By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
Campbell, who has testified at asylum hearings, believes immigration judges just aren't listening.
"It reminds me of the Mexican judicial system," he says. "That is, I gave these very plausible arguments, and the prosecutor complimented me on my research, and then the guy was deported. It just doesn't matter what you say. So it's not a matter of evidence, which is most troubling in many ways."
From 2006 through 2008, there was a steady increase in the number of Mexican nationals applying for asylum, rising from 2,793 to 3,459. But in 2009, the number of applications decreased 19 percent, to just more than 2,800.
Many argue that the decline is exactly what the U.S. government wants.
"There is an institutionalized policy of discouraging Mexican applicants by prolonged detention and serious resistance by government attorneys in immigration court," says Spector. "They don't deal with these cases like any others. They are trying to keep their finger in the border dike for as long as they can, and they want to send a message that if you go to the U.S. for asylum, you're going to get fucked. You are going to be detained, and then denied. And it is clearly having an effect."
The unintended effect, however, may be the U.S. government's worst nightmare: additional illegal migration. The more often abused Mexican nationals are denied safe harbor, the more it makes sense for them to enter the country illegally, especially since remaining in Mexico may mean being murdered.
"Let's face it," says Campbell, "a lot of Mexicans have a naive vision of American justice. Even though they hate la migra, they think Mexico is a country of corruption, but walk across to the U.S., and everything works efficiently and fairly. And so they think, 'I'll do the right thing and apply for asylum.' And when they arrive, they're in for a rude awakening."
Judges defend the low number of successful asylum applications from Mexicans by saying the specifics of asylum law make it difficult for them to grant claims. Just as immigration attorneys struggle with the requirement that asylum seekers must fit into one of the protected social groups, they say, so do judges.
"It's trying to fit people into those categories that makes Mexican asylum cases so much tougher," says Dana Leigh Marks, the San Francisco-based president of the National Association of Immigration Judges.
No matter how much a judge might sympathize with an asylum-seeker's plight, she says, a very strict reading of the law wouldn't offer much cover to Mexicans fleeing drug violence. There's no handbook telling judges that police, informants or journalists fleeing Mexican drug violence constitute a "social group" under the law—it's up to each judge to decide.
As a former defense attorney, Marks is an anomaly among the country's 237 immigration judges. Most of her colleagues started out as U.S. Immigration and Customs Enforcement prosecutors. Asylum attorney Spector believes this is a major reason why judges handle Mexican asylum cases so severely. In El Paso, for instance, Spector says, three out of the four immigration judges are former federal prosecutors.
However, Marks says, "It's case by case—it's just not something that lends itself to mathematical certainty."
That flexibility can result in some incredible discrepancies in asylum decisions, as "Refugee Roulette," a 2007 study in the Stanford Law Review, made clear.
Three law professors studying four years of government data found that judges in the same district, deciding asylum cases from the same country, could turn up vastly different results: a judge in Los Angeles granted asylum to 9 percent of the Chinese applicants who came before him, while a colleague granted asylum to 81 percent of his Chinese applicants. Two judges in Miami differed on decisions regarding Colombian applicants: 5 percent for one, 88 percent for another.
"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 had 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."