“Justice is blind.” This expression is the foundation of our judicial system; we expect courts to be unbiased and fair, giving the same verdict to the same case no matter where and when the trial is held, who the defendant is, and what judge is presiding. While the public eye is often focused on criminal courts and the problems that exist within that system, very little attention is paid to immigration courts. Instead of criminal cases, immigration courts process asylum claims—requests by noncitizens to stay in the United States due to fear of persecution or violence in their home country—so the outcome can often literally mean life or death for those involved. It might be concerning, then, to learn that issues of bias are even more egregious in immigration courts. The individual merits of a case are often insignificant compared to logistical factors such as what court and judge the case is assigned to; factors completely out of an asylum seeker’s control. The current system of immigration courts does not allow them to adequately process asylum claims in a way that is fair, impartial, or timely. However, several of the major factors contributing to this could be mitigated with just a few changes: by assigning public defenders to asylum seekers, by reassessing the roles of immigration judges, by eliminating the growing backlog of cases, and by allowing immigration courts to exist independently of the executive branch and Attorney General.
The issue of variance pervades nearly every aspect of immigration courts. A report by the Government Accountability Office (GAO), indicates that the outcome of an immigration court case is significantly affected by what court hears it. With major factors that impact the outcome—such as the judge’s experience and whether the asylum seeker has dependents—held equal, the GAO found that grant rates still vary between courts by an average of 28 percentage points on the affirmative and 38 percentage points on the defensive (“Asylum: Variation Exists In Outcomes” 34). The difference is even more dramatic in some situations: statistics from TRAC, a nonprofit data collection organization, show that El Paso grants 3.8% of asylum claims, whereas New York grants 82.8% of claims. That means that an asylum claim is nearly 22 times as likely to be granted in New York than in El Paso. Courts don’t need to be in different regions of the country, or even different states, to have significant variation. In Aurora, Colorado, 19.9% of asylum claims are granted, but just nine miles west, in Denver, the rate is 2.7 times higher (“Asylum Outcome”).
One major reason that asylum grant rates vary by court is the defendants’ unequal access to representation. Unlike criminal courts, immigration courts do not provide public defenders; while defendants have a right to an attorney, if they cannot afford one, they are expected to represent themselves. This rule applies not only to adults, but to children as well. Take the story of three-year-old Arturo: after his birth, he was left in El Salvador with an aunt. His mother, already a rape victim, fled the country due to further threats of sexual violence. After his family determined that it was not safe for him to stay in El Salvador, he was brought to Texas and placed in deportation proceedings shortly after. Unable to find pro bono counsel, Arturo will be expected to testify in court by himself—at the age of three—and demonstrate that he has reason to be allowed to stay in the United States (Macleod-Ball and Werlin).
Research suggests that defendants without a lawyer are almost always unsuccessful: according to a study from the University of Pennsylvania, those who received representation were over 5.5 times more likely to obtain relief from deportation (Eagly and Shafer 57). This is particularly problematic because only 37% of defendants in immigration court have an attorney—compared to nearly 100% in criminal courts—and because access to counsel varies dramatically from court to court (36). Often, representation rates are directly linked to city size. It is nearly impossible to find immigration lawyers for defendants in rural areas and small towns; only in major cities is counsel readily available, and even then, pro bono representation is extremely rare. Defendants in a city of 600,000 or more were 32% more likely to find an attorney than defendants in a city of 50,000 (41). Because of the relationship between representation and case outcome, it follows that city size correlates with case outcome as well: small cities tend to have lower asylum grant rates than large cities in the same region. This is consistent with TRAC’s findings pertaining to variation between courts and demonstrates how, for an undocumented immigrant, simply being picked up in the wrong place can significantly diminish the likelihood of being granted asylum (“Asylum Outcome”).
The only clear solution to the issue of unequal representation is to implement a public defender system similar to that of criminal courts. First, it is clear that most people are unable to represent themselves adequately; the success rate for defendants without lawyers is 2% (Eagly and Shafer 76). Individuals in immigration court proceedings are granted the constitutional right to an attorney under the Fifth Amendment, and in order to ensure this basic right while still maintaining fairness in the courts, defendants should no longer be subjected to the logistical and financial burdens of securing counsel for themselves. Research suggests that this change would improve not only the effectiveness of courts, but the efficiency as well: 93% of defendants with representation appeared for their court date, far more than those without (Eagly and Shafer 73). When unrepresented defendants do come to court, it is often to ask for a continuance for the purpose of finding an attorney. On average, 50.4% of the total duration of a case consists of the search for representation. A public defender system would eliminate this process entirely, significantly reducing the average time of each case and allowing them to be resolved in fewer hearings (61).
Providing public defenders will not fix the problem entirely, however. While access to representation might reduce grant rate variance between closely-located courts, there are still dramatic differences between the grant rates of courts in different parts of the country, even those housed in cities of similar size. For example, Las Vegas and Baltimore both have populations of about 620,000, yet defendants in Baltimore are 6.8 times more likely to be granted asylum (“Asylum Outcome”). Even within a single court, significant variance can exist. A report by the GAO found that grant rates vary by an average of 57 percentage points between judges in the same immigration court (“Asylum: Variation Exists In Outcomes” 35). One particularly striking example is Newark. There, grant rates range from 1.3% to 81.9%, meaning the chance of a claim being granted is 63 times higher from one judge to to another (“Asylum Outcome”). These statistics suggest that factors exist which effect each judge individually, leading to high variance even within the same court. While there are a multitude of reasons why judges exercising their discretion will arrive at different conclusions to the same case, these extreme discrepancies between grant rates point to a systemic problem.
Understanding the role judges play in immigration court proceedings helps explain why there is so much variance in their decisions. Unlike criminal courts, where the verdict is determined by a jury, immigration judges decide the outcome of a case by themselves. This leads to individual opinion playing a much more significant factor in the proceedings. Additionally, asylum seekers must fulfill specific requirements that can often be difficult to discern. Notably, they must be able to demonstrate “credible fear” of persecution or torture. According to the U.S. Citizenship and Immigration Services, in order to qualify for asylum, you must demonstrate that you “have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country,” or that you “would be subject to torture if returned to your country.” Though credible fear is initially determined by an asylum officer, not an immigration judge, that determination must be reaffirmed by a judge before asylum is granted. Despite the significance of credible fear determinations in the outcome of a case, there are no specific guidelines as to what constitutes an adequate demonstration of credible fear and no process to appeal a judge’s decision (“Questions and Answers”).
Furthermore, researchers at Drexel University have demonstrated that judges frequently fail to assess the legitimacy of credible fear claims. “Adverse credibility determinations,” a common practice in immigration courts which test for discrepancies in testimony, were consistently unable to determine whether testimony was real or intentionally exaggerated (Filone and DeMatteo 210). This suggests that it is dangerous to put the responsibility of making these determinations solely in the hands of immigration judges. Turning down a credible asylum claim can often mean significant harm or death for the defendant: such was the case for one Central American immigrant, Elena. Gangs killed three of Elena’s siblings in Honduras, and when a gang member began to pursue her and she turned him down, he fired bullets into the side of her house. She crossed the border to Texas shortly after, and turned herself in to seek asylum. She told a Border Patrol agent about what happened to her, but he wrote down in her paperwork that she said she would not be harmed if she returned home. After this, Elena sought a hearing with an asylum officer. When she was finally awarded one, the officer asked if she was persecuted specifically on account of her race, religion, or membership to a specific group. When she answered no, she was determined not to have credible fear of harm and was found ineligible for asylum. Elena fought back again, requesting an appeal with an immigration judge. That hearing took less than two minutes:
“Did you move to any other city in Honduras before coming to the United States?”
“No.”
“Well, the government of the United States doesn’t afford you protection for this type of reason. I affirm the asylum officer’s decision. Nothing further.”
Elena was promptly deported, and upon arriving home, she was assaulted at gunpoint, burned, and tortured by the very man she told authorities was a danger to her. He brought other gang members with him, who murdered her thirteen-year-old son by cracking his skull. She escaped, and returned to the United States with her other children, but was ineligible for asylum due to her earlier deportation (Silverman).
There is no single solution that would stop this kind of horrible injustice from happening, but there are a few steps that can be taken to help prevent it. First, judges should not be the sole arbiters of justice in immigration courts. Though judges are sworn to impartiality and nonpartisanship, their individual philosophies still inform their rulings. Thus, results are naturally skewed toward a judge’s personal political leanings when theirs is the only voice that matters. This could be avoided by implementing a jury and creating a multi-level appeals process similar to those systems found in criminal courts. To address issues relating specifically to credibility determinations and credible fear claims, one consideration would be to expand the psychological evaluation services offered to asylum seekers. Witness testimony from experts in the field of psychology can be invaluable to defendants and have been shown to dramatically increase grant rates (Patel and Sreshta 7). Not every immigration judge can be expected to fully understand the psychological impact that trauma has on asylum seekers, so deferring evaluation to professionals in the field would benefit the entire system.
These issues of variance are exacerbated by the increasing backlog of cases waiting to be heard. Statistics from TRAC show that in 2000, there was already a backlog of about 125,000 cases. Since then, the number has grown to over 750,000. The average wait time for a case has jumped from just under a year to about two years, and if trends continue, the problem will only continue to get worse (“Immigration Court Backlog”). An article from the Bipartisan Policy Center outlines the problem that the backlog poses for immigration judges. Each judge hears on average 678 cases per year—a fraction of the estimated 1,900 new cases added per judge each year—and as political pressures to reduce the backlog mount, judges are being pushed to work faster than ever (Ramón and O’Shea). Forcing judges to rush with cases only serves to further the problems of variance already far too prevalent in immigration courts.
There are several approaches that could be taken to address the backlog of cases. As mentioned earlier, a public defender system would increase the efficiency of courts, reducing the length of the average case by nearly 50% (Eagly and Shafer 61). While this would not be enough to end the backlog, it would help slow the growth. A more holistic solution is to hire more immigration judges. Research shows that if 100 more judges were added into the system, the growth of the backlog would be entirely alleviated. A recent proposal by Senator Ted Cruz would add 300 judges, primarily to courts along the southern border. Researchers project that this would reduce the backlog to 500,000 cases by the year 2030 (Ramón and O’Shea). The GAO also recommends that the process for swearing in new immigration judges be streamlined, as the current process takes over two years (“Immigration Courts: Actions Needed” 40). By the time new judges are added, the backlog will have already worsened to the point that even more judges are needed. Instead of waiting for the problem to compound, the GAO recommends implementing policies that look to the future and account for influxes of immigration (38).
Unfortunately, even if variance was completely eliminated in immigration courts, there would still be great injustices within the system. For years, Attorney Generals have been in charge of overseeing the entire immigration court system, and have had the power to refer cases to themselves to rule on personally. This is possible because immigration courts are not actually part of the judicial branch of the government; instead, they perform “quasi-judicial” duties under the executive branch as part of the Department of Homeland Security, the same department that houses Immigration and Customs Enforcement (ICE). The Attorney General can take any case—even those that have recently been decided—and change the outcome, not only reversing the decision for that asylum seeker, but setting precedent for immigration judges nationwide. Former Attorney General Jeff Sessions used this power frequently: under his influence, courts are no longer required to give asylum seekers a full hearing, cannot use “administrative closure” in order to suspend cases indefinitely, and cannot affirm credible fear for victims of “private violence,” which often includes victims of gang violence and domestic abuse (Lind).
Ultimately, the issues surrounding immigration courts will never be solved while they are subject to meddling from the Attorney General and the political motivations of the executive branch. Instead, the immigration court system should exist as a separate entity entirely. According to the GAO, almost all experts agree that the immigration court system needs to be made independent of ICE and the Department of Homeland Security, either as a new agency within the executive branch or outside of it completely. Over half of the experts interviewed by the GAO said that the most effective solution would be to create a system of both trial and appellate courts outside of the executive branch (“Immigration Courts: Observations” 4). This would help ensure their judicial independence, and keep the courts free of political pressure from the administration in charge.
Though immigration courts as they exist today are broken, there is hope. Most issues of variance and bias plaguing the courts today could be solved by just a few policy changes, and as our nation enters the third year of Trump’s presidency, political pressures to reform immigration are only increasing. More than ever, people are speaking out against injustice against immigrants, many of whom come to the United States out of fear for their lives. There are actions we can take to make a real difference in the world: we can continue to raise awareness, contact our representatives about immigration court reform, and support candidates who offer solutions to the issues we raise. We can let officials know we care, and tell them about specific policy changes we would like to see. In this way, we can hopefully help more lawyers be appointed to immigrants, change the role that judges play in immigration courts, bring more judges into the courts, and perhaps even convince Congress to restructure the entire system to exist outside of the executive branch. With our help, justice can be restored to the system, and vulnerable people fleeing violence can finally be given a fair chance at receiving the safety and security they so desperately need.
Works Cited
“Asylum Outcome Continues to Depend on the Judge Assigned.” TRAC Immigration, Syracuse University, 20 Nov. 2017, http://trac.syr.edu/immigration/reports/490/.
Eagly, Ingrid V., and Steven Shafer. “A National Study of Access to Counsel in Immigration Court.” University of Pennsylvania Law Review, vol. 164, no. 1, 2015, pp. 1-91. EBSCOhost, search.ebscohost.com/login.aspx? direct=true&db=aph&AN=110843780&site=ehost-live&scope=site.
Filone, Sarah, and David DeMatteo. “Testimonial Inconsistencies, Adverse Credibility Determinations, and Asylum Adjudication in the United States.” Translational Issues in Psychological Science, vol. 3, no. 2, 2017, pp. 202-213. APA PsycNET, psycnet.apa.org/fulltext/2017-25584-009.pdf.
“Immigration Court Backlog Tool.” TRAC Immigration, Syracuse University, Sept. 2018, trac.syr.edu/immigration/reports/490/.
Lind, Dara. “Jeff Sessions Is Exerting Unprecedented Control Over Immigration Courts—By Ruling on Cases Himself.” Vox, 21 May 2018, www.vox.com/policy-and-politics/2018/5/14/17311314/immigration-jeff-sessions-court-judge-ruling/.
Macleod-Ball, Kristin, and Beth Werlin. “How Can a 3-Year-Old Represent Himself in Court?” American Civil Liberties Union, 22 Oct. 2014, www.aclu.org/blog/how-can-3-year-old-represent-himself-court/.
Patel, Nikhil A., and Nina Sreshta. “The Role of Psychiatrists in the Growing Migrant and Refugee Crisis.” American Journal of Psychiatry Residents’ Journal, vol. 12, no. 7, 1 July 2017, pp. 6-8. Psychiatry Online, doi.org/10.1176/appi.ajp-rj.2017.120703.
“Questions & Answers: Credible Fear Screenings.” U.S. Citizenship and Immigration Services, 15 July 2015, Department of Homeland Security, www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-credible-fear-screening/.
Ramón, Cristobal, and Tim O’Shea. “Why Hiring More Judges Would Reduce Immigration Court Backlogs.” Bipartisan Policy Center, 25 July 2018, bipartisanpolicy.org/blog/why-hiring-more-judges-would-reduce-immigration-court-backlogs/.
Stillman, Sarah. “When Deportation is a Death Sentence.” The New Yorker, 15 Jan. 2018, www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.
United States, Government Accountability Office. Asylum: Variation Exists in Outcomes of Applications Across Immigration Courts and Judges. U.S. Government Accountability Office, Nov. 2016, www.gao.gov/assets/690/680976.pdf.
United States, Government Accountability Office. Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges. U.S. Government Accountability Office, June 2017, www.gao.gov/assets/690/685022.pdf.
United States, Government Accountability Office. Immigration Courts: Observations on Restructuring Options and Actions Needed to Address Long-Standing Management Challenges. U.S. Government Accountability Office, 18 Apr. 2018, www.gao.gov/assets/700/691343.pdf.