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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 past 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 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 UC 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."
Says El Paso attorney Elvia Garcia, "Asylum is a human issue. We need to focus on what the United States actually stands for. Judges say their hands are tied, but I think they are afraid of political backlash."
Immigration judges work under the Executive Office for Immigration Review, which falls under the DOJ and the attorney general. This became well-known when Monica Goodling, once an aide to former Attorney General Alberto Gonzales, told Congress that she'd screened Bush-era judge appointees for political beliefs ahead of time, looking for judges who would shoot down asylum applications.
Speaking for the immigration judges' association before Congress in June, Marks joined the American Bar Association in recommending immigration judges get a special status "to guarantee decisional independence and insulation from retaliation"—a freedom judges today don't necessarily enjoy, given their place as employees of the Department of Justice who serve at the pleasure of the U.S. attorney general.
Statistically, Mexicans seeking asylum are almost certainly doomed. However, some applicants do prevail. A case originating in Brownsville offers a glimpse into the possible future of asylum law.
Jim, who did not want his name used for fear of reprisal, was a mechanic and a musician in Matamoros, Mexico, just on the other side of the Rio Grande. He had polio and lived at home with his mother. Their longtime neighbor was a notorious crime boss. One day, he asked Jim to store drugs and guns at their house, but Jim refused.
It didn't take long for the local police to show up on behalf of the drug lord, and after giving Jim a few warnings, a gang of drug traffickers and policemen broke into his home one night and kidnapped him at gunpoint.
They drove Jim to an open field and starting beating him with their fists. One man hammered Jim with a 2-foot-long metal pipe. Later that night, the men took Jim to the parking lot of the police station, where they forced him to call his family and demand $20,000 in ransom money. Then they handcuffed Jim and beat him some more before driving him home. He had 24 hours to come up with the cash or be killed.