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Article Excerpt
INDEX OF FIGURES AND TABLES
INTRODUCTION I. THE ASYLUM PROCESS A. The Regional Asylum Offices B. The Immigration Courts C. The Board of Immigration Appeals D. The United States Courts of Appeals E. The Supreme Court II. THE REGIONAL ASYLUM OFFICES A. Grant Rate Disparities for Asylee Producing Countries Among Individual Asylum Officers B. Grant Rate Disparities for Single Countries Among Individual Asylum Officers III. THE IMMIGRATION COURTS A. Disparities Between Courts B. Disparities Within Immigration Courts C. Disparities from the Court Mean D. Disparities from the Court Mean, Holding Nationality Constant E. Variables Impacting Judges' Decisions IV. THE BOARD OF IMMIGRATION APPEALS A. Background B. Data Request and the Limitations of Board Reeordkeeping C. Findings V. THE UNITED STATES COURTS OF APPEALS VI. KEY FINDINGS A. Disparities Within Particular Asylum Offices, Immigration Courts, and Federal Appeals Courts B. Disparities from Region to Region C. Possible Causes of Disparities Among Immigration Judges D. The Erosion of Appellate Review by the Board of Immigration Appeals VII. POLICY IMPLICATIONS METHODOLOGICAL APPENDIX I. Benchmarks for Counting and Comparing the Number of Outlying Adjudicators II. The Asylum Office III. The Immigration Courts A. Grant Rate Data Analysis B. Cross-Tabulation Analysis IV. The Board of Immigration Appeals V. The United States Courts of Appeals NINTH CIRCUIT APPENDIX INDEX OF FIGURES AND TABLES Figure 1. The Affirmative Asylum Process Figure 2. Individual Asylum Officer Grant Rates for APC Cases--Regions A & Figure 3. Individual Officers' Deviations from the Regional Office Mean Grant Rate in APC Cases--Region D Figure 4. Individual Officers' Deviations from the Regional Office Mean Grant Rate for APC Cases--Region A Figure 5. Individual Officers' Deviations from the Regional Office Mean Grant Rate in APC Cases--Region H Table 1. Grant and Deviation Rates for All Regional Offices Figure 6. Individual Officer Grant Rates in Chinese Cases--All Regions Figure 7. Individual Officer Grant Rates in Chinese Cases--Region C Figure 8. Individual Officers' Deviations from Regional Mean in Chinese Cases Region C Figure 9. Individual Officer Grant Rates in Chinese Cases--Region E Figure 10. Individual Officers' Deviations from Regional Office Mean in Chinese Cases--Region E Figure 11. Individual Officer Grant Rates in Chinese Cases--Region H Figure 12. Individual Officers' Deviations from Regional Office Mean in Chinese Cases--Region H Figure 13. Mean Grant Rates in Chinese Cases By Region Figure 14. Percentage of Officers Who Are Outliers in Chinese Cases by Region Figure 15. Individual Officer Grant Rates in Ethiopian Cases--Region D Figure 16. Individual Officers' Deviations from Regional Office Mean in Ethiopian Cases--Region D Figure 17. Individual Officer Grant Rates in Indian Cases--Region C Figure 18. Individual Officers' Deviations from Regional Office Mean in Indian Cases--Region C Figure 19. High, Low, and Average Grant Rates for Nationals of APCs in High-Volume Immigration Courts Figure 20. Average Grant Rates for All APCs in High-Volume Immigration Courts Figure 21. Percent of Judges Deviating over 50% from National APC Mean Figure 22. Grant Rates for Judges Who Are Outliers in APC Cases--New York (9 of 31 judges) Figure 23. Grant Rates for Judges Who Are Outliers in APC Cases--Los Angeles (7 of 22 judges) Figure 24. Grant Rates for Judges Who Are Outliers in APC Cases--Miami (8 of 24 judges) Figure 25. Judges' Grant Rates in Albanian Cases--New York Figure 26. Judges' Grant Rates in Indian Cases--San Francisco Figure 27. Judges' Grant Rates in Chinese Cases--Los Angeles Figure 28. Judges' Grant Rates in Colombian Cases--Miami Figure 29. Relationship Between Representation and Grant Rates Figure 30. Relationship Between Asylee's Dependents and Grant Rates Figure 31. Relationship Between Judge's Gender and Grant Rates Figure 32. Judges' INS/DHS Experience by Gender Figure 33. Grant Rates by Different Types of Prior Work Experience Figure 34. Grant Rates by Judges' INS/DHS Experience Figure 35. Grant Rates by Gender and Work Experience Figure 36. Grant Rates by Gender, Representation, and DHS/INS Work Experience Figure 37. All Immigration Cases Appealed from BIA to Courts of Appeals Figure 38. Grant and Remand Rates in Panel Asylum Decisions (FYs 1998-2000, 2003-2005) Figure 39. Number of Decisions by Year and Type (FYs 1998-2000, 2003-2005) Figure 40. Number of Decisions Issued by Panels and Single Members Figure 41. Remand Rates in Asylum Cases Figure 42. Asylum Grant and Remand Rates Figure 43. Asylum Grant and Remand Rates, Including Representation Figure 44. Asylum Grant and Remand Rates for Applicants from APCs Figure 45. Asylum Grant and Remand Rates by APC (FYs 2001-2002) Table 2. Asylum and Related Appellate Decisions by Circuit (Calendar Years 2004 and 2005) Figure 46. Remand Rates in Asylum and Related Cases, 2004-05, by Circuit Figure 47. Asylum Remand Rates (Calendar 2005) and Civil Reversal Rates (FY 2005) Compared Figure 48. Percentage of APC Cases Remanded, 2004-2005, by Circuit Table 3. Remand Rates for Asylum and Related Cases by Nationals of China (2003-2005) Figure 49. Remand Rates of Third Circuit Judges, 2004-2005 Figure 50. Third Circuit Judges' Deviation from Circuit Mean Figure 51. Third Circuit Remand Vote Rates by Party of Appointing President. Figure 52. Remand Rates of Sixth Circuit Judges, 2004-2005 Figure 53. Sixth Circuit Judges' Deviation from Circuit Mean Figure 54. Sixth Circuit Remand Vote Rates by Party of Appointing President Figure 55. Rate of Votes of Ninth Circuit Judges Favorable to Asylum Applicants, by Judge Figure 56. Disparities in Ninth Circuit Voting Figure 57. Grant Rates by Party of Appointing President Figure 58. Disparities by Party
INTRODUCTION
We Americans love the idea of "equal justice under law," the words inscribed above the main entrance to the Supreme Court building. We want like cases to come out alike. We publish tens of thousands of judicial decisions and have enshrined the concept of stare decisis in order to reduce the likelihood that Jane's case, adjudicated in December 2006, will come out very differently from Joe's very similar case adjudicated in January 2007. We have adopted sentencing guidelines in the hope that the punishment meted out to offenders depends on their offenses and prior records rather than on the whims, personalities, or ideologies of the sentencing judges. We use pattern jury instructions in both civil and criminal cases to guide lay adjudicators to apply the same law to similar disputes. When civil juries depart significantly from established norms, judges use remittitur to reduce awards, enter judgments that are at odds with the jury's verdict, or grant new trials.
Americans don't love consistent decision making merely because we think that fairness to the parties requires that similar cases should have similar outcomes. We also like the predictability that stare decisis offers. Most disputes can be settled without all-out litigation when the results of formal adjudication can be predicted in advance with reasonable certainty. In addition, and perhaps most pertinent, we don't like the idea that litigants' lives, liberty, or property could be determined by the predilections or personal preferences of the individual men and women who happen to judge their cases. The very essence of the rule of law, embodied in the Due Process Clause of the Fifth Amendment, is that individual cases should be disposed of by reference to standardized norms rather than by arbitrary factors, particularly the personal biases, attitudes, policies, or ideologies of government adjudicators.
In recent years, however, the public and the press have become skeptical about the extent to which American judging reflects only the law and not the predilections of the adjudicators. Judges (and entire courts) are commonly referred to in the press as liberal or conservative, and many lawyers believe that although they cannot predict the outcome of a trial-level case on the day before it is filed, or the outcome of an appeal on the day before it is docketed, they can do so once they know what judge or judges have been assigned to decide it. In response to this public skepticism, Chief Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit wrote a noteworthy law review article defending the notion that "it is the law--and not the personal politics of individual judges--that controls judicial decision making." (1) His article spawned a series of rebuttals and counter-rebuttals. Professor Richard Revesz conducted a careful empirical study of decisions by the judges of Edwards' court in challenges to rules of the Environmental Protection Agency (EPA). He concluded that the political composition of three-judge panels often mattered a great deal. (2)
Judge Edwards wrote a surprisingly harsh critique of the Revesz "so-called 'empirical stud[y],'" claiming that its interpretations were "bogus." (3) Revesz then rebutted this critique, (4) and Edwards published a further article rejecting the "neo-realist arguments of scholars who claim that the personal ideologies [rather than law and collegiality] ... are crucial determinants" of outcomes. (5)
Much of the Edward-Revesz debate concerned relatively small differences in the voting patterns of the various judges. For example, in two of six periods of time reported, Democratic judges voted 44% of the time to sustain environmentalists' challenges to EPA rules, while Republican judges did so only 42% of the time (a 5% disparity). In another period, the Democratic to Republican ratio was 47% to 33%. In the other periods, Republican judges were more prone to sustain such challenges than Democratic judges. In some periods, a Democratic judge was perhaps 50% more likely to vote for an environmentalist challenge than a Republican judge, a difference that should perhaps be disturbing if we expect judges to leave their political leanings behind when they take the bench. The differences were somewhat more dramatic in the case of industry challenges to the EPA. Republican judges voted nearly twice as often as Democratic judges to sustain those challenges. (6) In other words, a judge might be nearly 100% more likely to vote for an industry-requested remand if the judge were Republican rather than Democratic, statistics that may again suggest cause for concern. Those percentages are far larger than the approximate 17% disparity (about 5 months) in the lengths of sentences meted out by federal judges in 1986-1987 before federal sentencing guidelines took effect, a disparity thought so great as to warrant a federal statute imposing those guidelines. (7)
But how about a situation in which one judge is 1820% more likely to grant an application for important relief than another judge in the same courthouse? (8) Or where one U.S. Court of Appeals is 1148% more likely to rule in favor of a petitioner than another U.S. Court of Appeals considering similar cases? (9)
Welcome to the world of asylum law.
Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of U.S. courts of appeals render about 79,000 asylum decisions annually. (10) Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country. Given our national desire for equal treatment in adjudication, one would expect to find in this system for the mass production of justice many indicators demonstrating a strong degree of uniformity of decision making over place and time. Yet in the very large volume of adjudications involving foreign nationals' applications for protection from persecution and torture in their home countries, we see a great deal of statistical variation in the outcomes pronounced by decision makers. The statistics that we have collected and analyzed in this Article suggest that in the world of asylum adjudication, there is remarkable variation in decision making from one official to the next, from one office to the next, from one region to the next, from one Court of Appeals to the next, and from one year to the next, even during periods when there has been no intervening change in the law. The variation is particularly striking when one controls for both the nationality and current area of residence of applicants and examines the asylum grant rates of the different asylum officers who work in the same regional building, or immigration judges who sit in adjacent courtrooms of the same immigration court. When an asylum seeker stands before an official or court who will decide whether she will be deported or may remain in the United States, the result may be determined as much or more by who that official is, or where the court is located, as it is by the facts and law of the case. The fact that the outcome of a case appears to be strongly influenced by the identity or attitude of the officer or judge to whom it is assigned is particularly discomfiting in asylum cases, because when a bona fide application is erroneously denied, the applicant is almost always ordered deported to a nation in which she will be in grave danger. (11)
We cannot prove that the variations in outcomes based on the locations or personalities of the adjudicators are greater in asylum cases than in criminal, civil, or other administrative adjudications. Only a few scholars, such as Revesz, have attempted to analyze similarities or differences in adjudication in a large database of cases that involve particular subject matters and were governed by a single body of law. (12) In this Article, however, we report and analyze new statistical data that suggest to us that very significant differences from one decision maker to the next in the adjudication of asylum cases should be a matter of serious concern to federal policymakers. (13) The new statistics show disconcerting variability among individual adjudicators in the institutions for which adequate data are available for analysis.
In Part I of this Article, we describe the systems through which asylum cases are adjudicated and the four institutions that decide them: the asylum offices, the immigration courts, the Board of Immigration Appeals, and the United States courts of appeals. Readers familiar with the institutions that process asylum applications and with the procedures they follow may choose to skip Part I of this Article and begin with Part II.
In Part II of the Article, we look at the first stage of decision making: adjudications by asylum officers. The Department of Homeland Security provided us with grant rate data for each of the 928 asylum officers who served during fiscal years 1999-2005. (14) For decisions on cases of applicants from eleven key countries that generate many valid asylum claims, the Department also provided individual grant rates by nationality of the applicant. From these data, we measured changes in the rate at which asylum was granted by the Department from region to region (holding constant the group of countries of greatest interest and, in some cases, limiting our study to a particular country), and variations from officer to officer within each of the Department's eight regional asylum offices (again controlling for countries of the applicants). The results of this analysis are reported in Part II.
Part III examines statistics in asylum cases decided by 247 immigration judges from fiscal years 2000-2004. We investigated disparities in grant rates between different immigration courts, but more important, we examined disparities in the grant rates of different judges within the largest courts. We were also able to correlate the grant rates of individual judges with biographical information about those judges and with additional information about the cases. Certain correlations surprised us and raise serious questions about whether the results of cases are excessively influenced by personal characteristics of the judges, such as their prior government service. The results of our examinations are reported in Part III.
We would have liked to include an analysis of how individual members of the Board of Immigration Appeals resolve cases assigned to them, but the Department of Justice does not keep statistics on the dispositions of appeals by individual members of the Board, (15) and it does not make public the vast majority of its asylum decisions. (16) We were able to examine variations from year to year in the Board's treatment of asylum appeals. Our study included the period just before, during, and after FY 2002, when the Board was in great turmoil due to substantial personnel and procedural changes. (17) Although we could not compare individual Board members' grant rates because the Board lacks the relevant data, we were able to measure the effect of these changes on its overall rate of decisions favorable to asylum applicants. Part IV of the Article describes and analyzes the data that the Board was able to provide to us.
Part V investigates variations in the treatment of asylum cases in the U.S. courts of appeals from one circuit to another. We examined the rate at which asylum denials by the Board of Immigration Appeals were remanded by courts in all of the circuits. We were able to compare these rates both for all cases and for cases from a group of fifteen countries that generate a particularly large number and high percentage of successful asylum cases. We were also able to compare the rates at which individual judges in two circuits voted to remand cases.
In Parts VI and VII, we summarize and comment on our findings and suggest several steps that might be taken to advance the degree to which the outcomes in asylum cases could become somewhat more uniform. We also recommend other reforms to improve the asylum adjudication process.
Human judgment can never be eliminated from any system of justice. But we believe that the outcome of a refugee's quest for safety in America should be influenced more by law and less by a spin of the wheel of fate that assigns her case to a particular government official. (18)
I. THE ASYLUM PROCESS
As part of its commitment to human rights, the United States offers asylum to foreign nationals who flee to its shores and can prove that they are "refugees"--that is, that they have a well-founded fear of persecution in their own countries, and that their race, religion, nationality, political opinion, or membership in a particular social group is at least one central reason for the threatened persecution. (19) A foreign national who seeks asylum in the United States may do so either affirmatively or defensively. An affirmative applicant seeks asylum on her own initiative, and voluntarily identifies herself to the Department of Homeland Security (DHS) through her application. An affirmative applicant may be either an individual who maintains a valid nonimmigrant visa (e.g., a tourist or student) or a person who either overstayed her visa or entered the United States without being formally processed by an immigration official. A defensive applicant applies for asylum after having been apprehended by DHS and placed in removal proceedings in immigration court, a part of the Department of Justice (DOJ). (20) A successful applicant is granted asylum and is not ordered removed.
The Department of Homeland Security (DHS) is the executive agency primarily responsible for overseeing immigration processes, including affirmative asylum applications. The Department's Office of Citizenship and Immigration Services (USCIS) houses the asylum corps, comprised of asylum officers who evaluate asylum applications and interview the applicants. The Department's Bureau of Immigration and Customs Enforcement includes the trial attorneys who oppose asylum claims before the immigration courts.
Asylum decisions, whether by asylum officers or immigration judges, involve both a judgment about whether the applicant's story, if true, would render the applicant eligible for asylum under American law and an assessment as to whether the applicant is telling the truth about his or her personal experiences of actual or threatened persecution. Among similar cases, we would expect some, but relatively little, variation from one experienced adjudicator to another in relationship to the legal assessment of a truthful applicant's legal eligibility. Assessments of credibility are more difficult and subjective, so we might expect somewhat greater variability from one adjudicator to another with respect to this component of the decision. Nevertheless, a system that endeavors to prevent arbitrary adjudication should attempt to keep even this aspect of variability within a relatively narrow range.
It is a difficult task indeed that the adjudicators face, as it is not only important to grant genuine claims but also to deny false claims. Successful false asylum claims undermine the integrity of the asylum system and reduce public support for the admission of genuine refugees.
A. The Regional Asylum Offices
Several weeks after filing a written application for asylum, an affirmative asylum seeker is interviewed by a trained asylum officer in one of the eight regional USCIS asylum offices. Within each regional office, cases are assigned randomly to particular asylum officers. (21) The interview is nonadversarial, with the asylum officer in an inquisitorial role. There is no separate representative for the government, and asylum seekers may be represented by counsel at their own expense. The asylum officer can grant asylum, refer the asylum claim to immigration court, or, if the asylum seeker has valid immigration status in the United States, deny the asylum claim. (22) About 35% of adjudicated cases in most recent years are grants of asylum. Most asylum officer decisions, however, result in referrals to immigration court.
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The Asylum Office keeps separate statistics on three different types of referrals, though all three result in removal hearings in immigration court. First, referrals without interviews occur when an asylum applicant does not appear for a scheduled interview. Because there is no interview or adjudication on the merits in these cases, we have excluded them entirely from our study. Second, regular referrals occur when the asylum officer either (1) does not believe that the applicant has carried her burden of proving facts showing that she meets the statutory definition of a refugee, or (2) accepts the proffered facts as true but does not believe that those facts qualify the applicant for asylum as a matter of law. The third type of referral, called a "rejection" for purposes of statistical record-keeping, occurs when the asylum officer does not believe that the applicant applied for asylum within one year after last entering the United States, a deadline imposed by Congress in 1996, effective April 1, 1998. (23) An applicant who filed more than a year after entering the United States may be granted asylum if she can prove the existence of "changed circumstances" or "extraordinary circumstances" justifying late filing. (24) If she is not able to prove entry less than a year before application, or if she is not able to show the existence of a qualifying excuse, she is "rejected" and referred to an immigration court hearing.
Decisions by asylum officers are reviewed by a supervisory asylum officer within the regional office before being released to the asylum applicant approximately two weeks after the interview takes place. In rare cases (e.g., if the case presents a novel issue of law as to which neither the Department of Homeland Security nor the Attorney General has made a policy decision), the case may be referred to DHS national headquarters before a decision is rendered.
B. The Immigration Courts
When an asylum officer refers a case to immigration court, the Asylum Office serves the asylum applicant with a "Notice to Appear" in that court on a specific date. (25) The notice to appear is the equivalent of a summons in a civil case, and with service of this notice, the asylum applicant becomes a "respondent."
In most cases, the respondent has no basis for denying the government's charge of being present in the United States without authorization, so the bulk of the court proceeding, which can last for several hours, is devoted to a de novo hearing on her evidence of eligibility for asylum. If for some reason the respondent does not qualify for asylum (e.g., she missed the application deadline), she may be eligible for withholding of removal (26) or protection under the Convention Against Torture. (27) The benefits awarded with those types of relief are far more limited. For example, an asylee may obtain asylum for her dependent spouse and minor children in the United States, or, if they are abroad, she may later bring those dependents to the United States as derivative beneficiaries of her asylum claim. After a year, asylees may apply to become permanent residents, and, after five years, to become American citizens. However, grants of withholding of removal or protection under the Convention Against Torture do not lead to permanent residence or citizenship, and do not provide derivative protection for dependents. (28)
The immigration court also hears defensive asylum cases. A defensive case is one that is presented by an applicant without valid immigration status who was apprehended by DHS before the individual filed an asylum application. Such an individual does not have an opportunity to present their claim to an asylum officer, and may file their asylum application only in immigration court. Defensive applicants are usually detained (jailed) by DHS after apprehension. A small number are released on bond (or on their own recognizance) before their immigration court hearings, while most remain detained through their hearings and any subsequent appeal.
In both affirmative cases that were referred by an asylum officer and in defensive cases, immigration court hearings are adversarial proceedings. A DHS attorney is assigned to cross-examine the asylum applicant and usually argues before the immigration judge that asylum is not warranted. Asylum seekers may be represented at their own expense, but indigent applicants are not provided with legal counsel even though nearly all unsuccessful applicants are ordered deported.
C. The Board of Immigration Appeals
An applicant who is denied asylum by an immigration judge may appeal to the Board of Immigration Appeals, another institutional component of the Department of Justice. Today the Board consists of eleven to fifteen members appointed by the Attorney General of the United States. The Board was created by a directive of the Attorney General, rather than by statute, and its members serve at the pleasure of the Attorney General, exercising his delegated authority. (29)
D. The United States Courts of Appeals
An asylum applicant (and anyone else whose order of removal is sustained) may seek review of an adverse Board decision in a U.S. Court of Appeals. (30) The circuit courts may remand a case in which the Board rendered a decision contrary to the law or abused its discretion, but the courts grant a great deal of deference to the Board. (31) Except in rare instances, the courts of appeals can only remand a decision to the Board; they cannot grant asylum. (32)
E. The Supreme Court
In principle, a foreign national who has been ordered removed and whose removal has been sustained by a Court of Appeals could seek certiorari in the U.S. Supreme Court. However, as a practical matter, the Court of Appeals is the last stop; the Supreme Court has accepted review in only a handful of asylum cases since the Refugee Act authorized asylum in 1980.
II. THE REGIONAL ASYLUM OFFICES
The Asylum Office, part of the Department of Homeland Security, makes decisions in the first instance when asylum seekers come forward on their own to assert claims. Asylum seekers file such claims knowing that they will be placed into removal proceedings if they are not successful and have no lawful immigration status in the United States. These "affirmative" claims, assessed at eight regional asylum offices, constitute the vast majority of first-instance asylum cases. (33)
With respect to training and quality control, every new asylum officer completes an intensive five-week basic training course with testing. (34) Each week, every regional office conducts four hours of training on new legal issues, country conditions, procedures, and other relevant matters. A supervisory asylum officer reviews every decision proposed by an asylum officer. Supervisory asylum officers must complete an intensive two-week training course on substantive law with testing. At least one quality assurance or training officer in each regional office regularly reviews supervisory sign-offs on cases in order to report to the Regional Office Director on possible inconsistencies in the application of the law and to identify training needs.
To support these regional officers, the Asylum Office headquarters maintains staff dedicated to quality assurance, training, and country-conditions research to provide support to the field. Every month, quality assurance/training officers in each regional office hold a conference call with headquarters office quality-assurance staff and country condition researchers to address common issues or concerns, new cases, emerging patterns of claims, and training ideas. The quality assurance team reviews cases involving novel or complex legal issues. This team also closely monitors the implementation of new laws. For example, in implementing the one-year filing deadline, this staff reviewed all referrals based on the deadline to ensure consistent application of the new law. In addition to asylum quality-assurance staff, each regional office has fraud prevention coordinators and immigration officers with the Fraud Detection and National Security Division of USCIS, whose responsibilities include identification of fraud indicators, provision of training, and assistance to asylum officers and supervisory asylum officers. (35)
Nationals from well over one hundred countries applied for asylum in recent years. (36) Asylum officers have different nationality caseloads in the eight regions since applicants from various countries are concentrated to different degrees in certain regions. In order to account for nationality differences in caseloads, we based comparisons of grant rates only on cases of nationals from countries that we call Asylee Producing Countries (APCs). The countries on this list had at least five hundred asylum claims before the asylum offices or immigration courts in FY 2004, and a national grant rate of at least 30% before either the asylum office or the immigration court. The minimum claim criterion ensures that the database includes a significant number of applicants and grantees. The minimum grant rate requirement ensures that asylum officers or immigration judges have reached a reasonable degree of consensus in concluding that many applicants from these countries are bona fide refugees.
Fifteen countries met these criteria: Albania, Armenia, Cameroon, China, Colombia, Ethiopia, Guinea, Haiti, India, Liberia, Mauritania, Pakistan, Russia, Togo, and Venezuela. Countries with low grant rates, such as El Salvador and Guatemala, are not on our APC list. We also excluded Mexicans from our database since the vast majority entered the affirmative asylum system for purposes other than to obtain asylum. (37) We first examined the data from eleven countries (38) where there were enough data on individual asylum officers to compare certain nationalities fairly.
The Asylum Office provided us with data on decision making by 928 asylum officers from all eight regional offices over a period of seven years, from 1999-2005. (39) For security and privacy reasons, the Asylum Office provided these data without identifying either the individual officers or the regional office by name. Rather, each officer was assigned a number, and each regional office a letter (Regions A through H). We studied the grant rates only of the 884 officers who decided at least fifty APC cases.
We also established a standard to measure disparities among individual adjudicators in the same office. For this Article, we created a very tolerant standard of consistency, regarding an adjudicator as deviating significantly only if her grant rate for the population in question was higher or lower by more than 50% than the overall grant rate for the same population in the decision maker's own regional asylum office. (40) Some might argue that this measure tolerates too much deviation within an office, but even using this benchmark, there is a great deal of disparity in asylum adjudication.
A. Grant Rate Disparities for Asylee Producing Countries Among Individual Asylum Officers
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Figure 2, like many of the bar graphs in this Article, shows the spread of grant rates among adjudicators in a particular office. Each bar represents a different adjudicator's grant rate. Bar graphs like these are a way of viewing the degree of consistency within an office: the flatter the slope of a line connecting the tops of the bars, the more consistent the decision making within the office. Figure 2 shows the grant rates of individual officers in APC cases in two asylum office regions.
In principle, since clerks in the asylum offices assign cases to asylum officers randomly, (41) the graphs of grant rates for asylum officers deciding similar cases within a particular regional office should be quite fiat. Indeed the graph for Region A is relatively fiat. Most of the officers grant asylum to nationals of APC countries at a rate of between 25% and 50%. But Region H shows a much steeper slope and therefore much less consistency among its asylum officers.
We thought it would be useful to compare these individual officers' APC grant rates either to the mean regional office or national APC grant rate. Since there are significant differences in the mix of countries of origin of those making APC claims in the various regional offices, we concluded that comparing individual grant rates to the mean national APC grant rate would not take that variation in composition into account. We therefore used regional mean grant rates for comparison purposes.
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Figure 3 and the other deviation graphs in this Article display the degree to which each officer deviated from the mean APC grant rate for the region in question. Figure 3 shows exceptional consistency in Region D as measured by this standard. Only one of sixty-four officers deviated from the Region D mean by more than 50%.
Similarly, in Region A shown in Figure 4, only two of thirty-one officers deviated by more than 50% from the regional office mean APC grant rate.
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But not all regional offices show that extraordinary degree of consistency. In Region H, more than half of the officers deviated by more than 50% (Figure 5). In fact, five officers deviated as much as 130-190%.
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When we compare the grant and deviation rates for all of the asylum offices, we see significant variation. As Table 1 shows, the regional deviation rates vary tremendously--from 2% to 5 I%. Interestingly, these disparities do not depend exclusively on the grant rate. For example, Regions A and G have similar APC grant rates--35% and 38%, respectively. Yet the percentage of officers who deviate from their respective asylum office is six times greater in Region G (35% deviation rate) than in Region A (6% deviation rate).
B. Grant Rate Disparities for Single Countries Among Individual Asylum Officers
By definition, all APC countries have a high rate of successful asylum applicants. Nevertheless, the particular mix of countries of origin in the pool of cases adjudicated in a particular region may affect that region's grant rate, which could explain at least some of the disparity between offices with respect to APC grant rates that we see in Table 1. (42) We therefore decided to look at whether regional office grant rates continued to vary when we narrowed our focus to applicants from a single country.
Our first analysis examines cases from China. Figure 6 shows the grant rates of 290 asylum officers nationwide who decided at least 100 Chinese cases from FY 1999-2005. This graph shows that asylum officers nationally have not reached any consensus regarding Chinese cases. The disparities are striking, from a low grant rate of 0% to a high of more than 90% and almost every possibility in between.
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We also examined asylum officers' grant rates in Chinese cases by region. To ensure sufficient data within each region, however, we had to reduce to 25 the minimum number of cases decided by an officer before that officer would be included in our study. Some regions show high consistency among asylum officers deciding Chinese cases. In Region C, for example, grant rates were pretty consistent (Figure 7).
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As Figure 8 shows, only three of forty-two officers deviated from the Region C China mean by more than 50%.
However, in Region E, there is considerably less consistency (Figure 9). As Figure 10 shows, seventeen of fifty-seven asylum officers, or about 30%, deviated from the regional China mean by more than 50%. This graph also shows extreme rates of deviation from the mean, with several officers deviating 100% or more and one officer over 250% deviant.
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Some regions are even less consistent than this, despite the fact that the officers are deciding essentially the same pool of cases. In Region H, the grant rates vary between 0% and 68% (Figure 11). In this region, thirty-one of fifty-two officers, or 60%, who decided more than twenty-five China cases deviated from the regional China mean by more than 50% (see Figure 12). Two officers granted asylum in none of their cases. One of them (Officer 343) decided 273 Chinese cases, but did not grant a single asylum claim.
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Figure 13 provides the same information broken down into mean grant rates by regional office. The range is very significant: while Region H grants at a 15% rate, Region C grants asylum to people from the same country at a 72% rate. What could account for this? It is possible that migrants from certain regions within China (or traffickers who assist them) choose to go to particular regions of the United States before applying for asylum, and that fraud is more prevalent among migrants from some of those regions than among migrants from other regions. Perhaps, therefore, migration patterns cause Region H to receive a much higher proportion than Region C of Chinese applicants who have false claims for asylum. While in principle these migration patterns could explain some degree of disparity among the U.S. regional asylum offices, we doubt that it could account for a five-fold difference in grant rates from one office to another. Furthermore, there are significant differences in mean grant rates from region to region even when we examine the rates for applicants from countries much smaller than China. For example, the regional mean grant rates for Armenian claims in Regions C, F, and G were, respectively, 57%, 37%, and 23%. (43) In addition, it could not possibly explain the differences in grant rates from officer to officer within regional asylum offices.
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Figure 14 compares the degree of deviation from the regional mean China grant rate in the six regional offices that had many asylum officers who decided twenty-five or more China cases. The deviation rate is extraordinary, varying from about 7% in Region C to about 60% in Region H.
The last graphs in this Part examine the degree of consistency within a regional office with respect to single countries other than China. Region D decides many Ethiopian cases, and Figures 15 and 16 show that it does so with a good deal of consistency.
Figure 15 shows that many asylum officers in this region seem to grant at similar rates in these cases.
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In fact, no officer deviates from the mean by more than 50% (Figure 16).
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By contrast, in Region C, the grant rates for Indian cases range considerably, from 3% to 88% (Figure 17). In Region C, fifteen of thirty-nine officers deviate from the mean Indian grant rate by more than 50% (Figure 18). We find this of particular interest because only one in eleven asylum officers in Region C deviated more than 50% from the mean regional APC grant rate. Given Region C's high degree of consistency in its adjudications of APC cases generally, perhaps the significant degree of inconsistency in Indian cases reflects particular disagreements among officers about the extent of persecution within India, or about the extent of fraud committed by Indian applicants.
But what explains the tremendous range from very little to quite significant degrees of inconsistency at the eight Asylum Offices? Training, supervisory review, and the quality assurance mechanisms discussed above could well account for the high degree of consistency that exists in several offices. (44) But the existing mechanisms have not created a just system in all regional offices for those whom America wants to protect. New approaches need to be developed to achieve such a result.
III. THE IMMIGRATION COURTS
As explained in Part I, immigration courts are the "trial-level" administrative bodies responsible for conducting removal hearings--hearings to determine whether non-citizens may remain in the United States. (45) For represented asylum seekers, these hearings are generally conducted like other court hearings, with direct and cross-examination of the asylum seeker, testimony from other supporting witnesses where available, and opening or closing statements by both sides. Approximately one-third of asylum seekers in immigration court are unrepresented; (46) in these cases, the immigration judge must...
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