Pedro Miranda was an immigration judge in Miami for 19 years. Now in private practice in Hollywood, Florida, he always asks clients seeking political asylum in the United States one key question: “Who's your judge?”
“When they tell me who their judge is, I know within a margin of certainty whether it will be a difficult case, if it's a judge who is tolerant or not,” Miranda said.
Rasha Qumsiyeh, a lawyer in Fort Lauderdale, Florida, who specializes in immigration law, says he asks the same question of possible clients. And she has an explanation similar to Miranda's: “Depending on the judge, we know the judge will approve the case with a viable legal argument, and [we know] what kind of evidence we will need,” Qumsiyeh said.
The judge is key
The perceptions of these two attorneys is backed by hard evidence. Approvals of U.S. asylum requests increasingly depend on the judge hearing the case and can be influenced more by economic and political interests than by the dangers immigrants face or the laws involved, a Univision Noticias investigation showed.
That means that when a judge rejects a well-deserved asylum case, he or she may be condemning an immigrant to death.
The investigation showed that within the same immigration court there are large and growing gaps between the percentages of asylum applications approved by the most strict and the most benign judges – even though the cases are assigned at random, which should result in similar rates of approval.
The average gap between judges with the most and least rejections is 44 percentage points, according to data from Transactional Records Access Clearinghouse (TRAC Immigration), the organization that first reported the differences in 2004.
In Miami's immigration court, for example, Judge Teófilo Chapa denied 85 percent of the asylum petitions he decided from 2011 to 2016. At the other extreme, Judge Bruce Solow denied only 51 percent of the cases he heard, according to TRAC figures analyzed by Univision Noticias.
But that 34-point gap in Miami is low when compared to the 82-point gaps reported in the courts in San Francisco and Newark N.J., and the 75-point gap reported in the Los Angeles court.
Which judges have denied the most asylum cases, in which courts?
Select a state and court
92% of asylum cases in corte de ADELANTO were rejected.
Asylums rejected in the US (%)
Judge who rejected most cases
David H. Burke
The fewest rejections
Data from 2011 to 2016.
Data came from the last Transactional Records Access Clearinghouse (TRAC)'s asylums report. This organization -at Syracuse University- generates a report on each of the 268 immigration judges who have "decided at least 100 asylum cases" from 2011 to 2016. The dataset can be seen here.
Asylum petitions are assigned to judges randomly, so the mix of cases they handle should be similar. The rates of approvals and rejections should also be similar. But the actual numbers vary dramatically, and the gap is growing.
That's drawn harsh criticism. The U.S. Commission on International Religious Freedom warned in 2008 that the result of political asylum requests “seems to depend, in large measure, on luck, specifically the immigration judge assigned to the case.”
Former Attorney General Alberto Gonzalez played down the gaps recorded by TRAC in 2005 but acknowledged that “some judges can be described as temperamental or even abusive, and their work must improve.”
That same year, a judge in the 7th Circuit Court of Appeals in Chicago, Richard Posner, issued a strongly worded ruling that accused immigration judges of using too much discretion. He said the problem was systemic and not limited to a few judges.
The TRAC report “provides powerful evidence that the problem in immigration courts goes far beyond a few rotten apples – the judges individually criticized by Attorney General Gonzalez. The case-by-case study appears to document a bigger problem: old, systemic and broad weaknesses in the operation and management of those courts,” Posner ruled in the case of a Chinese immigrant who had been denied asylum.
The Justice Department reported that it has provided additional training for judges and taken steps to increase immigrants' legal awareness, according to a U.S. Government Accountability Office (GAO) report in 2016.
TRAC's data showed 327,569 asylum applications were decided in the last decade, with 40 percent of them denied.
Why are gaps a problem?
Despite complaints and the changes the Justice Department says it put in place, the gap between strict and more benevolent judges grew in the past six years. The average gap grew by almost one third, to 56 percentage points, according to a 2016 report, suggesting that the judges' personal beliefs are increasingly influencing their decisions on asylum requests.
Increase in judicial discretion
Over the last 6 years, the average difference in the percentage of rejected asylums in each court grew 27%. In other words, the judge’s decision rather than the law, increasingly weighed on the verdicts.
Asylum is a legal form of humanitarian protection offered by many countries, including the United States, to people who have fled their country because of threats to their physical integrity. People can apply for asylum any time, even after receiving deportation orders.
When a judge denies asylum to an immigrant who truly requires the protection, he or she may be issuing a death sentence because the person must return to his or her country and face the same threats, said San Francisco Judge Dana Leigh Marks, who has been president of the National Association of Immigration Judges for the past 30 years.
That's the case of Gladys Rivas, a Salvadoran woman who slipped into the United States to escape her husband, a convicted gang member who forced her to have sex in prison. “He threatened to kill our children,” she told Univision Noticias. She asked for asylum and won it in May. “He was going to kill my children. That's why I fled to the United States.”
The Center for Gender and Refugee Studies at the University of California Hastings has a long list of cases reflecting the drama faced by people who request asylum – women in Ethiopia, Kenya and Uganda fleeing genital mutilation and forced marriages; Central American women escaping from violent homes and trying to protect their children from gangs; Albanian teenagers rescued from prostitution and sex trafficking rings.
The increase in the judges' discretionary powers comes at a complicated time for immigrants. President Donald Trump's determination to halt immigration at all costs has led to a growing number of asylum applications – now at more than a record 600,000 – that gives judges even less time to consider their cases.
The number of rejections has been growing since 2011.
Growth in asylum rejections
After a notable drop, since 2012 the percentage of rejected asylum cases in US courts has been rising steadily.
There are other clear signs that the asylum system is not working properly. Several reports have indicated that the decision to grant or deny asylum can be affected by factors not linked to humanitarian considerations, such as the U.S. government's economic, diplomatic and security interests.
“In fact, national interest seems to weigh more than legal concerns, like the humanitarian needs of the applicants,” University of Texas Dallas researchers Linda Camp Keith and Jennifer S. Holmes wrote in 2009.
A study by Marc R. Rosenblum and Idean Salehyan argued that Salvadoran and Guatemalan asylum seekers have a low approval rate, 1 to 2 percent, because the U.S. government backs those governments and would find it contradictory to grant their citizens asylum.
Saturated immigration courts
July 2017 registered the largest number of cases pending in immigration courts since records began (1998).
Why this is happening
Judge Leigh Marks said that it's remains unclear why such large gaps exist.
“No other group of judges has been studied so carefully. We don't know if the disparities are the result of human nature or if there's something fundamentally wrong with the calculations,” said Leigh Marks. “It's not like asylum cases are mathematically comparable.”
“These cases are like puzzles with 1,000 pieces. We judges can have enough pieces, and we can see the image and say that asylum should be granted. Other times a piece may be missing and under the law we cannot grant asylum,” she said.
Univision tried to interview Miami judges to ask them to explain the differences, but they were not allowed to make statements to news media.
Univision did manage to interview two retired Miami judges: Mahlon Hanson, who had the highest percentage of rejections before he left the bench in 2010; and Pedro Miranda, a Puerto Rican who had the lowest rate of rejections at 45.2 percent and is now the lawyer who firsts asks clients for the names of their judges.
Hanson, who served on the bench for 23 years, could be considered a “purist.” When asked in a phone interview about the gap between him and Miranda, he denied it could be due to personal or ideological criteria.
“There is no individual discretion when a judge rules on asylum. Of course we make value judgments. We judge the credibility. But we apply the law, I hope, in a consistent form,” he said.
He added that the judges' decisions must also be justified. “We have to dissect the facts and the applicable law and how we apply them, and justify our rating of the credibility of the evidence, and whether it's credible given the conditions in the country of origin,” he said.
Then why are there such large differences?
“The differences should not be result of the personal criteria of the judge, but how the law is applied,” Hanson said. He added that he handled many asylum bids by people in prison, which could explain part of the gap with other judges who did not focus on those criminal cases.
Nevertheless, sophisticated analyses that statistically rule out the impact of those factors continue to show the “judge effect” in the final results.
The most thorough study of the issue, carried out by the GAO using data from 2007 to 2014, concluded that only the judge could account for the 57-percentage point variation in asylums granted, regardless of factors such as whether the immigrant had a lawyer or was in prison.
Personal ideology and circumstances
The retired judges interviewed by Univision had something else in common: both had previously been prosecutors in the Justice Department's Immigration and Naturalization Service (INS) before it was folded into the Department of Homeland Security in 2003 – effectively putting it in charge of seeking the deportation of immigrants who break the law.
But their averages for rejecting asylum requests are as different as their politics and what they decide to do after retirement.
Miranda said it's obvious that the gap is the result of the judges' differing ideologies and use of their personal discretion.
“Obviously the difference is in the human element. There has to be a difference in the perception of the judge, and how strict he is with the evidence and the evaluation of the facts,” Miranda said.
“It's very difficult to … avoid a disparity. Obviously, there's education and courses for the judges, but the result of an asylum case is still a personal determination,” he added.
In contrast, Hanson does not speak Spanish and sits on the board of directors of the Immigration Law Institute, which “exists to defend the rights of individual Americans and their local communities from the harms and challenges posed by mass migration to the United States, both lawful and unlawful,” according to its website.
Hanson was also involved in a controversy when a legal magazine that was about to publish one of his articles suggested he change the words “illegal alien” for “undocumented immigrant.” Hanson noted that laws and regulations refer to “illegal alien” but agreed to remove the words from his text – though he refused to use “undocumented immigrant.”
Hanson did not respond to Univision questions about his political sympathies. But he emphasized in an e-mail that the “political and personal perspectives of an immigration judge are irrelevant to the manner in which he handles his hearings and makes rulings in immigration cases.”
Hanson said he believes that the Trump administration's immigration policies are appropriate, while Miranda completely disagrees.
“It's wrong. It's unfortunate for the people who are truly fleeing from difficult circumstances, dangerous situations,” said Miranda.
The judge said he had no problem accepting that much of the gap could be explained by the rigor that each judge uses when considering evidence of the dangers claimed by asylum seekers.
“I was not so strict with the evidence in order to confirm what they were telling me. But someone else who is more strict could demand other types of evidence,” Miranda said. “There are judges who ask for more, and if they don't have a certain kind of evidence they don't look sympathetically at the case.”
Univision also asked Miranda about which candidate he supported in the presidential election last year.
“Ay caramba!” he answered. “I would not want to reveal that, but I think that with a little bit of thought anyone would figure it out.”
Answers from the two judges does seem to support the argument that personal perspectives do indeed weigh on the destiny of people who apply for asylum. It is the judge, after all, who rules.