Vetted Judges More Likely to Reject Asylum Bids
By Charlie Savage
The New York Times, August 24, 2008
Washington, DC — Immigrants seeking asylum in the United States have been disproportionately rejected by judges whom the Bush administration chose using a conservative political litmus test, according to an analysis of Justice Department data.
The analysis suggests that the effects of a patronage-style selection process for immigration judges used for three years before it was abandoned as illegal are still being felt by scores of immigrants whose fates are determined by the judges installed in that period.
The data focuses on 16 judges who were vetted for political affiliation before being hired and have since ruled on at least 100 cases each.
Comparison of their records to others in the same cities shows that as a group they ruled against asylum-seekers significantly more often than colleagues who were appointed, as the law requires, under politically neutral rules.
Critics of the politicization of the immigration bench say it is not enough that in 2007 the department stopped using illegal hiring procedures. The fact that many of the politically selected judges remain in power, they say, continues to undermine the perceived fairness of hearings for immigrants fighting deportation.
The immigration court 'is now the seat of individuals who were appointed illegally, and that means that in the minds of many people the court symbolizes illegality,' said Bruce Einhorn, a Pepperdine University law professor who was an immigration judge from 1990 until he retired last year.
Peter A. Carr, a Justice Department spokesman, wrote in an e-mailed response to questions, 'The fact that the process was flawed does not mean that the immigration judges selected through that process are unfit to serve.'
The Bush administration has been accused by Democrats and other critics of improperly bringing politics into the business of federal agencies like the Environmental Protection Agency, the General Services Administration and, most notably, the Justice Department, which has been reeling under accusations that officials sought to politicize the apparatus of law enforcement.
This summer, the departments inspector general released two scathing reports confirming that for several years administration officials illegally took political affiliation into account when hiring recent law school graduates, summer associates, some assistant prosecutors and immigration judges.
The report covering the selection of immigration judges primarily blamed Kyle Sampson, a former top aide to the attorney general, and two former White House liaisons to the department, Monica M. Goodling and Jan Williams, for the practice.
When vetting applicants, for example, Ms. Goodling asked them questions about their political beliefs and researched their campaign contributions. She also conducted Internet searches of their names and words like 'asylum,' 'immigrant' and 'border,' as well as partisan terms, like abortion, Iraq, gay and the names of political figures, to determine their views, the report said. But it presented no evidence that her efforts were connected to any official policy goal of restricting asylum.
The White House has said it never ordered political hiring of civil servants.
The Justice Department employs more than 200 immigration judges in more than 50 courts around the country. They conduct hearings for noncitizens asking not to be deported, including asylum-seekers who say they fear religious or political persecution.
Although called 'judges,' the hearing examiners are not confirmed by the Senate for life; they are covered by federal civil-service laws, which stipulate that they must be hired on the basis of merit under politically neutral criteria. But in early 2004, political appointees took control of hiring the judges away from career professionals and essentially began treating the positions which carry salaries of $104,300 to $158,500 as patronage jobs. They screened out liberals and Democrats, while steering openings to White House-vetted 'Bush loyalists' and other job-seekers vouched for by Republican political appointees.
Among the judges selected were a member of the 2000 Bush-Cheney Florida recount team, people who worked for Republican lawmakers and a former Republican state official in Illinois backed by Karl Rove, at the time the White House political adviser.
In 2007, after the Civil Division questioned the legality of the process, the administration changed back to a nonpolitical selection method handled by career professionals.
But in the interim 31 immigration judges had been appointed by the flawed process. The Justice Department did not challenge a list of those judges submitted by The New York Times.
Of that group, 28 remain judges, two left during a probationary period, and one was recently promoted by Attorney General Michael B. Mukasey to the Board of Immigration Appeals, the panel that hears appeals of rulings.
The inspector generals report did not evaluate how the politically selected judges have used their power. The additional data comes from Transactional Records Access Clearinghouse, a research group at Syracuse University that has analyzed Justice Department records from the 2002 fiscal year to 2007 and profiled immigration judges.
Of the 31 politically selected judges, 16 compiled enough of a record to allow statistical analysis. Nine rejected applicants at a significantly higher rate than other local colleagues, while three were more lenient. Four others decided cases in line with the local averages, an analysis by The Times showed.
And when asylum denial rates of all judges across the nation were ranked in comparison to their local peers, 8 of the 16 scored above the 70th percentile meaning they have been among the judges least likely to grant asylum.
Together, these 16 judges handled 5,031 cases and had a combined denial rate of 66.3 percent 6.6 percentage points greater than their collective peers. This translates into an extra 157 asylum cases that resulted in denial.
In Houston, for example, Judge Chris Brisack denied asylum in 90.7 percent of his cases, while other judges in that city averaged a 79.1 percent denial rate. Judge Brisack, a former Republican county chairman who also works in the oil business, did not return a call.
Garry Malphrus, the judge later elevated to the Board of Immigration Appeals, denied asylum 66.9 percent of the time, compared with an average denial rate of 58.3 percent among other judges at his court in Arlington, Va. Judge Malphrus, a former associate director of the White House Domestic Policy Council, did not return a call.
The highest gap belonged to Judge Earle Wilson. He worked first in Miami, where he denied 88.1 percent of asylum requests 9.8 percentage points higher than the local average. He then moved to Orlando, where his denial rate was 80.3 percent 29.2 percentage points higher than peers.
Judge Wilson, who previously worked in the Office of Immigration Litigation at the Justice Department, said he was not allowed to give interviews.
Still, there were exceptions. Three of the politically selected judges granted asylum significantly more frequently than peers. Most notably, Judge Glen Bower of Chicago denied only 16 percent of asylum requests 47 percentage points lower than the city average. Judge Bower, the applicant backed by Mr. Rove, did not return a call.
The analysis excluded judges for whom insufficient data was available to produce meaningful results.
Charles H. Kuck, the president of the American Immigration Lawyers Association, said all the judges, regardless of their qualifications, should reapply for their jobs alongside other applicants.
'Any judge who was appointed through a process that was not impartial should step down and go through the process again to make sure they should be reappointed,' Mr. Kuck said.
But Glenn Fine, the Justice Department inspector general, said at a July 30 Senate Judiciary Committee hearing on his investigation that 'it would be difficult if not impossible' to decide whether a sitting judge was qualified.
Mr. Fine also noted that the judges could not be fired because they were now protected by civil-service statutes the same laws violated when they were selected.
At that hearing, Senator Sheldon Whitehouse, Democrat of Rhode Island, expressed frustration about the lack of remedies.
'The so-called loyal Bushies that they stuffed into these positions will also have gotten away with it and will be there essentially indefinitely, protected by civil-service protections that they dont deserve,' Mr. Whitehouse said.
Stephen H. Legomsky, an immigration law professor at Washington University in St. Louis, said the attorney general should reassign the judges to nonadjudicatory positions at the same pay, which would not violate civil-service rules.
Dana Marks, an immigration judge in San Francisco and the president of the judges union, said her organization opposed reassigning its new members.
'We are confident that many of the people hired under this process are excellent judges,' said Judge Marks, who was appointed in 1987, 'and should not be penalized for having been hired under a process that they had no control over at the time, that some of them may not even have known was irregular or inappropriate.'
Temporarily reducing the number of judges might exacerbate an already crushing caseload.
Already, several immigration lawyers said they were considering invoking constitutional due-process rights to ask for new hearings for clients turned down by the politically selected judges, although people who have already been deported would most likely be ineligible for that.
Several law professors said they doubted such a potentially disruptive request would prevail. But regardless, they said, the recent disclosures have further tarnished the image of the immigration courts.
Last year, an academic study of 140,000 decisions over four years found sharp differences in the outcome of cases involving immigrants of the same nationality, even among judges in the same city.
The authors of the study, called 'Refugee Roulette,' concluded that the facts of a case may be less important in determining whether someone is deported than which judge hears the case.