Judge Shopping

The right to asylum is an ancient concept in which people oppressed by their own country can find protection in another country. Following the Second World War, nations faced millions of refugees, and they rushed to address the crisis. The United Nations Universal Declaration of Human Rights of 1948 says that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, a refugee is a person who is outside that person’s own country’s territory owing to fear of persecution on protected grounds, including race, caste, nationality, religion, political opinions and participation in any particular social group or social activities.

Today, people are still fleeing from oppressive regimes, but these days, they also face challenges from organized crime and climate change. Island nations are disappearing as sea levels rise; changes in rain patterns have wiped out family farms; rising temperatures have made some locals uninhabitable.

The UN Refugee Agency (UNHCR) estimates that there are currently over 108 million displaced people in the world. Many are in refugee camps, but millions are also on the move looking for a permanent home — crossing the Mediterranean from Africa to Europe, and across the Americas.

Each year, hundreds of thousands of people arrive at the U.S. border, seeking asylum. The normal process is they are admitted, and then later appear before an immigration judge to make their case,

The website trac.syr.edu/immigration has some fascinating statistics about the results of the hearings in which asylum-seekers are either approved for asylum or are denied it and are deported back to their home countries.

Some take-aways from these statistics:

• Between 2017 and 2022, Immigration Court judges nationwide denied 63.8 percent (or about 2/3) of asylum claims.
• Having a lawyer is important. About 63% of applicants were not represented by a lawyer, and of these, 83% were denied asylum.
• There are 2,503,251 cases waiting to be heard.
• So far in FY 2023, 1,077,916 new court cases have been added, and 536,490 court cases have been closed.

The difference between the various immigration judges is worth noting. This page shows the decisions on a judge-by-judge basis. The variation between judges is amazing. A judge in Houston, Texas, has never approved even one asylum case.

In Arlington, Va., if you get David White as your judge, you have a 4.6% chance of being approved for asylum; if, on the other hand, your case is assigned to Lawrence Burman, your chance of being approved jumps to 80%!

[The website notes this caveat, “Although denial rates are shaped by each Judge’s judicial philosophy, denial rates are also shaped by other factors, such as the types of cases on the Judge’s docket, the detained status of immigrant respondents, current immigration policies, and other factors beyond an individual Judge’s control. …The composition of cases may differ significantly between Immigration Courts in the country [and] …if judges within a Court are assigned to specialized dockets or hearing locations, then case compositions are likely to continue to differ and can contribute to differences in asylum denial rates.”]

Immigration judges are appointed by the Attorney General and can be removed “at will” since they are his or her delegates. The Harvard Law Review website discusses the problems with these judges and possible solutions in more detail.