Professional Documents
Culture Documents
xv
The determination whether to grant asylum to a person claiming a well-
founded fear of religious or political persecution in his native country—be it
China, Venezuela, Burma, Haiti, Iran, Sudan, Ethiopia, or any another country
with a poor human rights record—should not rest on the random assignment of
the case to a particular immigration judge, who may be predisposed to question
the veracity of any asylum applicant or who may lack adequate knowledge of the
applicant’s country. There is far too much at stake in these cases.
As one prominent judge noted, “[E]ach time we wrongly deny a meritorious
asylum application, concluding that an immigrant’s story is fabricated when, in
fact, it is real, we risk condemning an individual to persecution. . . . [W]e must
always remember the toll that is paid if and when we err.”1
Even if the Board of Immigration Appeals or a federal court of appeals rem-
edies the immigration judge’s error, a successful appeal—which can take years—
still comes at great cost to the refugee. In many cases, the appeal process pro-
longs the refugee’s detention in inappropriate conditions, with lack of access to
adequate medical and mental health care, and uncertainty about the future of the
refugee and the refugee’s family as well.
Relying on the availability of appeal is highly risky for the refugee. As the
authors confirm in this study, the likelihood of prevailing on an asylum claim
in immigration court correlates significantly with whether the refugee is fortu-
nate enough to be represented by counsel. Even if effective assistance of coun-
sel is obtained, the streamlined review process of the Board of Immigration
Appeals and the courts’ highly deferential standard of review make it likely that
the immigration judge’s faulty decision will be affirmed, even though the immi-
gration judge—giving in to the personal biases, attitudes, policies, or ideologies
described in this study—rested his adverse credibility determination on mis-
statements, arbitrary rejection of testimony, unsupported conjecture, speculative
conclusions, or inaccurate findings of fact. It is critical for the asylum officer
and immigration judge, who have the first look at the application, to get it right
by rigorously applying standardized norms. As the authors urge, the Depart-
ment of Justice must provide far greater resources and training for immigration
judges.
This book and its call for serious reform could not be more timely. In recent
years, the federal courts have grown increasingly frustrated with the poor quality
and arbitrary nature of decisions by immigration judges and the Board of Immi-
gration Appeals. Courts across the country have expressed their discontent as
well, emphasizing that “the adjudication of these cases at the administrative level
has fallen below the minimum standards of legal justice”2 and that some immi-
gration judges have failed to demonstrate the necessary judicial temperament,
neutrality, consistency, and professionalism.
xvii Foreword
Notes
1. Ming Shi Xue v. Bd. of Immig. Appeals, 439 F.3d 111, 113–14 (2d Cir. 2006) (Calabresi, J.).
2. Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005) (Posner, J.).
3. See Charlie Savage, Vetted Judges More Likely to Reject Asylum Bids, N.Y. Times, Aug. 24, 2008.