No Due Process, No Justice in U.S. Asylum Cases

Posted on June 1, 2007. Filed under: immigration |

The New York Times reports that there are big disparities in the judging of asylum cases.

Some excerpts:

Asylum seekers in the United States face broad disparities in the nation’s 54 immigration courts, with the outcome of cases influenced by things like the location of the court and the sex and professional background of judges, a new study has found.

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

“It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge,” said an author of the study, Philip G. Schrag, a professor at Georgetown University Law Center.

The wide discretion exercised by immigration judges can be disheartening to lawyers and disastrous for immigrants facing threats to their lives if they are forced to return home, immigration lawyers said.

“Oftentimes, it’s just the luck of the draw,” said Cheryl Little, a lawyer and executive director of the Florida Immigrant Advocacy Center, a legal assistance group in Miami that represents many asylum seekers. “It’s heartbreaking,” Ms. Little said. “How do you explain to people asking for refuge that even in the United States of America we can’t assure them they will receive due process and justice?”

The variations between courts and among judges were particularly troubling, the authors of the study argued, because of the impact of procedural changes introduced by the Bush administration in 2002 at the Board of Immigration Appeals, the appellate body that reviews decisions by the immigration court judges.

Those changes led to a “sudden and lasting decline” in appeals that were favorable to asylum seekers, the study found, raising doubts as to whether the board was providing fair appeals.

In 2002, Attorney General John Ashcroft made streamlined the work of the appeals board, reducing the number of board members to 11 from 23 and encouraging more decisions by single members and without explanation.

“The judges handle a very large caseload, they’re human, they are not going to catch every detail,” said Mary Meg McCarthy, director of the National Immigrant Justice Center, a legal assistance group in Chicago. “But once they streamlined the Board of Immigration Appeals,” Ms. McCarthy said, “there was a failure of the board to review those cases, to check on what the immigration judge had found. When that failed, we had a real crisis in the system.”

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