Rolling the Dice: The Arbitrary Nature of Asylum

By Andrew Soboeiro

In theory, justice is blind, but in practice, no legal system has ever been totally impartial. Judges often lack the data necessary to make objective decisions, forcing them to rely on their own judgment and past experiences to come to a conclusion. But this raises the risk that their biases will inform their decisions. A recent study conducted by Reuters investigates which applicants for asylum are approved, and reaches a troubling conclusion: the particular judge to whom asylum-seekers apply dramatically influences their likelihood of approval.

How Judge, Court, & Location Affect Approval

Using data from 58 American immigration courts, Reuters investigated over 370,000 requests for asylum made over the past decade. While roughly half of asylum cases were approved overall, the likelihood of approval varied dramatically based on:

• Judges: The particular judge who hears a request for asylum has a powerful impact on the odds of approval. Some judges approve upwards of 90 percent of requests, while others approve fewer than five percent. Judges are more likely to grant asylum if they have served for a long period of time, but less likely to do so if they previously worked as prosecutors for US Immigration and Customs Enforcement, or ICE. Women judges grant asylum more often than male ones do.
• Location: Besides individual judges, the city and state of application plays a critical role. Asylum seekers are most likely to be approved if they apply in Arlington, Virginia; San Francisco, California; or Boston, Massachusetts. They are least likely if they apply in Pompano Beach, Florida; Houston, Texas; or Atlanta, Georgia. In some cities, approval odds vary wildly by judge; in New York City, for example, some judges deport as few as 7 percent of applicants, while others deport as many as 64 percent. In other cities, such as Chicago, most judges approve applications at roughly the same rates.
• Appeals Courts: Judges are influenced by the appeals courts they are under. Courts under the jurisdiction of the 9th US Circuit Court of Appeals, which holds sway over the West Coast, are more likely to grant asylum than those in North Carolina, Virginia, Maryland, and South Carolina, which are under the 4th Circuit Court.
• Country of Origin: In addition to judge and court characteristics, the applicant’s background plays a role. Judges are more likely to grant asylum to individuals from countries that enjoy special protection under US law; these include Eritrea, Ethiopia, Egypt, China, and former Soviet states. On the other hand, the vast majority of asylum applicants from Honduras, Guatemala, Brazil, Mexico, and Haiti are deported.

These factors have so much influence in part because the decision to grant asylum is often highly subjective. Applicants for asylum must demonstrate that they entered the United States to escape persecution based on their political and religious views, nationality, race, or “membership in a particular social group.” But “social group” is not defined clearly in US law, forcing judges to decide what it means on a case-by-case basis. This opens the door to bias for even the most careful judges.

The Future of Asylum

Given the inherent difficulty of establishing a consistent asylum policy, judges will probably continue enjoying wide discretion over asylum requests for the foreseeable future. They are, however, likely to start leaning more heavily toward deportation. Since taking office, Attorney General Jeff Sessions has appointed 28 new immigration judges, and plans to appoint far more. Sixteen of these new judges are former prosecutors for ICE, suggesting they favor deporting asylum applicants. If this trend continues, it is likely to become far more difficult for applicants to gain asylum in the United States.

For more information on judicial decisions and other elements of American immigration policy, contact Vigoda Law Firm today at 919-307-7817.