Asylum Free Zones in the U.S. Examined by Inter-American Commission — Ignites Dialogue Pro and Con

If people are fleeing political or religious persecution, certainly they should be granted asylum. On the other hand, if they are merely fleeing poverty or crime, which I suspect are the great majority of cases, I can understand them being turned down for asylum. We can’t even protect our own citizens from crime and poverty. They’re facts of life. And maybe some judges are better at recognizing key facts than others. And while we’re at it, why don’t we investigate courts with disproportionately HIGH asylum rates? Something going on there, perhaps?

Citing percentages as “proof” of one thing or another is misleading at best. Did you know that 97% of convicted murderers ate mashed potatoes in the week prior to their crime? Which proves…Nothing!

We could draw conclusions from this article, but I think that it would be a mistake to do so.

Tom

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Well, Mink, I adjudicated thousands of asylum cases at both the trial and appellate levels over the last 21 years. I also helped write and implement the Refugee Act of 1980, taught asylum law, helped the Solicitor General formulate the USG’s asylum arguments in the Supreme Court, was in charge of prosecuting asylum seekers in Immmigration Court, instructed asylum officers, and was a founding member of the International Association of Refugee Law Judges. There might be some out there with more knowledge of the US asylum system and how it actually operates, but not too many.

Over my judicial career, I consistently found that a substantial majority of asylum cases were grantable if the Judge or adjudicator properly applied the criteria in the generous manner described by the US Supreme Court and even the BIA (although the BIA didn’t always adhere to it’s own standards). Even some of those applicants who had to be denied were in real danger and merited protection; they just didn’t fit the sometimes arcane criteria and interpretations. Some could be protected under other laws, some couldn’t. Unlike most commentators, I actually had to face folks and tell them they were going to be removed to places where everyone pretty much conceded their lives would be in danger but that the law offered them no protection. Sometimes the DHS bailed them out with prosecutorial discretion, but if they had a crime, even a relatively minor one, or otherwise didn’t fit the PD criteria, not so much.

So, I wouldn’t waste time “investigating” why those of us who did the job correctly and conscientiously granted so many cases. I also wouldn’t “investigate” colleagues whose grant rates are unrealistically low. A judge has lots of leeway in deciding cases, including leeway to make incorrect decisions. It’s up to the appellate tribunals to get them back in line.

But, If I were still on the BIA, I would reverse more of the denials from “outliers” and use precedents to start forcing them to get in line with the generous standards and fair treatment of asylum seekers and their advocates that the law requires. Guaranteeing due process is the BIA’s one and only mission. I’d also look at getting some judges with some broader-based experience into the “outlier courts” when there were vaciencies, rather than selecting almost exclusively from those with prosecutorial or other governmental backgrounds.

I agree that you can’t go strictly by percentages, and that each case is potentially different from others. But, it’s very hard for me to see how grant rates of 10% or less in a major non-detained court could represent a fair application of asylum law. I’ve also seen some of the individual decisions by Judges with low grant rates that are in my view misapplications of the law or serious mistructions of the facts. No, I don’t think statistical parity is necessay or realistic in a system with hundreds of Judges and dozens of Courts throughout the country. But, the gap should be smaller; based on my experience, I have a strong sense that too many cases that could and should be granted are still being denied.

As always, appreciate you or thoughts.

All the best to you and your family during this Holiday Season.

Cheers,

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There are no “highs” to investigate, as this is not a matter of looking into a spectrum of opinions which has extremes at both ends. There are no IJs who have a record of an extreme number of asylum cases they have indiscriminately granted. These judges being scrutinized are biased against asylum-seekers, plain and simple, and their own comments and the statistics bear it out.

There is a statutory and regulatory law and case precedent to be applied. And it is not being applied properly or applied fairly by the judges in Atlanta or in Charlotte. The vast majority of the time, it is being ignored and asylum applicants are being intimidated and discouraged from seeking the protection they deserve under our laws. That is distasteful in and of itself. And, I know who many of these judges are; I have personally reviewed many of their decisions and the transcripts underlying them; I also have observed them when they acted in their role as prosecuting attorneys before being appointed to being IJs.

Exacerbating the problem is the fact that a majority of the applicants are in jail – having been convicted of no crime – and are without access to information, evidence, counsel. Many are suffering from the repercussions of the national, racial, religious, political, and social group persecution and trauma they already have endured, and their efforts to explain their desperate situation in a biased court only re-traumatizes them.

But hey, asylum seekers are not frauds and liars, and reputable non-profit organizations that advocate are not untrustworthy, and the Inter-American Commission for Human Rights (IACHR) is a respected international body, not a fly by night group of bleeding hearts.

Lory D. Rosenberg, Esquire
Attorney~Mentor~Certified Coach

IDEAS Consultation and Coaching

Email: lory@loryrosernberg.com
Website: http://www.loryrosenberg.com
Phone: 301-990-9257 * 301-944-4557
Admitted in MA and DC

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No “highs.” Only “lows.” “There are no IJs who have a record of an extreme number of asylum cases they have indiscriminately granted.” (Are you not ruling out the existence of IJs who have indiscriminately granted a moderate number?). Only IJs who are “biased against asylum seekers.” Well, based on the blowback from Judge Schmidt’s correspondents, it seems to me that many judges would rather grant asylum to 20 souls not deserving it (frauds and liars?) than to deny asylum to an individual that does. Call me crazy, but this would seem to indicate a general pro-seeker bias.

“Asylum seekers are not frauds and liars.” Not even one? What about that asylum-seeker from Tunisia who just killed all those poor German innocents who were out Xmas shopping?

Trustworthy organizations? I would recommend we all do out homework before signing on to an org’s statistics, methodology, reporting, or opinions. Where do we get our news? The NY Times? Wall ST Journal? MSNBC? FOX News? The RNC? The DNC? The President’s Press Secretary? Can we take it as fact when the highest government officials in the land tell us that, “I did not have sexual relations with that woman…Ms Lewinski,” or, “If you like your doctor you can keep him,” or, “The embassy attack on 9/11 was the spontaneous result of that tape put on U-Tube six months ago?”

It’s all biased! (Or lies). I’m biased, you’re biased, we’re all biased! Any entity has some sort of goal, and has some sort of strategy to achieve it. And “the ends justifies the means” is their policy way too often.

I’m with you 100% in the effort to purge bum judges. But how? As long as judges are appointed by politicians, or have to campaign for election, they will be up to their necks in politics, not law. In this environment, “activists” are more likely to become judges. And one only needs to review our recent Supreme Court nominees to suspect that gender, ethnicity, and race are “qualifications” at least as important as merit or wisdom.

Merry Xmas!!

Tom

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Hi Mink:

The truck driving terrorist was denied asylum. They just couldn’t get Tunisa to issue a travel document to deport him. So, it looks like the adjudication/judicial system worked — but the “operational” system didn’t. It’s a complex world out there.

I agree that there is asylum fraud. I also concede that it’s unlikely I’d ferret it out in Immigration Court. A professional fraudster generally takes the time and effort to do a good job of putting the case within the mainstream of cases that have been granted in the past and provides documentation that is difficult or impossible to impeach in Immigration Court given the limitations of the overcrowded system. I actually stopped asking DHS for “forensics reports” because the lab was backed up for years and most of them were inconclusive. But, I encouraged the DHS Assistant Chief Counsel to do a post-hoc check, and if anything positive came up, I reopened the case. Rarely happened. Of course, we always ran fingerprints for outstanding matters before a case was completed. “Hits” were relatively rare.

My experience however, is that the DHS actually did a good job of investigating large scale fraud schemes. Usually it was things like undercover operations, confidential informants, unhappy “customers” who didn’t get what they paid for, and disgruntled employees within the fraud operation that made the case. Many of the “hits” came after the fact during criminal or anti-smuggling investigations. But, we were then able to reopen and “undo” the bad cases without too much trouble. Given the stakes, fraud is inevitable. But, I don’t think it’s as widespread as some claim, and I give DHS credit for effectively addressing the problem, at least in my experience. I actually was involved in approving undercover operations at some point in my distant past “Legacy INS” career.

I think there is a fairly large “zone” of asylum cases on which reasonable Immigration Judges can differ. There is quite a bit of subjectivity in the system. But, I also have to believe that a grant rate of 2% (Atlanta) which is about 96% below the national average, is problematic. So, I think the BIA, the appellate authority with nationwide jurisdiction and the ability to publish precedents, needs to get some of these “outlier” courts back on track — where they are at least in the zone of reasonable differences. I don’t think you should fire judges for being wrong; but there are appropriate ways for the system to force corrections.

Thanks for the thoughtful response and all the best,

Wick

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Due process is an assumption-based concept that inherently favors keeping all the deserving fish in the net, rather than tightening the net and losing one, even if it means that an undeserving, unqualified fish is included.

That is the foundation of the constitutional due process protections in our Bill of Rights. Although it may mean that an evil-doer gets the benefit of the rights to silence, warnings, notice, a jury trial, and appointed counsel in U.S. criminal proceedings, for example, it is meant to insure that an innocent person not be unfairly convicted. To be sure, the presumption of innocence in our constitution represents a pro-defendant bias.

Likewise, the rule that an asylum seeker may win his/her claim based on credible testimony alone, if the IJ chooses not to require corroboration when it is shown to be unavailable, does give the benefit of the doubt to the asylum seeker. That benefit is consistent with the guidance in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, which the U.S. has acknowledged as providing guidance for implementing the Convention and Protocol under the U.S. Statutes.

So, yes, a pro-seeker bias is the appropriate posture to be taken in an impartial adjudication.

Happy holidays and best wishes for joy and justice in the coming year!

Lory

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The problem, Paul, to which you give reference, is that the asylum and indeed the whole immigration adjudication system is complex, made more so by the overcrowded dockets and lack of sufficient enforcement personnel. This situation is common throughout the Western democracies. EU nations are especially affected because of their proximity to one another and because of EU agreements regarding the fairly liberal movement of goods and people around the continent. I personally believe that the EU is a sound if imperfect system, but in the current political climate, the problems of immigration in Europe have become fodder for the cannons of the ultranationalist far right. A bad situation…

On a more upbeat note, I wish all of you a blessed Christmas and Chanukah, and a Happy New Year.

Judge Bruce J. Einhorn (ret.)

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Concerning the guy from Tunisia, it must be scant comfort to the families of the victims that, so far as the judicial people are concerned, the system worked just fine.

If the “operational” system is what failed, well, I’m afraid that that kind of nuance is pretty much lost on the public. Bottom line is, the government knew this guy, knew he was a threat; and still could not protect its citizens from being massacred. Result: Bye-bye Merkel; Hello Trump.

No wonder “Immigration” has been, and is, on the mind of so many voters.

And let’s pray that if a terrorist like that guy shows up in the US, he ends up in the court in Atlanta, rather than, say, San Francisco.

Tom

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“The problems of immigration in Europe have become fodder for the cannons of the ultranationalist far right???????”

The “ultranationalist far right” must include the majority of the British electorate, as evidenced by the “Brexit” vote. And the “problems of immigration” are the concern of not only Main Street Europe, but also Main Street America. This isn’t extremism, folks, …. it’s mainstream.

“A bad situation?” Or a legitimate concern? Both I and President Obama (and most Americans, I bet) think it’s right to be concerned about foreign nationals trying to blow us into smithereens. The “bad situation” would be to stick our heads into the sand, or to parrot “isolated incident” every single time a new massacre occurs. Is the potential terrorist danger overblown? Perhaps. But most Americans don’t understand the grave danger of, e.g., our ticking time bomb of rapidly-increasing crushing debt; whereas a big fat blood smear on the cobblestones a half mile long, with crying widows and orphans, is something that riles all of us up, big time. And rightly so.

Well-meaning peoples of all nations want a government competent enough to protect them from such catastrophe. And that’s reflected, we’re finding out, in the way they vote.

Tom

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Yes, the ultranationalist right has captured and enthralled much of Main Street Europe and America. Extreme has gone mainstream. It may be that as a Jew, I am a bit more sensitive to the awakening of white chauvinism and a fear of and anger at cultural other. I concede and even embrace the idea that we must be vigilant in vetting would be refugees and all those seeking status. However, it is a fact that the foreign born commit crimes at a lower rate than native born US citizens. It is also a fact that alleged terrorists in the US have not come from recently admitted refugees. And condemning in wholesale fashion judges in some of our cities as opposed to others in different cities is exactly the kind of divisiveness that characterizes extremism.

Judge Bruce J. Einhorn (ret.)

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“Condemning in wholesale fashion judges in some of our cities as opposed to others in different cities is exactly the kind of divisiveness that characterizes extremism.” Great!

Yet it seems that the judges in Atlanta and Charlotte are pretty much universally condemned by those “legal types” who chose to comment on Judge Schmidt’s original email. I wonder if they consider themselves divisive with extremist tendencies.

Tom

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Just because it’s lost on the average person, doesn’t mean the average person is right. Interestingly, part of the legal standard that the Atlanta judges misapply on a regular basis requires that asylum be granted if a “reasonable person” would fear persecution, with, of course, exceptions for terrorists, criminals, etc. Clearly, some judges are regularly denying cases where they or any other reasonable person would fear persecution (10% chance according to the Supremes).

If someone shows up in Atlanta and is denied, correctly or incorrectly, and the DHS can’t get a travel document, he’s not going anywhere. And, according to our law, as interpreted by a “conservative” Supreme Court, if the Gov can’t get a travel document, and they can’t show that a removable alien is a security risk or a danger to him or her self, the person has to be released after 6 months in detention.

Living in a free democratic society always carries risks. We are more vulnerable to terrorists. That’s why folks put authoritarians in power — in the misguided belief that it will keep them safer. But, in fact, it doesn’t. The danger just comes from another source. Me, I’ve had a chance to study lots of societies in detail over the past 40 years. I’ll take my risks here.

Although Trump has certainly made some authoritarian statements, as you suggest, I’m going to reserve final judgment until I see how he actually governs. As I judge, I tried to focus on folks actions, as opposed to their rhetoric. And, I generally give folks, including Trump, the benefit of the doubt until they prove me wrong.

Cheers and Happy Holidays,
Wick

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No, the “average person” (“The Public” as I put it) isn’t always right. But it doesn’t matter. The public are the voters. Whether the Liberals or Conservatives are in power, is the response to a massacre, “Well, this is a risk we have to take in a free democracy,” or is it, “We’ll hunt these SOBs down and take action so it will never happen again?” Well, it’s the latter, every time. (Think of how Obama and his entourage crowed about offing Osama).

Note how our freedoms continue to be curtailed. One Loony Tune out of some 2.2 million spectators that year watching the home team throws a full beer can and hits someone in the head. Result: No more carry-ins for anybody. A pedicurist gets bumped and nicks the toe of a customer causing infection. Result: Anyone doing that type of work now needs a government license and XYZ months of training. One kid on the senior class trip to Great America smuggles along some liquor, and several teens get drunk. Result: No more senior class trips–ever. As has happened in so many other situations and professions, one murderous immigrant candidate can spoil it for everyone. This isn’t an evil, “ultranational,” “extremist,” racist, or ignorant reaction; it’s just human nature. Something must be done!

Getting back to the discussion of the German massacre, the conclusion that it wasn’t a failure of the judicial system, but a failure of the operational system, also doesn’t matter. If something bad happens, whether it’s the fault of the Supreme Court, the IJs, or the bureaucrats doesn’t matter. The bottom line is that a government failed to protect its citzens from a “person-of-interest” foreign national who shouldn’t have been there in the first place.

Hence the growing global anti-immigrant, anti-government grassroots groundswell.

Tom