WITH FEAR, FAVOR, AND FLAWED ANALYSIS: DECISION-MAKING IN U.S. IMMIGRATION COURTS

KAREN MUSALO, ANNA O. LAW, ANNIE DAHER, KATHARINE M. DONATO, CHELSEA MEINERS, 2004

"Immigration judges (IJs), housed within the Executive Office for Immigration Review within the Department of Justice (DOJ), make decisions in asylum and withholding claims, which are life or death matters. And although their title is “judge,” IJs are DOJ attorneys who lack independence and are particularly susceptible to political pressures. Federal court judges and scholars alike have criticized the quality and fairness of IJ decision-making, and many studies have been carried out to better understand the factors that impact it. The prior studies have relied principally on quantitative data because IJ decisions are not publicly available or searchable in any existing database. The authors of this study had unprecedented access to more than five hundred IJ decisions, allowing for both a quantitative and qualitative analysis. Our findings were consistent with other studies in noting that IJ experience and gender made a difference in case outcomes, with male IJs and IJs with enforcement backgrounds denying protection at higher rates. We were able to identify other significant trends as well, including that the most common reasons why IJs denied protection to credible asylum seekers were their findings that they failed to meet the extremely stringent requirements of two elements of the refugee definition—elements which arguably are overly restrictive and inconsistent with international norms. We also observed patterns of incompetence and bias among these decisions. This Article recommends several policy reforms to address the shortcomings we identify, among them: (1) the creation of Article I immigration courts, (2) improvement of IJ competence through more stringent hiring standards and continuing education, (3) increased diversity of IJs based on employment experience, (4) reduced deference to the Board of Immigration Appeals in reviewing cases, and (5) allocating additional resources to immigration adjudication."

Karen Musalo is Professor of Law, Bank of America Foundation Chair in International Law, and Director of the Center for Gender and Refugee Studies at the University of California College of the Law, San Francisco (previously University of California, Hastings College of the Law).  Anna O. Law is Associate Professor of Political Science and the Herbert Kurz Chair of Constitutional Rights at CUNY Brooklyn College. *** Annie Daher is an asylum and immigration law attorney and formerly Senior Staff Attorney at the Center for Gender and Refugee Studies. Katharine M. Donato is the Donald G. Herzberg Professor of International Migration in the School of Foreign Service at Georgetown University.  Chelsea Meiners holds a Master of Arts in Latin American Studies from Georgetown University and currently works in international development.