Our immigration system is not a software program run on a giant computer. The most important immigration decisions impacting those living in Kentucky are made by people. These immigration judges are as human as everyone else; and while some may have bias toward granting asylum, others may have a bias against it. Statistics demonstrating this fact were recently released in a report by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
Our entire legal system is made up of fallible judges who may be pre-disposed to interpret the law and facts in a certain way, so this is not unique to immigration law. In this case there are statistics to back up the existence of possible biases, and they appear to be getting more extreme. According to the report:
- The difference between success and failure for an asylum seeker is increasingly based on who decides the matter.
- A comparison of asylum decisions by judges on the same Immigration Court bench demonstrates that differences in denial rates have significantly increased during the last six years. Nationally, the average decision disparity by judges working in the same Immigration Court in asylum cases worsened by 27%.
- The median level of asylum decision disparity that asylum seekers face is more than 56%, which means whoever is assigned the asylum case could alter the odds of success by 56%. The disparity level in the Immigration Court covering Kentucky (in Memphis) is 32%. The immigration court with the highest level of disparity is in Newark, New Jersey, where the disparity is 82.9%.
- The specific ranges of disparity between judges differ by court, but overall an average asylum seeker’s chance of success may range from a low of 15% to a high of 71% depending on which judge is assigned the case.
TRAC’s conclusions were based on an analysis of asylum decisions made in fiscal years 2008 to 2010 and 2011 through 2016, released by the Department of Justice’s Executive Office for Immigration Review after a number of Freedom of Information Act requests were made by TRAC.
TRAC tried to measure decision disparities in asylum cases by taking into account the fact that assignment of asylum applications to judges within a court is supposed to be done randomly.
- As a result, all judges should be deciding on an equivalent mix of cases over time.
- If the extent of a judge’s grant or denial rates depart from one another within the same court, assuming cases are randomly assigned, the differences can’t be based on the worthiness of the cases, because each judge should be getting cases that are roughly equivalent as far as merit is concerned.
- There must be one or more factors explaining the differences, such as pre-existing biases of the judges.
Though the report shows how imperfect our asylum decision process is, it’s the system we have, and we try our best to guide our clients through it and advocate on their behalf to improve their chances of success, no matter who the judge is. Something you can do to better your chances of being granted asylum is to retain the services of an attorney who is knowledgeable about the process, the applicable laws and has experience helping others obtain asylum.
If you live in Kentucky and have any questions about asylum and think it may be right for you, contact our office so we can discuss what facts need to be shown, the applicable law, whether you might qualify and how we can help you through the process.
Attorney Kirby J. Fullerton
Mr. Fullerton’s practice is focused on immigration law. He speaks Spanish, and represents clients in cases before the immigration courts and the Board of Immigration Appeals. He began his career practicing criminal defense, and understands how matters in criminal courts can affect a client’s immigration status. [Attorney Bio]