Unaccompanied immigrant minors wait on July 2, 2019 in Los Ebanos, Texas to be transported to a U.S. Border Patrol processing center after entering the U.S. to seek political asylum. John Moore/Getty Images
US immigration judges considering asylum for unaccompanied minors are ‘significantly influenced’ by politics
July 13, 2021 8.30am EDT
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The news over the past months has been saturated with stories about another “surge” of unaccompanied minors crossing the southern border of the U.S.
In March 2021, the number of unaccompanied minors apprehended in the U.S. reached an all-time monthly high of 18,890. This surpassed the previous monthly high of 11,681 in May 2019.
One question not addressed in many of these stories is: How many of these children actually receive asylum and are allowed to stay in the country?
The people who make those decisions are immigration judges. Their decisions are supposed to be based on whether these children have fears of being persecuted in their home countries and whether these fears are realistic.
But our research examining the period from early October 2013 until the end of September 2017 shows that these judges were influenced by factors outside of the case. Political factors such as ideology, political party of the president who appointed them and who was president at the time they decided the case significantly influenced whether these children were allowed to stay in the country.
Aside from political factors, immigration judges are also influenced by local contexts, such as unemployment levels, the number of uninsured children and size of Latino population in the places where they work.
Unaccompanied minors and asylum
Under U.S. law, an unaccompanied minor is a child under 18 years old who does not have lawful immigration status and no parent or legal guardian in the country who can provide care or custody.
Unaccompanied minors cannot be refused entry or removed from the country without legal process because of the 1993 Supreme Court case Reno v. Flores. In 2008, new legislation allowed asylum officers to grant these children asylum at the U.S. border. If the asylum officer denies asylum to the minor, the minor may request asylum before an immigration judge.
Because immigration judges are not appointed under Article III of the Constitution, as federal judges are, they have less independence than those federal judges. According to current Justice Department rules, immigration judges are appointed by the attorney general and they act as his or her delegates.
Political pressure
In order to learn what factors affect the grant of relief to unaccompanied minors, we obtained data on their asylum applications from Oct. 2, 2013 to Sept. 29, 2017, covering over 10,000 cases from 280 different judges in 46 counties and 27 states.
Only 327 of the unaccompanied minors actually received asylum; 2,867 were deported and 455 chose to voluntarily leave.
An additional 6,645 children were allowed to stay in the country. Of those, 3,589 had their case administratively closed, which allows judges to suspend the case indefinitely without hearing and deciding on it. The remaining 3,056 had their case terminated, which means that the case against the child was dismissed.
The fate of unaccompanied minors entering the US
A review of about 10,000 asylum applications for unaccompanied minors from October 2, 2013 to September 29, 2017 found the majority of the minors were allowed to stay (in green), most because a judge either dismissed or indefinitely suspended the case against them. Only 327 were granted asylum.
Bar charts grouped to show significantly more unaccompanied minors were allowed to stay.
2,000 cases
2,867
455
3,589
3,056
327
Removed
Voluntarily Departed
Administrative Closure
Case dismissed
Received asylum
Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data
We ran a statistical analysis of political factors that may influence immigration judges’ decision: judicial ideology, political party of the appointing president and whether the decision was made before or during the Trump administration.
Following previous research on immigration judge’s ideology, we determined a judge’s ideology by considering their prior work experiences. Based on this research, we determined that some experiences, such as working for immigration agencies, are associated with more conservative views on immigration and asylum issues.
Conversely, work experiences in an immigration or non-immigration-related nonprofit or academia are associated with more liberal views. Our analysis showed that immigration judges with more liberal judicial ideology were more likely to rule in favor of granting asylum to these children.
Judges’ ideology can influence asylum decisions
Immigration judges who are more liberal tended to allow unaccompanied children to stay in the U.S. more often, compared to more conservative judges. Ideology was determined from each judge’s prior work and ranges from 1-11, most conservative to most liberal.
Area chart showing how children allowed to stay rose with more liberal judges.
1
2
3
4
5
6
7
8
9
10
11
0
50
100%
Likelihood unaccompanied minor is allowed to stay
Data from 2013-2017
Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data
We also found that judges who were appointed by a Democratic attorney general were more likely to rule in favor of the minors.
Political party of attorney general who appointed the judge
Immigration judges appointed by Democrats were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. than those appointed by Republicans.
Bar charts showing judges appointed by Democrats were more like to allow unaccompanied children to stay in the U.S., but GOP-appointed numbers were also above 62%.
Republican
62.9%
Democratic
69.5%
Data from 2013-2017
Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data
Finally, statistical analysis showed that immigration judges were less likely to grant relief during the eight months of the Trump administration compared to the last three years of the Obama administration.
President at the time the case was decided
Immigration judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. during the Obama administration than during the Trump administration.
Trump
54%
Obama
67.7%
Data from 2013-2017
Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data
Why did politics and judges’ ideology play into their decisions?
We believe it’s because immigration judges are subject to political pressure from the president, indirectly, because they are appointed by the attorney general, who is also a presidential appointee and carries out the president’s policies and wishes.
Local environment
Pressure from the executive branch was not the only factor we concluded had influenced whether these children got to stay in the U.S. or were turned away. Aside from political and ideological values, judges may also have been influenced by their local contexts.
For example, we found that immigration judges in places with more Latinos were more likely to let these children stay. Conversely, immigration judges in states with lots of poor children were less likely to let these children stay than judges in states with relatively fewer poor kids.
Latino population in the county
In counties with larger Latino populations, judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. The horizontal axis shows the percentage of the county’s population that is Latino.
20% Latino
40
60
80
0
20
40
60
80
100% likelihood unaccompanied minor is allowed to stay
Data from 2013-2017
Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data
Asylum decisions can be life-or-death matters. Although immigration judges consider the requirements of asylum law, they are also influenced by nonlegal factors when making decisions.
Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.
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will unquestionably cost some children and other refugees their lives. Immigration Judge positions are life or death — we need an Attorney General who treats them that way!
Immigration Judge appointments, particularly those at the appellate (BIA level), need to be treated by Democratic Administrations with the same care, seriousness, and strategy as Article III judicial appointments, perhaps more! Few Article III Judges, including the Supremes, affect more lives and have a bigger impact on America’s future than Immigration Judges.
The last two GOP Administrations “got” the negative power for destruction and dehumanization inherent in a “captive” court system that actively pursues misguided nativist policies and receives only sporadic supervision and attention from the Article IIIs. By contrast, the Obama Administration failed to “mine EOIR’s potential” for progressive due process advancements and building a corps of dynamic, courageous progressive judges.
So far, while perhaps exceeding the passively inept approach of the Obama Administration, the Biden Administration has also failed to achieve the radical, yet logical and obvious, reforms and decisive personnel actions necessary to undo the damage caused by the White Nationalist xenophobia of the Trump kakistocracy.
The Immigration Courts have the potential to become “model progressive courts” that could lead the way to better practices and more constitutionally and legally sound jurisprudence throughout the Federal Judiciary. Whether the Biden Administration grasps and acts boldly on that potential, or squanders it as past Democratic Administrations have done, remains to be seen.
