Gonzales and Immigration: Reform or Smokescreen?

Yesterday (as reported in the NY Times, LA Times and elsewhere) Attorney General Alberto Gonzales issued a long-awaited review of the Immigration Courts and the Board of Immigration Appeals. Now, I'm jaded enough to worry whenever anyone in this administration talks about "reform" because what that usually means is "screw the people who are already getting screwed, just more discreetly." Even so, I found it interesting to peruse the 22 suggestions contained in the report. Below are just a few examples:

3. Examination on Immigration Law

Immigration judges and Board members should be proficient in the principles of immigration law. To ensure that is true, all immigration judges and Board members appointed after December 31, 2006, will have to pass a written examination demonstrating familiarity with key principles of immigration law before they begin to adjudicate matters. The Director of EOIR will develop such an immigration law exam and submit it to the Deputy Attorney General. The Director may consider the appropriateness of a training course prior to the administration of the examination.

Requiring immigration judges to actually demonstrate that they know something about immigration law? What a revolutionary concept! Now if only we could require our presidents to know something about the constitution...

22. Expanded and Improved EOIR-sponsored Pro Bono Programs

The Director of EOIR will consider forming a committee to oversee the expansion and improvement of EOIR's pro bono programs. Such a committee will be composed of immigration judges, representatives of the Board, other EOIR personnel, representatives of the Department of Homeland Security and the private immigration bar, and any other participants whom the Director deems necessary.

I'd say that this reform is way overdue, when you consider that having an attorney greatly improves an applicant's chances of being granted asylum. (As seen in the table at right, asylum is denied 93% of the time if there's no attorney, but only 64% of the time if there is.)

And speaking of asylum, this is my personal favorite...

8. Analysis and Recommendations Regarding Disparities in Asylum Grant Rates

A recent study has highlighted apparent disparities among immigration judges in asylum grant rates. The Director of EOIR, in consultation with the Acting Chief Immigration Judge, will review this study and provide an analysis and, if appropriate, recommendations to the Deputy Attorney General with respect to this issue.

I'm sure it's entirely coincidental that this report came out just 10 days after the TRAC report on Immigration Judges to which this item clearly refers.

There's a lot more in there, and as I'm not an immigration policy expert, I'll leave it to others to comment about whether or not this represents a serious effort at real reform or just more smoke and mirrors. What I feel is important, however, is that this administration is clearly scrambling to do damage control on what was supposed to have been a no-brainer Republican "divide and conquer" campaign strategy. By continuing to hammer on this issue, I hope that progressives can blunt the power of conservative xenophobia.

Immigration Asylum Denial Rates All Over the Map

Asylum is a legal status sought by a non-citizen who claims to be afraid of harm in their home country. The process by which asylum is granted or denied is very complicated, but sometimes it all comes down to whether an immigration judge says yes or no. The average rate of denial is about 65%, but according to a recent study on immigration judges...

• Denial rates for the 208 judges ranged from a low of 10% to a high of 98%.


• Expressed another way, the data showed that while ten percent of the judges examined denied asylum in 86% or more of their decisions, another ten percent of the judges had denied asylum in only 34%.

Why so much disparity?

This report goes into detail in order to document and understand the sources of the disparities in denial rates. Ultimately, it comes down to the individual judge: even similar cases in similar jurisdictions yield widely varying denial rates.

Something to keep in mind, however, is that these immigration "judges" are actually employees of the Justice Department, some of whom were previously employed as DHS prosecutors. While the report doesn't actually examine whether there is any correlation between previous employment and denial rates, it does quote Attorney General Alberto Gonzales as saying that there were some whose conduct

"can aptly be described as intemperate or even abusive and whose work must improve."

Gonzales has launched a top-level investigation, but I fear I've gotten so cynical that I suspect all the investigation will serve to do is allow the administration to say "we don't comment about matters relating to an ongoing investigation." In fact, both the Justice Department and its branch which oversees the Immigration Courts (the Executive Office for Immigration Review, or EOIR) have in fact declined to comment on the report, EOIR citing a strict "no interview" policy.

Glass one-third empty, or two-thirds full?

Wingers like Debbie Schlussel might find some cause for joy in these numbers, stating

And Judge Mahlon Hanson of Miami topped the list, rejecting 96.7% of the 1,118 claims for asylum before him. That's our kind of judge.

...

We're glad to see that judges like Mahlon Hanson exist and wich there were more. Unfortunately, there are also immigration judges like New York Judge Margaret McManus, who rejected only 9.8% of 1,638 cases before her. That means she let almost 1,500 of these aliens in. Sucker.

But ultimately, conservatives and progressives alike tend to be dismayed at the pronounced lack of uniformity with which judges grant or deny asylum.

Details, details
As part of this study, TRAC has also compiled individual reports on over 200 judges, with specific attention to the nature of their asylum cases and decisions. So, for example, you can find out that Schlussel's hero Judge Hanson was an INS lawyer for 8 years before being appointed an immigration judge, whereas Judge McManus' background includes a stint with the Legal Aid Society's Immigration Unit.

Why should we care?

Conservatives are using immigration as a tool for rallying their base. I believe it's important for progressives to understand the issues behind the anti-immigrant hysteria, and be able to counter the kind of "immigration reform" being put forward by xenophobes like Schlussel and Pat Buchanan.