Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform

By in Emigration & Immigration on May 19, 2013

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Through the Refugee Act of 1980, the United States offers the prospect of safety to people who flee to America to escape rape, torture, and even death in their native countries. In order to be granted asylum, however, an applicant must prove to an asylum officer or immigration judge that she has a well-founded fear of persecution in her homeland. The chance of winning asylum should have little if anything to do with the personality of the official to whom a case is randomly assigned, but in a ground-breaking and shocking study, Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag learned that life-or-death asylum decisions are too frequently influenced by random factors relating to the decision makers. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns the application to an adjudicator. The system, in its current state, is like a game of chance.

Refugee Roulette is the first analysis of decisions at all four levels of the asylum adjudication process: the Department of Homeland Security, the immigration courts, the Board of Immigration Appeals, and the United States Courts of Appeals. The data reveal tremendous disparities in asylum approval rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. After providing a thorough empirical analysis, the authors make recommendations for future reform. Original essays by eight scholars and policy makers then discuss the authors’ research and recommendations

Contributors: Bruce Einhorn, Steven Legomsky, Audrey Macklin, M. Margaret McKeown, Allegra McLeod, Carrie Menkel-Meadow, Margaret Taylor, and Robert Thomas.

One thought on “Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform

  1. 1
    4 of 4 people found the following review helpful
    4.0 out of 5 stars
    An impressive study, and good start, October 15, 2009
    By 
    Enjolras (Springfield, MA) –
    (VINE VOICE)
      
    (TOP 1000 REVIEWER)
      

    Refugee Roulette was co-authored by Professor Jaya Ramji-Nogales of Temple University Beasley School of Law and Professors Andrew Schoenholtz and Philip Schrag of Georgetown University Law Center. The authors originally published the study in 2007 in the Stanford Law Review. This book contains the article, with minor updates. It also includes shorter articles from other legal experts about the main study.

    The Refugee Roulette authors limited their study to nationals from “Asylee Producing Countries” (APCs), those who had at least 500 claims in FY 2004 and received at least a 30% grant rate. The 15 APCs include Albania, Armenia, Cameroon, China, Colombia, Ethiopia, Guinea, Haiti, India, Liberia, Mauritania, Pakistan, Russia, Togo, and Venezuela. It excludes countries whose nationals received low grant rates, such as El Salvador and Guatemala, as well as those who entered the asylum system for purposes other than to obtain asylum, such as Mexico.

    The study defines judge/decisionmaker as deviating from the mean grant rate if his grant rate was 50% higher or lower than other adjudicators in the same office or court. The study employs a regional rather than national standard to account for differences in the composition of immigrant petitioners before each court. The statistical analysis and comparisons assume that clerks at Asylum Offices and Immigration Courts assign cases to adjudicators on a random basis.

    Here are some of the most important findings from the main article:

    Overall, during FY1999-2005, Asylum Offices had a grant rate of 35%, referring most other cases to Immigration Judges. The referrals included cases in which the petitioner 1) did not appear for his interview; 2) did not meet his burden of proof; 3) did not allege facts sufficient for protection under the statute; or 4) had not filed within 1-year or show “extraordinary circumstances” justifying a delay. Around 7% of cases were dismissed because the petitioner already had lawful status in the U.S. However, the study found considerable variation in grant rates within and between offices. Most officers granted asylum at a rate of 25-50%. Region D produced the most consistent results, with only one out of 64 judges deviating from the office mean by more than 50%. By contrast, in Region H over half of all officers deviated, and five deviated by 130-190%. The study found that disparities persisted even for petitioners of the same nationality. The grant rate for the 290 officers who handled more than 100 cases involving Chinese petitioners varied from 0-90%. In Region H, 31 out of 52 officers who decided more than 25 cases involving Chinese petitioners deviated by more than 50% from the office’s mean. Other regions, such as Region C, show relative consistency for most APCs, but wide variation for Indian applicants.

    In theory, because Immigration Courts review Asylum Office decisions de novo, they should not match the inconsistency among Asylum Offices. While the overall grant rate for APCs was 40%, the Refugee Roulette authors found serious disparities among courts for six out of 15 APCs from January 2000 to August 2004. In Los Angeles, 32% of judges deviated by more than 50% from the office’s mean rate of 41%. Within courts in Los Angeles, Miami, and New York, 8 judges were 50% above the mean and 16 below it – or 32% of all 74 judges deviated substantially from the court’s average. Again, variations arose even when holding nationality constant. Chinese petitioners faced the widest variation, with grant rates ranging from 76% in Orlando, 47% nationally, and 7% in Atlanta – in other words, the odds of a Chinese petitioner winning was 986% greater in Orlando than Atlanta.

    The authors believe that that several variables contributed to the variation found among Immigration Courts. Approximately one third of applicants come to court without legal representation. Those with representation receive favorable decisions in around 45.6% of cases, whereas for unrepresented plaintiffs the win rate falls to 16.3%. Law school clinics, pro bono firms, and NGOs, which can dedicate more time to case preparation and documentation, win at even higher rates. Likewise, applicants who claim dependents win 48.2% of cases, compared to 42.3% for lone immigrants.

    The Immigration Judge’s biographical characteristics also correlate with grant rates. Male judges granted asylum in only 37.3% of cases they heard, compared to 53.8% for female judges. Based on prior literature, the Refugee Roulette authors suggest female judges were more likely to have experienced sex discrimination in the past and thus be more sympathetic to immigrants. Likewise, female judges granted asylum to represented petitioners in 55.6% of such cases, compared to a mere 14.3% for male judges.

    Refugee Roulette concludes with several observations and policy recommendations. The authors believe the most…

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