With Fear, Favor, and Flawed Analysis: Decision-Making in the U.S, Immigration Courts

Authors

Karen Musalo, University of California Law San FranciscoFollow
Anna O. Law, CUNY Brooklyn CollegeFollow
Annie P. Daher, University of California Law San FranciscoFollow
Katharine Donato, Georgetown UniversityFollow
Chelsea Meinders, Georgetown UniversityFollow

Document Type

Article

Publication Date

Winter 11-24-2024

Abstract

Immigration judges (IJs), housed within the Executive Office for Immigration Review within the Department of Justice (DOJ), make decisions in asylum and withholding claims, which are life or death matters. And although their title is “judge,” IJs are DOJ attorneys who lack independence and are par- ticularly susceptible to political pressures. Federal court judges and scholars alike have criticized the quality and fairness of IJ decision-making, and many studies have been carried out to better understand the factors that impact it. The prior studies have relied principally on quantitative data because IJ decisions are not publicly available or searchable in any existing database. The authors of this study had unprecedented access to more than five hundred IJ decisions, allowing for both a quantitative and qualitative analysis. Our findings were consistent with other studies in noting that IJ experience and gender made a difference in case outcomes, with male IJs and IJs with enforcement backgrounds denying protection at higher rates. We were able to identify other significant trends as well, including that the most common reasons why IJs denied protection to credible asylum seekers were their findings that they failed to meet the extreme- ly stringent requirements of two elements of the refugee definition—elements which arguably are overly restrictive and inconsistent with international norms. We also observed patterns of incompetence and bias among these decisions. This Article recommends several policy reforms to address the shortcomings we identify, among them: (1) the creation of Article I immigration courts, (2) im- provement of IJ competence through more stringent hiring standards and con- tinuing education, (3) increased diversity of IJs based on employment experi- ence, (4) reduced deference to the Board of Immigration Appeals in reviewing cases, and (5) allocating additional resources to immigration adjudication.

Comments

The article is from Boston College Law Review, Vol 65, Issue 8 (Nov. 26-2024), pgs 2743-2800