in which the immigration court was located. The researchers found wide variability among the 11 regional U.S. appeals courts. Between January 2004 and December 2005, the 7th Circuit, based in Chicago, remanded 36% of the asylum decisions that it reviewed, forcing reconsideration by the Board of Immigration Appeals or the immigration court. But all of the three U.S. Courts of Appeals in the southern regions, covering states from Texas through Maryland, had remand rates below 5%.

Recommendations                   

The authors recommend several administrative and policy changes to improve the systems of asylum adjudication. Their recommendations include more internal consultation and better training in the asylum offices and courts in which there is great disparity of grant rates; government-appointed counsel for any indigent asylum applicant; requiring the Board of Immigration Appeals to write opinions in every asylum case; and Congressional restructuring of the Board and the Immigration Court as an independent agency to remove it from political influences in the Department of Justice. They also suggest that in view of the role of luck in the outcome of asylum cases, the U.S. Courts of Appeals should be less deferential to decisions of the immigration courts and the Board, and more willing to scrutinize asylum denials that could result in the erroneous deportation of an applicant to his home country, where he may face imprisonment, torture, and death.