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Refugee Roulette

Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform

Jaya Ramji-Nogales
Andrew I. Schoenholtz
Philip G. Schrag
Foreword by Edward M. Kennedy
Copyright Date: 2009
Published by: NYU Press
Pages: 354
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  • Book Info
    Refugee Roulette
    Book Description:

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

    eISBN: 978-0-8147-7742-8
    Subjects: Sociology

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Figures
    (pp. ix-xii)
  4. List of Tables
    (pp. xiii-xiv)
  5. Foreword
    (pp. xv-xviii)
    Edward M. Kennedy

    THE UNITED STATES has long stood tall in the world in its commitment to the protection of refugees. In the Refugee Act of 1980, Congress and the administration reaffirmed our nation’s commitment to refugees by striking the former discriminatory system that favored refugees from certain countries and discouraged others from seeking safe haven in the United States because of geographical or ideological considerations. The Refugee Act also established for the first time a uniform asylum program enabling refugees who are physically present in the United States to receive needed protection. Through these programs, millions of the world’s persecuted have been...

  6. Acknowledgments
    (pp. xix-xx)
  7. Introduction
    (pp. 1-8)

    WE AMERICANS LOVE the idea of “equal justice under law,” the words inscribed above the main entrance to the Supreme Court building. We want similar cases to have similar outcomes. We publish tens of thousands of judicial decisions and have enshrined the concept of precedent in order to reduce the likelihood that Jane’s case, adjudicated in December 2006, will come out very differently from Joe’s very similar case adjudicated in January 2007. We have adopted sentencing guidelines in the hope that the punishment meted out to offenders depends on their offenses and prior records rather than on the whims, personalities,...

  8. Part I Refugee Roulette

    • 1 The Asylum Process
      (pp. 11-16)

      AS PART OF its commitment to human rights, the United States offers asylum to foreign nationals who flee to its shores and can prove that they are “refugees”—that is, that they have a well-founded fear of persecution in their own countries and that their race, religion, nationality, political opinion, or membership in a particular social group is at least one central reason for the threatened persecution.¹ A foreign national who seeks asylum in the United States may do so either affirmatively or defensively. An affirmative applicant is one who seeks asylum on her own initiative and voluntarily identifies herself...

    • 2 The Regional Asylum Offices
      (pp. 17-32)

      THE ASYLUM OFFICE, part of the Department of Homeland Security, makes decisions in the first instance when asylum seekers come forward on their own to assert claims. These individuals provide voluminous information about themselves, including their identities and addresses, to the U.S. government. They thereby begin a process that will result in their being placed into removal proceedings if they are not successful and are among the 93% of applicants who have no lawful immigration status in the United States. These “affirmative” claims, assessed at eight regional asylum offices, constitute the vast majority of first-instance asylum cases.¹

      Asylum officers receive...

    • 3 The Immigration Courts
      (pp. 33-60)

      AS EXPLAINED IN chapter 1, immigration courts are the “trial-level” administrative bodies responsible for conducting removal hearings—hearings to determine whether noncitizens may remain in the United States.¹ For represented asylum seekers, these hearings are generally conducted like other court hearings. The immigration judge hears testimony from the asylum seeker and from any other witnesses who are available, documentary evidence is introduced formally (and is subject to objections), and closing statements may be made by each side. However, because the immigration judges are actually Justice Department officials rather than federal district judges, neither the Federal Rules of Civil Procedure nor...

    • 4 The Board of Immigration Appeals
      (pp. 61-76)

      Any party may appeal an adverse immigration court decision to the Board of Immigration Appeals (BIA). As one of us has argued elsewhere, the BIA has been the single most important decision maker in the asylum adjudication system.¹ It reviews cases nationwide and sets precedents that immigration judges and asylum officers must follow. Given that the Supreme Court issues very few asylum law decisions,² the BIA essentially interprets immigration law for the country. While a U.S. court of appeals may disagree with a Board interpretation, the BIA must follow that court’s jurisprudence only for appeals from immigration courts in the...

    • 5 The United States Courts of Appeals
      (pp. 77-88)

      AS A PRACTICAL matter, the last chance for an unsuccessful asylum applicant is to appeal an adverse Board decision to a U.S. court of appeals.¹ Appeals can be taken only to the circuit in which the immigration judge decided the underlying asylum case.² Since the location of the immigration court that decides a case is determined by the state of residence of the foreign national when removal proceedings are initiated a year or two before the appeal, the venue for the appeal depends on where the asylum applicant lived at that time. It is therefore not possible for an applicant...

    • 6 Conclusions and Policy Recommendations
      (pp. 89-132)

      In 1940, Attorney General Robert H. Jackson wrote to Congress that “[i] t is obviously repugnant to one’s sense of justice that the judgment meted out . . . should depend in large part on a purely fortuitous circumstance; namely the personality of the particular judge before whom the case happens to come for disposition.”¹ We assume that Attorney General Jackson recognized that the personal histories and personalities of judges would inevitably havesomeeffect on their judgments in cases and that what he meant was that the effect of these individual characteristics should not be very large. With that...

  9. Part II International, Judicial, and Scholarly Perspectives

    • 7 Refugee Roulette in the Canadian Casino
      (pp. 135-163)
      Audrey Macklin

      The authors of the Refugee Roulette study comprising the first part of this book have produced a truly superb piece of scholarship.² Even prior to publication, news of the findings reverberated beyond the legal academy and reached civil society, government, and the front page of theNew York Times.³Indeed, anyone concerned about the public administration of justice should read this book with interest and, dare I say, with alarm. Anyone with experience wresting potentially embarrassing data from a public agency will appreciate the tenacity and commitment required by the authors to complete the task. The Refugee Roulette study is...

    • 8 Refugee Roulette: A UK Perspective
      (pp. 164-186)
      Robert Thomas

      THE DISPARITIES IN asylum adjudication, as evidenced by part 1 of this book,² are without doubt a cause for concern. At the same time, it is important to caution against any temptation to castigate the asylum process as operating as nothing but a random or arbitrary lottery. When the decision task is viewed from the perspective of decision makers, with the same information available to them, it often reveals a patterned and rational process at work, albeit one undertaken under various pressures that can militate against the pursuit of quality decisions. While consistency is certainly desirable, it can be difficult...

    • 9 Consistency, Credibility, and Culture
      (pp. 187-201)
      Bruce J. Einhorn

      DURING MY ALMOST seventeen years as a United States immigration judge in Los Angeles, I often felt as if my colleagues and I were still smarting from the curse incurred by the hubris of our common ancestors (who apparently became among the first reported refugees). We were fellow judges and friends; we shared our lunches and reveled in our bull sessions caffeinated by twice-cooked coffee only a litigation addict could love. Indeed, among the more than two hundred immigration judges in courts across the United States, I counted many men and women whom I had known, respected, and liked from...

    • 10 Asylum in a Different Voice? Judging Immigration Claims and Gender
      (pp. 202-226)
      Carrie Menkel-Meadow

      Gender Difference in Theory and Practice The extraordinary (and quite robust) findings of Professors Ramji-Nogales, Schoenholtz, and Schrag that gender matters in the outcomes of claims for asylum is not as surprising as it might seem (at least to some of us!). The idea that women judges and lawyers might behave differently from men has been debated in legal scholarship for several decades. The current study provides some of the most powerful and interesting evidence that such a claim about gender in judging in some contexts is valid. What we ought to do about this result as a policy matter...

    • 11 Refugee Roulette in an Administrative Law Context: The Déjà Vu of Decisional Disparities in Agency Adjudication
      (pp. 227-249)
      Margaret H. Taylor

      InRefugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform(the Refugee Roulette study),² Professors Ramji-Nogales, Schoenholtz, and Schrag provide a comprehensive analysis of new data to document decisional disparities that undermine the fairness of asylum adjudication. The Refugee Roulette study is an empirical project of remarkable scope. It examines patterns of asylum decisions at four different adjudication levels: at the asylum office interview, in immigration court, on administrative appeal to the Board of Immigration Appeals (BIA), and on petition for review to the federal courts of appeals. At each level, the Refugee Roulette study generates empirical findings to...

    • 12 Learning to Live with Unequal Justice: Asylum and the Limits to Consistency
      (pp. 250-285)
      Steven H. Legomsky

      THIS ESSAY IS about consistency in adjudication. It explores why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying.

      But this essay is also about the U.S. asylum adjudication system. Asylum challenges the national conscience in distinctive ways. It generates hard questions about our moral responsibilities to fellow humans in distress; the recognition of human rights and our willingness to give them practical effect; the extent of our obligations to those who are not U.S. citizens; U.S. legal and moral obligations to the international community; the roles of state...

    • 13 The Counsel Conundrum: Effective Representation in Immigration Proceedings
      (pp. 286-306)
      M. Margaret McKeown and Allegra McLeod

      These unfortunate stories represent the classic “good news, bad news” scenario: the good news is that the petitioners had a lawyer; the bad news is that the petitioners had a lawyer. On a positive note, individuals facing the potentially dire consequences of deportation managed to retain counsel to help them navigate the complicated U.S. immigration legal system. Ultimately, though, their lawyers failed to perform to the most minimal standards of professional competence.

      Of the many insights afforded by the Refugee Roulette study, among the most striking conclusions is that “whether an asylum seeker is represented in court is the single...

  10. Methodological Appendix
    (pp. 307-326)
  11. Ninth Circuit Appendix
    (pp. 327-330)
  12. Index
    (pp. 331-334)
  13. About the Authors
    (pp. 335-335)