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  • Article: Lives In The Balance By David L. Cleveland



    November 13, 2014

    Three law school professors have published a book about asylum adjudication: Lives in the Balance: Asylum Adjudication by the Department of Homeland Security, by Andrew I. Schoenholtz, Philip G. Schrag, and Jaya Ramji-Nogales [New York University Press, 2014].

    This 271-page book analyzes and comments upon a database of over 380,000 asylum cases decided by INS and DHS between October 1996 and June 2009. It also contains the results of confidential interviews with frontline officers and supervisors from eight regional offices.

    “39 percent of asylum officers say they rush through their work”

    This assertion, at note 37, page 231, is confirmed by a GAO Asylum Study, which uses the same phrase: the officers “rush through their work.”

    Officer’s work under time pressure: they are to spend only four hours per case. They must perform background security checks via FBI and other databases; check fingerprints, and verify the applicant’s immigration history, including Department of State applications. Then, the officer reads the application.

    “Officers usually have an hour or less to read an application or otherwise prepare for the interview.” [Page 10].

    If the applicant has a spouse and children over the age of 14 present at the interview, the officer must “run the whole battery of background checks on those individuals and that takes time….” [Pages 122-23]. So, if the officer has a “family pack of four, he’s usually starting the interview late or if he’s starting on time, he’s likely to be less prepared.” Id.

    The officer may do research on the country. The officer then writes an Assessment, granting or referring the case. The supervisor may discuss the case with the officer, and demand a re-write. After the supervisor acquiesces, the officer does some clerical tasks to send the case onward.

    Wide disparities in adjudication across the eight asylum offices

    Concerning applicants from countries “with the most abusive human rights conditions,” there was a marked difference between the grant rates of the eight regional offices. Officers in Newark granted such cases 32 percent of the time, while the grant rate in San Francisco was 82 percent. [Page145].

    Concerning the grant rate for certain individual countries, the disparity among the eight offices was “disturbing,” according to the authors.

    Indonesians won 20% of the time in Newark, but 41% in Arlington.

    Ethiopians won 57% of the time in Houston, but 81% in San Francisco.

    Somalis won 34% of the time in Chicago, but 70% in Arlington, and 89% San Francisco.

    Russians won 28% of the time in New York, but 65% in San Francisco.

    Colombians won 36% in Houston, but 55% in Arlington.

    Wide disparities in adjudication within the eight asylum offices

    Concerning all cases adjudicated:

    In Newark, one officer granted 2%; another 93%!
    In Chicago, one officer granted 18%; another 62 %.
    In New York, one officer granted 11%; another 65%.

    Concerning the same country:

    In San Francisco, concerning applicants from India, one officer granted 6%; another granted 91%.
    In Miami, concerning applicants from Haiti, one officer granted 5%; another granted 85%.
    In New York, concerning applicants from China, one officer granted 2%; another 89%.

    The supervisors are an important element in these disparities

    Many officers told the professors that the identity of the supervisory was an important element in decision making. Unfortunately, the DHS does not code for the supervisor who reviews the case. The professors opined that the DHS should do this [Page 222].

    Asylum officers are human beings

    One officer told the professors that officers who had been INS inspectors or border patrol agents have a certain “mind-set,” resulting on lower grant rates. “Of course there are also people who don’t pay attention, and grant everything. That’s just as bad.” [Page 179].

    One officer admitted that when female applicants “burst into tears,” it affects his emotions. [Page 124]. A supervisor, who at times initially refused to acquiesce in the grant of a female applicant, stated his officers would resist, saying “oh my goodness, if you could have just seen this person, she was so credible, she was crying about this.” [Page 125]. One officer said it “can be very persuasive if they have a cute son or daughter.”[Page 122].

    One officer, who had become a supervisor, stated that concerning one woman applicant from Afghanistan, “I was going to grant her even if her testimony completely fell apart, because you just know about what it’s like to be a female in those countries.” [Page 113].

    How much and what kind of documentation do officers want to see?

    Officers opined that with the advent of widespread access to the Internet, pro se applications were “much better prepared” than in former years. Now, most such applicants now present corroboration “at least an inch thick.”[Page 135]. On the other hand, concerning Chinese cases, one cynical officer said, “They have learned to keep the case simple, with no documents that can reveal a fraud.” [Page 190].

    Many other subjects were discussed by the professors

    The professors also discussed the impact of the one-year deadline, the effects of the 9/11 terrorist attacks, the impact of representation, and various characteristics of the officers. The book includes discussions of statistics, mentioning the chi-square test, and “regression analysis.”

    My conclusions and suggestions

      1. If the asylum officer “has less than one hour “ to read the application, how thick should it be? How many pages can an officer, or will an officer, read in a one-hour time period? But, even if the officer does not actually read each page, does the officer want to see lots of pages?

    My conclusion is: attach a two or three page declaration to the application, setting out the harm suffered by the applicant in clear terms. If the client suffered a particularly severe trauma, such as rape or FGM, then attach another, five-page declaration about that.

    I believe the officers like to see lots of pages about country conditions, even if they do not read them. That would make them feel more confident in granting a case, and in resisting a supervisor who urges a different result.

      2. The DHS should track what happens to rejected applicants who have hearings in immigration court. What per cent of the time does an immigration judge [IJ] disagree with an officer?

    The identity and grant-rate of each supervisor should be tracked.
    What percent of time does an IJ disagree with a supervisor?

    The director of each asylum office should examine what her office has been doing, what IJs do with her cases, and publish a report:
    -does one officer grant 5% of cases, while another officer grants 50%?
    -does one officer get reversed by IJs 10% of the time, while another is reversed 90% of the time?
    -does one supervisor grant 5% of cases, while another grants 50%?
    -does one supervisor get reversed by IJs 10% of the time, while another is reversed 90% of the time?

    The head of the national asylum office should publish an annual report, summarizing and commenting upon each regional office.

    About The Author

    David L. Cleveland is a staff attorney at Catholic Charities of Washington DC. He is a graduate of the University of Rochester and of Case Western Reserve University School of Law. After being a college instructor in Indonesia for three years, David was a defense attorney for the District of Columbia, where he conducted over 40 civil jury trials. He joined Catholic Charities of Washington DC in 1998, specializing in asylum. In 2004, he was selected out of 275,000 candidates to be the "National Catholic Charities Volunteer of the Year." He served as the AILA representative to the US-CIS Asylum Office from 2003-2006; and as the Chair of the AILA Asylum Committee from 2004-2005. Articles and chapters by David have been published by AILA, Bender's Immigration Bulletin, and ILW.COM.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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