Immigration Judges and U.S. Asylum Policy

CHAPTER 1

Introduction

In this book we seek to enhance understandings of why immigration judges (IJs) do what they do. We perceive IJs as the linchpin of U.S. asylum policy, and we assert in these pages that understanding how IJs decide asylum cases is the best place to begin trying to grasp asylum policy in the United States. In addition, the IJs offer an interesting case study from the perspective of scholars of judicial behavior because they decide cases in highly ideological fashion even though they are analogous to trial judges, a situation that is not often depicted in the literature. We attempt to move beyond the asylum literature’s focus on disparities in grant rates as the primary criticism of the U.S. asylum process. Instead we focus on theoretical constructs—largely adapted from theories of judicial decision making—that allow us to better understand the conditional nature of IJ decision making. This approach leaves us with the overriding sense that eliminating disparities in IJ adjudication is akin to tilting at windmills—the causes of variation are too deeply embedded and the contexts in which decisions are made are too varied and influential. Instead, we implicitly focus on the quality of IJ decisions—a focus we make explicit in our final chapter, where we offer several concrete suggestions for improving the quality of decision making by IJs.

U.S. asylum policy represents a unique intersection of foreign and domestic policy. The implementation and adjudication of asylum cases triggers a wide range of potentially conflicting interests including international human rights norms, national security issues, geopolitical interests, border and immigration control, and the national and state economies. Asylum adjudications are enmeshed in a complicated web of domestic immigration law, U.S. treaty obligations, and federal jurisprudence. Recently, significant changes have been made in U.S. asylum law in response the terrorist attacks on the United States and in response to fears of economic migrants flooding the country. These changes have in turn triggered concerns that the law has become too draconian to meet our treaty or broader humanitarian obligations and ultimately may have left legitimate asylum seekers vulnerable. The individual adjudications of asylum law are made in an asylum system that spans two executive branches (the Department of Justice and the Department of Homeland Security) and that are overloaded and underresourced at every stage of the process. Components of the system have been politicized, such as the hiring process of IJs under Attorneys General Ashcroft and Gonzales and the ideological culling of the Board of Immigration Appeals by Ashcroft.

The key adjudicators—IJs—have generated a significant amount of controversy in regard to the consistency and fairness of their judgments, to such an extent that some critics have concluded that the decision of whether an individual gets asylum depends mostly upon the judge the individual draws. Both IJs and the Board of Immigration Appeals (BIA) have drawn criticism from the federal courts for the quality of their work. IJs in turn point to their crushing caseloads, limited support, and complicated cases, and limited independence from the Department of Justice (DOJ)—a point repeatedly made to multiple presidents and to Congress—most recently appealing to both the Senate and the House in the current attempts at immigration reforms. These issues have generated increasing concern and concomitant scrutiny of the asylum process and its various actors by commentators, activists, and scholars. In this book we engage in a theoretically driven, systematic, and rigorous examination of the core asylum adjudicator—the IJ. Our study allows us to empirically test the key criticisms and issues raised in regard to asylum decisions and U.S. asylum policy more broadly. Our theoretical underpinning allows us to offer explanations of IJ decision making that may inform future asylum policy or reforms.

In this book, we seek to better understand U.S. asylum policy by focusing on those whom we consider to be the most important, yet relatively unstudied, actor in the convoluted asylum bureaucracy: IJs. We have decided to focus on IJs for a host of reasons, some theory driven, some substantively driven, and others data driven. Most important from our perspective, IJs decide the majority of asylum cases in the United States and decide them with a significant degree of finality. The BIA, the body responsible for review of the decisions of IJs, reviews only 47 percent of the merit asylum decisions made by IJs (a high percentage to be sure) and upholds 74 percent of the decisions that they review. Combining these percentages means that 12 percent of the decisions made by IJs are reversed. Although this reversal rate may be high in comparison to the rates of Article III courts, nonetheless IJ decisions are usually final.

Below the IJs in the asylum bureaucracy are the asylum officers (AOs). They are the first to review affirmative asylum cases (we explain the distinction between affirmative and defensive asylum claims below). AOs tend to act as a rather permeable filter in the process, culling the cases in which it is clear that the claimant has a right to asylum and then passing the more difficult cases up the chain to the IJs. About one-third of the applicants who are eventually granted asylum receive it from AOs at this early stage of the process. In short, IJs decide the majority of asylum claims and virtually all of the cases in which asylum is not clearly due to the applicant. For these reasons, IJs tend to decide substantively more difficult cases than do the AOs.

Our interest is also in analyzing the individual decision making of the IJs as opposed to summaries of aggregate trends across courts or time, or comparisons within courts. This is because we believe, theoretically, that an understanding of the asylum bureaucracy starts with an understanding of the case-level decision-making process of IJs. That is, how do IJs decide each individual case before them? Which factors matter most and how? Thankfully, data are available on the decisions made by individual IJs in cases from at least 1990 onward. Such data are not publicly available, to our knowledge, for the AOs at all and, though individualized case outcomes are available for the BIA, data are not available on the decisions of individual members in the BIA.¹ Therefore, given our theoretically driven focus on individualized decision making, it is not possible to study the AOs or the BIA in sufficient detail. We recognize that IJs make decisions at the midlevel in a complex bureaucracy, and that the context in which they make their decisions is crucial to understanding them. Therefore, we are able to utilize the aggregate statistics that we generated for both the AOs and the BIA where appropriate to ensure that we have properly contextualized the decision making of the IJs without also overcomplicating our desired focus. Furthermore, in Chapter 5 we focus on how the BIA affects IJ decision making.

We undertake the most thorough examination of the decision making of IJs ever attempted in the literature. To that end we analyze the IJs from a number of perspectives, beginning with a basic cognitive model of their decision making in cases that incorporate the extensive literature on judicial decision making as well as the concerns of international relations scholars. We engage in a cross-sectional analysis of all of the decisions of IJs in every asylum claim decided on the merits between 1990 and 2010, a total of over half a million claims. Although Congress has limited what data are available about applicants due to privacy concerns, we do know the form of relief requested, case number and outcome, applicant’s country of origin and language spoken, and whether or not the applicant had a lawyer. From this, we are able to leverage country of origin characteristics to form a more complete picture of the applicant’s case for asylum. We then expand our perspective to focus on how local demographic, economic, and political factors affect IJ decision making, drawing upon dominant theories within the broader immigration literature including variations of contact and threat theory. We next account for how the prospect of BIA review might influence IJ decision making. Finally, we analyze the aggregate trends in asylum decision making across the span of our data in an attempt to better understand the dynamic nature of policy interventions in the asylum process, drawing upon key policy perspectives within the immigration literature.

Our theoretically driven focus and rigorous empirical analysis allow us to generate a substantive understanding of asylum decision making that should speak directly to various policy makers considering a variety of proposals that have been advanced for reforming the asylum system and the broader immigration system. Critics argue that past policies, laws, and DOJ regulations promulgated in response to the threat of terrorists, undocumented immigrants, and an unwieldy asylum system have generated unintended consequences for both the asylum seeker and the U.S. asylum bureaucracy. We examine these expectations empirically and believe that these analyses can inform a discussion about the potential unintended consequences of currently debated reform. Indeed, this is one of the major benefits of our approach: because we have a well-developed theory of how the IJs decide cases, we have insight into which parts of that decision-making process are amenable to change and how policy makers might go about making the desired changes. We turn next to a brief summary of asylum law and the recent controversies that have surrounded IJs.

Asylum and Refugee Status in International Law

Following World War II, in 1951 the United Nations General Assembly promulgated the Convention Relating to the Status of Refugees (hereafter the Convention), which sets out rights and obligations of states to refugees. The core principle of non-refoulement underpins the international refugee regime. Generally speaking, this principle prohibits states from forcibly returning individuals who fear a return to their country of origin. For an individual to be eligible for protection, this concern must be based on a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.² While the general intent of the regime is protection of refugees, from the outset the Convention reflected the Eurocentric political realities of the time and provided legal protection to only a limited set of refugees. To qualify, individuals had to be refugees as a result of events occurring before 1 January 1951. In addition, countries were able to exclude refugees from outside of Europe. To do so, they were allowed to make a declaration when becoming party, according to which the words ‘events occurring before 1 January 1951’ are understood to mean ‘events occurring in Europe’ prior to that date (United Nations High Commissioner for Refugees [UNHCR] n.d., 2). The United States, which had played a strong role in restricting the scope of international protection of refugees under the Convention, did not join the 1951 Convention. For U.S. policy makers at that time the most important aspects of American refugee policy were maintaining international attention devoted to refugees from Communist countries, encouraging emigration from the Eastern bloc, and minimizing appeals for assistance funds to refugees (Betts, Loescher, and Milner 2012, 21). Instead it created two other U.S.-led organizations that were parallel to and outside the purview of the United Nations (Loescher 2003, 7 and see also Copeland 2003, 108–9) to limit the functional scope of the UNHCR.

Over time the legal norm expanded, in large part due to the efforts of the UNHCR, which successfully pushed for universal coverage for refugees, which was achieved with the promulgation of the 1967 Protocol eliminating the original geographical and temporal restrictions (Betts, Loescher, and Milner 2012, 30).³ The United States strongly supported and joined the 1967 Protocol.⁴ The move clearly signaled a change from its previous unilateral Cold War policies, which we discuss in the next section.

Today the right to non-refoulement is widely considered to be a part of customary international law and thus would apply even to states that are not formally a party to the 1951 Convention or Protocol (Goodwin-Gill and McAdam 2007, 345 and citations within). In 2001, the state parties to the Convention issued a declaration reaffirming their commitment to the 1951 Convention and the 1967 Protocol and recognizing in particular that the core principle of non-refoulement is embedded in customary international law (UNHCR n.d., 4).

U.S. Asylum and Refugee Law and Policy

Asylum law in the United States is domestic law that is expressly based on international law (Anker 2011, 2). As Cianciarulo notes, the passage of the 1980 Refugee Act, which sought to give statutory meaning to our national commitment to human rights and humanitarian concerns … ushered in a new era of refugee protection" (Cianciarulo 2006, 109–10). The 1980 Refugee Act was the first congressional act to specifically address refugees and asylum seekers. Previously, Congress had controlled immigration through rigid quota systems such as those implemented under the Immigration and Nationality Act of 1952 (INA), although presidents spanning FDR to LBJ had creatively skirted congressional limits by directing their attorneys general to use their power of parole to allow aliens, and thus unilaterally had admitted large numbers of refugees outside of the quota systems.⁵

The 1980 Refugee Act repealed the INA’s geographical and political limitations and lifted numerical caps on the number of annual asylum grants (Cianciarulo 2006). Cianciarulo argues that with the passage of the 1980 Act (along with the Supreme Court’s recognition of the implications of the Act in INS v. Cardoza-Fonseca), "asylum was no longer an ad hoc, marginal immigration procedure entirely subject to the whims of policy (110). Anker (2011, 17) argues that Congress’s intent in enacting the legislation was to conform provisions of U.S. law to the Refugee Convention. According to the House committee report, the act represented an intention to emphasize and make paramount the plight of refugees themselves, as opposed to national origins or political considerations (as cited in Gibney 1988, 111). However, this does not mean that it was entirely free of foreign policy or national security interests. Gibney (2004b, 157) argues that even after the 1980 law, through State Department opinions, the ideological predilections of the Administration found their way into Immigration and Naturalization Service (INS) asylum decisions" (see also Ferris 1987, 126). We discuss this more in Chapter 3 when we examine the role of U.S. foreign policy interests in asylum outcomes.

Today, there are two paths through which individuals may claim refugee status in the United States—either as a refugee or as an asylee. Both paths require that individuals fulfill the definition of refugee in the INA. Refugees apply for status outside of the United States, while individuals requesting asylum do so from within the United States or upon arrival at a port of entry. Refugee quotas and regional allocations are set by the president, who consults with Congress. In addition to INA eligibility, refugees must come from a country that is of special humanitarian concern to the United States and must not be resettled in another country or ineligible due to security, criminal, or other factors as determined by U.S. Citizenship and Immigration Services (USCIS) (Martin and Yankay 2012, 1–2). While asylum is discretionary under U.S. law, there are no numerical limits, as there are for refugees. The United States has been a major refugee receiving state. As Gibney (2004b, 132) notes, no Western state has admitted more refugees than has the United States since the end of World War II. However, refugee flows into the country have dramatically decreased, particularly since the September 11 attacks. Recently, the number of refugee admissions has subsequently begun a slight recovery, as seen in Figure 1.1, which plots the number of asylum grants by IJs compared to annual refugee inflow from 1990 to 2010. There is a striking negative relationship between the two series, which have (at the annual level) a correlation of –.91. Each series is plotted on its own scale, with the number of asylum cases on the right axis and refugee inflow on the left axis. Since these are the two paths through which individuals can escape persecution and seek to gain legal protection within the United States, it is reasonable to find that trends across the two potential routes to safety in the United States interact. Exploring this connection is beyond the scope of this work, but we plan to address the relationship in subsequent work that focuses on the broader U.S. refugee system.

The Asylum Process

Today U.S. law provides three treaty-based forms of relief or protection for individuals fleeing persecution: (1) asylum and (2) withholding of removal—which are based on the 1951 U.N. Refugee Convention and the 1980 Refugee Act—and (3) protection against return under Article 3 of the Convention Against Torture (CAT). The CAT narrowly prohibits the return of a person to another country if there are substantial grounds to believe he or she would be subjected to torture. Since 1999, the United States has also been bound under this obligation through the Foreign Affairs Reform and Restructuring Act of 1998. Each of the three forms of protection offers different levels of relief or benefits and each has somewhat varying legal thresholds that must be met.⁶ We discuss these fully in Chapter 2. Next we turn to the asylum process and the institutions and actors within the various stages of the process.

Figure 1.1. Asylum Grants and Refugee Admissions, 1990–2010.

The asylum process today involves two executive departments—the DOJ and the Department of Homeland Security (DHS). Generally speaking, jurisdiction over the asylum process between the DOJ and DHS can be demarcated as follows: DHS has jurisdiction over ‘border’ or credible fear interviews and first instance affirmative asylum applications (for persons who voluntarily apply before the institution of removal proceedings) and DOJ has jurisdiction over asylum applications determined in the course of removal proceedings, as well as over withholding of removal and applications for protection the Convention Against Torture (Anker 2011, 12). In January 1983, the Executive Office for Immigration Review (EOIR) was created as a separate agency within the DOJ through an internal DOJ reorganization that combined the BIA with the IJ function previously performed by the former Immigration and Naturalization Service (INS), making the immigration courts independent of INS, the agency that at the time was charged with enforcement of U.S. immigration laws.

The EOIR is charged with administering immigration courts nationwide. The EOIR, located in Falls Church, Virginia, is headed by a director who reports directly to the deputy attorney general. Within the EOIR, the Office of the Chief Immigration Judge provides overall program direction of fifty-nine immigration courts throughout the United States and has administrative supervision for approximately 260 IJs. This number has been slowly increasing over time, in an attempt to reduce the backlog of cases. The BIA serves as the highest administrative tribunal adjudicating immigration matters, and has responsibility for interpreting and applying immigration laws nationally. The BIA is constituted by a directive of the attorney general and is authorized to have as many as fifteen members who serve at the pleasure of the attorney general. The BIA has broad authority to review decisions of IJs and does so through a paper review process.

IJs are administrative adjudicators who are formally appointed by the deputy attorney general; however, the EOIR and the Chief Immigration Judge handle their hiring. Current qualifications set by the attorney general require only that the candidates have seven years of prior legal experience. IJs arguably have less structural independence than federal judges and potentially less independence than administrative law judges. Nonetheless, they maintain a high degree of independence. The INA (Section 240) states that in deciding the individual cases before them … IJs shall exercise their independent judgment and discretion. IJs (originally known as Special Inquiry Officers) act as trial-level judges at this stage with asylum hearings being somewhat adversarial in process if the applicant has an attorney.

The Asylum Officer Corps (AOC) was created as a part of the INS belatedly in October 1990—a decade after the 1980 Refugee Act and in response to a push for further reform of asylum in 1990 during the Bush administration; the AOC was intended to ensure that political-asylum rulings are ‘fair and sensitive’ (Koehn 1991, 232). AOs were placed under the authority of the DHS by the Homeland Security Act of 2002. They are now housed within the new USCIS, which has responsibility for enforcing federal immigration laws and administering immigration and naturalization benefits. There are eight asylum offices across the country, with over three hundred AOs serving.

A noncitizen who is physically present in the United States may seek asylum through either an affirmative or defensive process (see Figure 1.2). In the affirmative process, the applicant voluntarily identifies himself or herself through an application with the USCIS. The individual may or may not have valid status in the United States at the time of the application, but the application is not initiated during removal proceedings. In the affirmative process, once an application is filed, the applicant will receive notice to be fingerprinted and then will receive a notice to appear for an interview with an AO, who will review the application in a nonadversarial process in which the applicant must bring his or her own interpreter if desiring one. AO decisions are reviewed by a supervisor with the AOC. AOs are empowered to grant asylum, but the rates are rather low, as we can see in Table 1.1. The grant rate ranges from a low of 22 percent in 1997 to a high of 47 percent in 2000. As of 1995, if the application is denied and the applicant does not have valid immigration status, the applicant is referred to the immigration court for a de novo hearing and is now in removal proceedings.⁷ At this point the asylum seeker enters the defensive asylum process. The referral rates have ranged from 49 percent in 2000 to 73 percent in 1996.

In the defensive process, typically the noncitizen has been apprehended within the United States and is in removal proceedings in immigration court when the applicant makes an application for asylum. A second stream of defensive applicants consists of aliens who arrive at a U.S. port of entry without proper documentation and who are placed in the expedited removal procedures that went into effect in 1998 under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which we will discuss further in subsequent chapters. If these individuals express a fear of persecution, they are detained and receive a credible fear interview with an AO; otherwise the immigration officer at the port of entry can deny admission and summarily remove the aliens. If the aliens are found credible by the AO, the individuals are referred to an IJ for a hearing.

In the defensive process, applicants can apply for all three forms of relief if appropriate. The EOIR provides the applicants with an interpreter for the IJ hearings, but representation is not provided. If the applicants are not represented, the IJ guides them through the proceedings and advises them of their rights and options for relief or removal (Alexander 2006; Transactional Record Access Center [TRAC] 2009). Judges usually provide an oral decision at the end of each hearing due to caseload constraints. On the right side of Table 1.1 we report the IJ grant rates. In the last column we report the grant rates for any form of relief (including asylum, withholding of removal, or withholding of removal under the CAT), which range from a low of 17 percent in 1995 to a high of 58 percent in 2010. Of the three forms of relief, applications for asylum have consistently been the most successful, ranging from grant rates of 17 percent in 1995 to 49 percent in 2010. Withholding of removal has been granted considerably less often, with a high of 7 percent or 8 percent from 2005 forward, and relief under the CAT has rarely been granted thus far. Understanding these time trends is important in attempting to describe the current state of U.S. asylum policy, and we take up that analysis in subsequent chapters.

Figure 1.2. Asylum Process. Adapted from Flow Chart: Steps in the Asylum Process, at http://www.immigrantjustice.org.

Table 1.1. Descriptive Analysis of Asylum Officers and Immigration Judges Decisions, 1990–2010

Sources: Data gathered by authors from USCIS and EOIR.

a  Incomplete year so excluded from annual analysis.

Both applicants and the DHS may appeal IJ decisions to the BIA, but the government appeals few cases in practice. IJ decisions are subject to the reasonableness standard of appellate review, which requires that the BIA find that the IJ reached unreasonable conclusions in order to reverse a decision. The facts of a case are reviewed for clear error by the BIA, whereas application of the law is reviewed de novo. Table 1.2 presents the annual number and percentages of asylum cases appealed in between 1990 and 2010, along with the percentage of appeals that favor the asylum seeker. As noted at the outset, about half of all applicants eventually seek review with the BIA, but only about one-fourth of those petitions that are reviewed are overturned. The peak year for asylum appeals was 2003, with just over twenty thousand cases appealed, although, as an overall percentage of decided cases, the rate is much higher before 1996 than after. Similarly, in general it appears that the BIA was friendlier to applicants in the early 1990s than at any other period in our data. We explore these trends more in Chapter 5. Board decisions may be referred