"In the world of asylum adjudication," the authors write, "there is remarkable variation in decision making from one official to the next, from one office to the next, from one region to the next." It's all luck of the draw, and in one-witness cases without any physical evidence — as most asylum decisions are — much depends on a judge's opinion of a country's political climate, and how he reads the latest State Department memos.
That study also examined judges' personal backgrounds, and found that ones who'd worked for legal aid groups or in private practice were more generous with asylum seekers than those who'd begun as government prosecutors. Someone seeking asylum from Mexico is less likely to be shipped back home if he happens to land a more compassionate judge.
While most immigration judges in Texas denied about 75 percent of the claims they heard from 2001 to 2006 (from all countries), according to the Transactional Records Access Clearinghouse at Syracuse University, Houston judge Robert Brown granted asylum 40 percent of the time. William Abbott, one of El Paso's four immigration judges, was actually one of the most lenient in the country, granting asylum to 57 percent of the applicants who came before him. Dallas' Deitrich Sims, on the other hand, has built a reputation as an asylum hard-ass, denying 85 percent of the claims he heard.
Asylum cases are some of the toughest an immigration judge can pull, with so much to sort through on the way to determining if an applicant's story, often told through a translator, is true and includes "credible fear."
Even when they get the facts straight, Marks says, judges forced to work such heavy caseloads may not have the time to give asylum-seekers the impression they've gotten a fair shake — which, she says, compounds the problem by increasing the burden on appeals courts.
"If you came to me with your situation, I could analyze it and in two minutes know, 'Oh, he's not going to qualify,'" Marks says. If, she says, "you have 500 things that you want to tell me that you think are going to be relevant, unless I listen to at least 400 of them, you don't think I've really heard your case. ...Even though I may be absolutely right, you're going to say, 'Oh that judge wasn't listening to me. I had all these other things I want to tell her.' So you're going to take an appeal."
Though so many complex questions are left to the judge's discretion, the law says cases must be decided within 180 days after a claim is filed. Marks says immigration judges have been incredibly overworked in the last few years, as money poured into the U.S. Border Patrol and ICE hasn't been matched by an investment in extra judges to handle the resulting caseload.
Associate Deputy Attorney General Juan Osuna told Congress in June that the more than 275,000 cases before the immigration courts are "the largest number the system has ever received." In 2009 alone, 237 judges decided more than 390,000 cases, and Osuna said he expects even more this year. To help ease the burden, the DOJ hopes to hire 47 more immigration judges by the end of this year.
When deportation is as good as a death sentence, the stakes don't get any higher. But the courtrooms where an asylum-seeker makes his case are stripped down, with no bailiff or court reporter. Judges operate their own digital recorders, if they're lucky enough to have them. Now more than ever since her appointment in 1987, Marks says, "Immigration judges are doing death penalty cases in traffic court settings."
Immigration attorneys believe judges are exhausted, and tired of trying to be the nice guy.
"It's called 'compassion fatigue,'" says attorney Carlos Spector. "After a while, they say, 'So what? How is your case different? We don't want to hear about horrible country conditions, we want to hear about you and who is doing this to you.' And they are very tough on what evidence gets in."
Working through their heavy caseloads, judges hear all manner of horrors each and every day. Kidnappings and threats from gangs of gunmen take on the regularity of someone caught speeding through a school zone.
"Immigration judges demonstrate a higher level of on-the-job stress and burnout than prison wardens or busy hospital doctors," Marks says, quoting a 2009 study from the University of California, San Francisco. Along with the daily horror stories judges hear from refugees and asylum applicants, "It takes its toll just on a personal level; they don't have the time to calmly deliberate over a decision or do the research that is needed," Marks says. "If you don't have that opportunity, then it isn't done right."