Sara Weber

Wednesday, May 4, 2016

Study shows disparities in how Arizona judges granted asylum

WASHINGTON – Arizona’s 11 immigration judges varied widely in their handling of asylum cases between 2009 and 2014, with denial rates ranging from 21.3 percent for one judge to 65.9 percent for another, according to Justice Department data.

But that range was well within the national average for individual judges on asylum requests, which stretched from denial rates as low as 3.9 percent to as high as 99 percent, according to an analysis by researchers at the Transactional Records Access Clearinghouse at Syracuse University.

The TRAC report found that Arizona judges, overall, were in line with the rest of the nation, denying 48.8 percent of cases in the state compared to 48.5 percent nationally.

Experts and analysts cautioned against reading too much into the numbers, noting that differences between judges can stem from everything from personal bias to an applicant’s criminal background, the presence of a lawyer or legal precedent.

Evelyn Cruz, who directs the immigration clinic at Arizona State University’s Sandra Day O’Connor College of Law, said in a phone interview that “there is a disparity and some biases in judges – the bias does exist.”

But that is true in any court case, said Lynn Marcus, co-director at the University of Arizona’s Immigration Law Clinic, noting that how a judge rules is “based on personality and proclivity and outlook.”

– Roll over the map above to see denial rates of asylum requests from 2009-2014 by immigration courts across the country. Red circles represent requests from detention facilities, blue from immigrants not in detention. (Cronkite News graphic by Sara Weber)

The Arizona judges ranged from Judge Irene Feldman, who approved the fewest asylum requests, to Judge John Richardson on the other end. Requests for comments from all the Arizona judges were met by representatives who said the judges would not comment on their decision-making processes, and directed inquiries to Kathryn Mattingly of the Executive Office for Immigration Review.

Mattingly said in an email that “each case has its own set of facts and variables that affect its outcome.” She also said that decisions are based on established precedents and laws.

“Immigration judges adjudicate cases on a case-by-case basis, according to U.S. immigration law, regulations and precedent decisions,” Mattingly said. “Immigration judges consider all evidence and arguments, including information on country conditions, presented by both parties, and decide each case based on that information.”

Those seeking asylum in the United States usually do so out of fear of physical harm or religious persecution back home. They can apply for one of two kinds of asylum requests: An affirmative application, in which someone immediately comes forward seeking asylum, or a defensive application, which is generally a final attempt to keep from being returned to their home country.

Asylum seekers in detention centers are more likely to submit a defensive request, Marcus said, and are more likely to be turned down. Denials at detention centers around the country ranged from 55.7 percent to 99.5 percent, according to the TRAC data.

Judges in Eloy denied an average of 94.9 percent of cases, and those in Florence denied 89.9 percent. Both are home to prison complexes.

“One of the reasons that the denial rate is so high in detained cases is because you get so many people who are desperate to stay with their families,” Marcus said. “They’re grasping at straws and asylum is the last straw.”

Cruz said that this “last straw” attempt is generally less likely to win a judge’s approval.

“You can’t compare an affirmative, ‘I don’t want to go back, I’m afraid,’ to a defensive, ‘This is my last option available,’” Cruz said. “It can be harder in detention cases.”

In Florence, Judge Bruce Taylor denied 92.4 percent of his asylum cases. Judge Feldman in Eloy denied asylum in 96 percent of her cases, making her the ninth-strictest judge of the 250 studied by TRAC.

The presence or lack of an attorney also seems to play a large role in whether an asylum request is approved or denied, according to the TRAC data. It showed that, across the country, 89 percent of asylum seekers who did not have legal representation were denied asylum from 2009 to 2014.

TRAC analysts estimate that 14.6 percent of asylum seekers in the country did not have legal representation.

Marcus said some of the disparities can be explained by “conservative versus liberal judges and how restrictive they are in their interpretation of asylum laws.”

“It could be that some judges want to find applicants not to be credible based on minor inconsistencies and some are willing to overlook inconsistencies and look at their testimony and give them benefit of the doubt,” she said. “Without a doubt, it’s got to include their view of the asylum statutes.”

Mattingly said there is nothing wrong with the disparities on their face, but insisted her office is on guard to make sure judges follow precedents and play by the rules.

“EOIR takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications,” she said.