May 31, 2007

If you're seeking asylum, try to seek it in San Francisco.

Not Atlanta. Or at least New York. And avoid Detroit.


The Drill SGT said...

I read it as a typical NYT slanted piece. A couple of examples:

1. Appearance of cherry picking stats. The study ran from 98-05. An unbiased article would seem to choose either a 98 start date for comparisions or a 2001 (Bush start) as the basis. But here, we go with 2001 in the first example, then switch to 2003 for the second, which leads me to believe that asylum grants actually went up over 98-05 and 01-05, which is why we went with 03-05The study looked at 76,000 decisions by the appeals board from 1998 through 2005... Asylum applicants who were represented by lawyers received favorable appeals decisions from the board in 43 percent of cases in 2001, the year before the changes took effect. By 2005, asylum seekers with lawyers won their appeals in 13 percent of cases....snip...
Over all, the number of people winning asylum in the United States has declined, dropping by about 12 percent from 28,684 in 2003 to 25,257 in 2005, the last year when complete figures are available.

2. Completely irrelevant linkages Ms. Goodling testified last week that she had “crossed the line” in applying political considerations to candidates for nonpartisan legal jobs. Immigration judges are appointed by the attorney general, and 49 of 226 current judges were appointed during the tenure of Mr. Gonzales. for better or worse, judges appointed by the AG or President are political. this quote was a bogus linkage trying to make it seem like Gonzales did something wrong by appointing folks that would enforce immigration laws. One bets that many of those female judges who had previously worked for organizations that defended the rights of immigrants or the poor were political decisions by Clinton

Richard Dolan said...

The problem -- similar cases being decided very differently -- has plagued other areas of the law. The experience with efforts at reform in those areas likely provides a pretty good prediction of the results that similar efforts at reform would generate in immigration cases. The two most comparable areas where such reforms were adopted, expressly for the purpose of reducing disparities in outcomes, involved sentencing in federal criminal cases and disability determinations in Social Security cases. The solution to the disparity problem in both of those instances was the elimination of discretion in the decision-maker (US district judge for sentences, and ALJ for Social Security cases) by the adoption of fairly rigid decision-directing matrices.

Today sentences in federal criminal cases are governed by detailed calculations of the defendant's "guidelines score," determined by applying the sentencing guidelines. Among other things, the guidelines provide a 2 point "bonus" for "acceptance of responsibility" (= pleading guilty); increase of decrease the "score" depending on the amount of the "loss" and the defendant's role in directing the criminal activity, etc. (The "acceptance of responsibility" bonus has become a powerful factor in decreasing the frequency with which federal criminal cases are tried rather than resolved by a plea.) Indeed, negotiations with the prosecutor over the guidelines "score" and what position the prosecutor will take on it, are one of the most important aspects today of a lawyer's representation of a federal criminal defendant. The result of the adoption of the guidelines system has been much greater uniformity in federal sentences (the intended objective). But the proponents of more uniformity did not count on another consequence of the "reform": since the adoption of the guidelines, federal sentences are much harsher overall, and have resulted in much longer periods of incarceration and a significantly increased prison population overall.

It's easy to see how the same "solution" could be imposed to deal with the disparities in the outcomes of these immigration cases. And no other solution seems available, if the problem is defined as the disparity of results as reported in this article. What is more difficult to see are the unintended consequences of removing discretion and replacing it with a decision-directing matrix. I suspect that the net result, like the one generated by the sentencing guidelines, would be more uniformity but also more harshness in immigration cases generally.

PatCA said...

A disparity is only bad if you think the goal of asylum hearings is to grant asylum to all who ask.

I'm sure that verdicts for any civil claim vary from one jurisdiction to another. Is that variety significant, or part of the vagary of human attempts at justice?

I would suppose a google search would tell me that these three lawyers are immigration advocates. I know...let's do away with the asylum courts and just let everybody in!

Thorley Winston said...

I agree with Richard Dolan. The “disparities” are probably the result of judicial discretion and if federal sentencing guidelines are any indication, the price of ending the “disparities” and getting a more uniform system of results could be even fewer requests for asylum being granted.

Revenant said...

One bets that many of those female judges who had previously worked for organizations that defended the rights of immigrants or the poor were political decisions by Clinton

It is arguable that Clinton was tougher on immigration than Bush is. Clinton just refused to enforce the immigration laws; Bush is actively working to reward those who ignore them. I'm sad to say it, but as a person concerned about illegal immigration I'm forced to wish the Bush Administration had appointed *fewer* judges. Its a damned sorry state of affairs when a Democrat looks like the lesser of two immigration evils.

Anyway, I don't see the article as being a standard NYT lefty hit piece; it draws attention to the fact that the courts -- which are about to get flooded with millions of new cases -- are already total basket cases.