Few Applicants Succeed in Immigration Courts
Nearly every day, in courtrooms across the country, immigrants appear before special judges who are entrusted to render “fair and proper” decisions.
In 9 out of 10 cases, the judges order the immigrants deported.
A Los Angeles Times examination of the nation’s immigration courts reveals a system in which judges are overburdened, immigrants are intimidated and justice often seems arbitrary.
“The system, I think, frankly, is overwhelmed,” said Bryan Scott Hicks, a Cincinnati immigration lawyer. “A lot more is not working than is working.”
The Times analysis of 1.2 million Immigration Court cases closed from 1994 to 2000 found that:
* It can take more than a year in some cities, including Los Angeles, to get a full hearing before an immigration judge.
* Some judges approve only 1 in 100 asylum requests they consider, while others approve as many as half. (Eleven of the 23 strictest judges are based in Los Angeles.)
* Immigrants with lawyers are 17 times more likely to avoid deportation than those without them.
The judges work for the Executive Office for Immigration Review, a branch of the U.S. Justice Department created in 1983 to separate the courts from the Immigration and Naturalization Service. Today, 219 immigration judges work in 52 courts across the country. California, with its heavy influx of immigrants, has 54 judges.
The judges hold enormous power over the lives of many immigrants, hearing about 260,000 matters a year. In most cases, these people end up in immigration court because the INS has charged them with violating immigration laws or has questions about their claims. The judges then decide whether they deserve some form of legal relief in lieu of regular deportation. The options range from asylum to legal residency to a special kind of deportation that allows them to return to America in the future with a clean record.
“You don’t have the kind of due process protections in place that Americans would expect to have,” said Bill Frelick, director of policy for the U.S. Committee for Refugees, a nongovernmental advocacy group. “You’re dealing with people who don’t speak the language, don’t know the laws and are intimidated by a judge in robes speaking into a recorder.”
The stakes are often highest for immigrants requesting political asylum. U.S. law says asylum-seekers must prove they have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Supreme Court has interpreted that to mean a “reasonable fear.”
But some immigration judges seem to have a high bar for what they determine to be “reasonable fear.”
In New York, Immigration Judge William F. Jankun, a former INS trial attorney, has ruled on 2,050 asylum cases in which immigrants showed up for their hearings since he became a judge in 1995. He has approved only 28 requests, or about 1.4% of all he considered.
Among the rejected applicants was a Jewish woman from Uzbekistan who claimed she was beaten twice and fired from her job because of her religion. During the hearing, she cried, grasped her hands and played with the chain she wore around her neck. In denying her asylum request, Jankun mentioned that she fiddled with her jewelry and wondered whether “her actions were showing she was not being credible to the court.”
Last May, Jankun’s decision was overturned on appeal and the woman was granted asylum. Jankun would not comment on an individual case.
“His reputation here in New York for a while was he never granted a case. Lawyers would be milling around the halls sharing war stories. That’s crazy. That’s not what the system should be,” said Richard Geduldig, the woman’s lawyer.
In Atlanta, Immigration Judge William A. Cassidy reviewed 807 asylum requests filed by Guatemalans who appeared for their hearings during the six-year period studied by The Times. He rejected them all.
Cassidy approved only 80 requests of 2,398 filed by immigrants from other nations.
“You could have Anne Frank in front of him, and he would say it was implausible that she could have hidden in the house for years and not be caught,” said immigration attorney H. Glenn Fogle.
Cassidy said through a court spokesman that Atlanta does “not get the kind of cases that are easily granted.”
Former Immigration Judge Joseph Vail of Houston said he believes some judges apply a standard of “probability” of persecution in asylum cases, when the Supreme Court requires only a “reasonable possibility.”
Chief Immigration Judge Michael J. Creppy said he has never looked at data showing how immigration judges rule. But he said that he was “pleased” to learn that The Times study found a wide disparity in decision-making.
“Every judge is exercising his own discretion in deciding what they believe,” he said. “Every case is different.”
But Harvard University’s Deborah Anker, an expert in asylum law, believes asylum decisions “shouldn’t be turning on every judge being different. There is a body of law that should be consistently applied.”
One critical variable is legal representation.
Under U.S. law, immigrants are not guaranteed the free services of a court-appointed attorney when they appear in immigration court.
Only 41% of the people appearing before immigration judges have lawyers. The Times study found that only 1% of applicants without attorneys received favorable rulings, compared with 23% of those who had legal counsel.
The language problem can also be formidable. In most courts, the immigrant’s testimony is translated for the judge, but the rest of the proceedings are not translated for the immigrant.
It is hard to find competent interpreters, especially in smaller cities. There were 191 languages spoken in immigration courts last year.
Berlitz, a private language instruction service, has a $15-million government contract to provide interpreters at all Immigration Court hearings. But the company paid $706,300 in fines last year because its translators did not show up for 1,314 hearings.
Immigration judges work in relative obscurity with little oversight. They are not subject to a written code of conduct.
A plan was in the works in 1994 “to enhance the professionalism of the Immigration Judge Corps by making us subject to the same rules that other judges are subject to,” according to an Executive Office for Immigration Review memo obtained by The Times. But it was never implemented.
In Los Angeles, Immigration Judge Roy Daniel presided over cases for more than a decade, even as the Justice Department received dozens of complaints about his behavior. The critics said he verbally abused immigrants, berated lawyers and ignored the law.
Finally, in 1996, Chief Immigration Judge Creppy ordered Daniel off the bench. Records show that Daniel heard no cases for a year but continued to receive his $116,514 salary while under investigation. On Dec. 28, 1997, the judge quietly retired, his benefits intact. Daniel did not respond to requests for comment.
Data analyzed by The Times show that Daniel had more rulings overturned by the Board of Immigration Appeals than any other judge in the last five years. Nearly one-third of his decisions were reversed: 68 rejected outright and 379 sent back for another hearing. Daniel approved only 1% of the asylum requests he considered.
Applicants who lose asylum cases can appeal to the Board of Immigration Appeals. Because so few immigrants have lawyers, only 10% of all cases ever undergo board scrutiny.
And the 21-member appeals board tends to agree with judges: It overturned just 3% of the rulings it reviewed in the six-year period and ordered new hearings in an additional 15% of cases, the Times analysis shows.
Appeals board Judge Lory D. Rosenberg, in a harsh dissent in one case in 1998, wrote that many immigration judges and appeals board members presume that applicants are lying and look for reasons to deny their claims.
“As a practical matter, a presumption, at worst of fraud and at best of inadequacy, has insinuated its way into all asylum adjudications made by the Board,” she wrote. “I venture to guess that such a presumption exists in many adjudications of asylum claims conducted by Immigration Judges. There is no basis in the law for such a presumption.”
Among the reasons cited by judges for denying claims: One immigrant appeared “stoic” as he testified about torture; another stared straight ahead “as though in a trance.” One applicant told his story in a “halting” manner, while another looked at the table instead of the judge.
There are no written standards for becoming an immigration judge. Creppy said he looks for seasoned lawyers who can conduct administrative hearings and who either know immigration law or have substantial litigation experience.
Creppy has tried to diversify the judge corps, in some cases choosing private lawyers who previously worked as refugee advocates.
Still, most immigration judges once worked as INS attorneys, a pedigree that may predispose them to view applications harshly. The Times analysis found that judges who never worked for the INS granted about 25% more asylum requests than those who had.
Nine years ago, before former President Clinton took office, his transition team asked Arthur Helton, now a fellow at the Council on Foreign Relations, to prepare a report on America’s Immigration Court system to guide the new administration. The Times recently asked Helton to review what he wrote.
In his 1992 report, Helton said the courts were plagued by unfair and unreliable decision-making, insufficient legal counsel for immigrants, the inability to translate entire hearings and the lack of a judicial code of conduct.
While acknowledging some improvements, Helton said he would offer the very same criticisms today.
Times researcher Sunny Kaplan in Washington contributed to this story. Richard O’Reilly, Times director of computer analysis, oversaw the computer study with help from Kaplan and Sandy Poindexter.