Refugee Roulette: disparities in asylum adjudication.

• Author: Ramji-Nogales, Jaya

INDEX OF FIGURES AND TABLES INTRODUCTION I. THE ASYLUM PROCESS A. The Regional Asylum Offices B. The Immigration Courts C. The Board of Immigration Appeals D. The United States Courts of Appeals E. The Supreme Court II. THE REGIONAL ASYLUM OFFICES A. Grant Rate Disparities for Asylee Producing Countries Among Individual Asylum Officers B. Grant Rate Disparities for Single Countries Among Individual Asylum Officers III. THE IMMIGRATION COURTS A. Disparities Between Courts B. Disparities Within Immigration Courts C. Disparities from the Court Mean D. Disparities from the Court Mean, Holding Nationality Constant E. Variables Impacting Judges' Decisions IV. THE BOARD OF IMMIGRATION APPEALS A. Background B. Data Request and the Limitations of Board Reeordkeeping C. Findings V. THE UNITED STATES COURTS OF APPEALS VI. KEY FINDINGS A. Disparities Within Particular Asylum Offices, Immigration Courts, and Federal Appeals Courts B. Disparities from Region to Region C. Possible Causes of Disparities Among Immigration Judges D. The Erosion of Appellate Review by the Board of Immigration Appeals VII. POLICY IMPLICATIONS METHODOLOGICAL APPENDIX I. Benchmarks for Counting and Comparing the Number of Outlying Adjudicators II. The Asylum Office III. The Immigration Courts A. Grant Rate Data Analysis B. Cross-Tabulation Analysis IV. The Board of Immigration Appeals V. The United States Courts of Appeals NINTH CIRCUIT APPENDIX INDEX OF FIGURES AND TABLES Figure 1. The Affirmative Asylum Process Figure 2. Individual Asylum Officer Grant Rates for APC Cases--Regions A & Figure 3. Individual Officers' Deviations from the Regional Office Mean Grant Rate in APC Cases--Region D Figure 4. Individual Officers' Deviations from the Regional Office Mean Grant Rate for APC Cases--Region A Figure 5. Individual Officers' Deviations from the Regional Office Mean Grant Rate in APC Cases--Region H Table 1. Grant and Deviation Rates for All Regional Offices Figure 6. Individual Officer Grant Rates in Chinese Cases--All Regions Figure 7. Individual Officer Grant Rates in Chinese Cases--Region C Figure 8. Individual Officers' Deviations from Regional Mean in Chinese Cases Region C Figure 9. Individual Officer Grant Rates in Chinese Cases--Region E Figure 10. Individual Officers' Deviations from Regional Office Mean in Chinese Cases--Region E Figure 11. Individual Officer Grant Rates in Chinese Cases--Region H Figure 12. Individual Officers' Deviations from Regional Office Mean in Chinese Cases--Region H Figure 13. Mean Grant Rates in Chinese Cases By Region Figure 14. Percentage of Officers Who Are Outliers in Chinese Cases by Region Figure 15. Individual Officer Grant Rates in Ethiopian Cases--Region D Figure 16. Individual Officers' Deviations from Regional Office Mean in Ethiopian Cases--Region D Figure 17. Individual Officer Grant Rates in Indian Cases--Region C Figure 18. Individual Officers' Deviations from Regional Office Mean in Indian Cases--Region C Figure 19. High, Low, and Average Grant Rates for Nationals of APCs in High-Volume Immigration Courts Figure 20. Average Grant Rates for All APCs in High-Volume Immigration Courts Figure 21. Percent of Judges Deviating over 50% from National APC Mean Figure 22. Grant Rates for Judges Who Are Outliers in APC Cases--New York (9 of 31 judges) Figure 23. Grant Rates for Judges Who Are Outliers in APC Cases--Los Angeles (7 of 22 judges) Figure 24. Grant Rates for Judges Who Are Outliers in APC Cases--Miami (8 of 24 judges) Figure 25. Judges' Grant Rates in Albanian Cases--New York Figure 26. Judges' Grant Rates in Indian Cases--San Francisco Figure 27. Judges' Grant Rates in Chinese Cases--Los Angeles Figure 28. Judges' Grant Rates in Colombian Cases--Miami Figure 29. Relationship Between Representation and Grant Rates Figure 30. Relationship Between Asylee's Dependents and Grant Rates Figure 31. Relationship Between Judge's Gender and Grant Rates Figure 32. Judges' INS/DHS Experience by Gender Figure 33. Grant Rates by Different Types of Prior Work Experience Figure 34. Grant Rates by Judges' INS/DHS Experience Figure 35. Grant Rates by Gender and Work Experience Figure 36. Grant Rates by Gender, Representation, and DHS/INS Work Experience Figure 37. All Immigration Cases Appealed from BIA to Courts of Appeals Figure 38. Grant and Remand Rates in Panel Asylum Decisions (FYs 1998-2000, 2003-2005) Figure 39. Number of Decisions by Year and Type (FYs 1998-2000, 2003-2005) Figure 40. Number of Decisions Issued by Panels and Single Members Figure 41. Remand Rates in Asylum Cases Figure 42. Asylum Grant and Remand Rates Figure 43. Asylum Grant and Remand Rates, Including Representation Figure 44. Asylum Grant and Remand Rates for Applicants from APCs Figure 45. Asylum Grant and Remand Rates by APC (FYs 2001-2002) Table 2. Asylum and Related Appellate Decisions by Circuit (Calendar Years 2004 and 2005) Figure 46. Remand Rates in Asylum and Related Cases, 2004-05, by Circuit Figure 47. Asylum Remand Rates (Calendar 2005) and Civil Reversal Rates (FY 2005) Compared Figure 48. Percentage of APC Cases Remanded, 2004-2005, by Circuit Table 3. Remand Rates for Asylum and Related Cases by Nationals of China (2003-2005) Figure 49. Remand Rates of Third Circuit Judges, 2004-2005 Figure 50. Third Circuit Judges' Deviation from Circuit Mean Figure 51. Third Circuit Remand Vote Rates by Party of Appointing President. Figure 52. Remand Rates of Sixth Circuit Judges, 2004-2005 Figure 53. Sixth Circuit Judges' Deviation from Circuit Mean Figure 54. Sixth Circuit Remand Vote Rates by Party of Appointing President Figure 55. Rate of Votes of Ninth Circuit Judges Favorable to Asylum Applicants, by Judge Figure 56. Disparities in Ninth Circuit Voting Figure 57. Grant Rates by Party of Appointing President Figure 58. Disparities by Party INTRODUCTION

We Americans love the idea of "equal justice under law," the words inscribed above the main entrance to the Supreme Court building. We want like cases to come out alike. We publish tens of thousands of judicial decisions and have enshrined the concept of stare decisis 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, or ideologies of the sentencing judges. We use pattern jury instructions in both civil and criminal cases to guide lay adjudicators to apply the same law to similar disputes. When civil juries depart significantly from established norms, judges use remittitur to reduce awards, enter judgments that are at odds with the jury's verdict, or grant new trials.

Americans don't love consistent decision making merely because we think that fairness to the parties requires that similar cases should have similar outcomes. We also like the predictability that stare decisis offers. Most disputes can be settled without all-out litigation when the results of formal adjudication can be predicted in advance with reasonable certainty. In addition, and perhaps most pertinent, we don't like the idea that litigants' lives, liberty, or property could be determined by the predilections or personal preferences of the individual men and women who happen to judge their cases. The very essence of the rule of law, embodied in the Due Process Clause of the Fifth Amendment, is that individual cases should be disposed of by reference to standardized norms rather than by arbitrary factors, particularly the personal biases, attitudes, policies, or ideologies of government adjudicators.

In recent years, however, the public and the press have become skeptical about the extent to which American judging reflects only the law and not the predilections of the adjudicators. Judges (and entire courts) are commonly referred to in the press as liberal or conservative, and many lawyers believe that although they cannot predict the outcome of a trial-level case on the day before it is filed, or the outcome of an appeal on the day before it is docketed, they can do so once they know what judge or judges have been assigned to decide it. In response to this public skepticism, Chief Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit wrote a noteworthy law review article defending the notion that "it is the law--and not the personal politics of individual judges--that controls judicial decision making." (1) His article spawned a series of rebuttals and counter-rebuttals. Professor Richard Revesz conducted a careful empirical study of decisions by the judges of Edwards' court in challenges to rules of the Environmental Protection Agency (EPA). He concluded that the political composition of three-judge panels often mattered a great deal. (2)

Judge Edwards wrote a surprisingly harsh critique of the Revesz "so-called 'empirical stud[y],'" claiming that its interpretations were "bogus." (3) Revesz then rebutted this critique, (4) and Edwards published a further article rejecting the "neo-realist arguments of scholars who claim that the personal ideologies [rather than law and collegiality] ... are crucial determinants" of outcomes. (5)

Much of the Edward-Revesz debate concerned relatively small differences in the voting patterns of the various judges. For example, in two of six periods of time reported, Democratic judges voted 44% of the time to sustain environmentalists' challenges to EPA rules, while Republican judges did so only 42% of the time (a 5% disparity). In another period, the Democratic to Republican ratio was 47% to 33%. In the other periods, Republican judges were more prone to sustain such challenges than Democratic judges. In some periods, a Democratic judge was perhaps 50% more likely to vote for an environmentalist challenge than a Republican judge, a difference that should...