Guest Blogger: Scott Rempell

Scott-RempellSoft Discretion in the Asylum Process

Asylum is technically discretionary. Even if an applicant can establish that he or she meets the legal definition of a refugee, an immigration judge can still deny the claim as a matter of discretion. In practice, however, an immigration judge almost never denies an asylum application that satisfies the legal requirements. Even though immigration judges rarely wield their discretionary authority overtly, they do not apply a set of facts to a legal standard in a vacuum. There are a number of factors that may influence whether a judge decides that an applicant has satisfied the legal definition of a refugee. Some of these factors are external and some are internal to the judges themselves.

One of the external factors is the relationship between the United States and the country from where the asylum applicant fled. For example, in the 1980s a civil war engulfed Guatemala. A significant number of Guatemalans fled to the United States to seek refuge. Many presented claims that seemed to provide a genuine basis for fearing that they would be persecuted if deported. However, from 1983 to 1986 immigration judges only granted such asylum applications about three percent of the time. Why was that? Well, consider the role of the United States in Guatemala at the time. The Reagan administration was essentially fighting a proxy war against certain communist countries, pumping large amounts of money into the Guatemalan government’s war effort against rebel groups believed to be supported by communist regimes. What message would it send if immigration judges were granting asylum on the basis of harm that could be attributed to American aid?

There was no official policy to deny such asylum claims. But it’s safe to say that the political realities of the situation contributed to the immigration judges’ assessment of the claim – even though the law is supposed to be “the law.” Just compare the low success rate of Guatemalan nationals with asylum applicants who fled countries with communist regimes in place during that time. The grant rate for asylum applicants from Czechoslovakia, for example, was around forty percent.

Another external consideration that may influence an immigration judge’s decision is how easy it would be for nationals of a country to travel to the United States. Immigration judges may worry that a grant of asylum could lead to thousands (or tens of thousands) of other nationals from that country traveling to the United States and filing similar claims. Thus, the risk of opening up the floodgates is greater for a grant of asylum to a Mexican national than for an asylum applicant from a country in Asia.

In addition to the external considerations that may factor into immigration judges’ decisions, judges have different internal beliefs about immigration issues (and judging in general) that could impact their decisions. Indeed, we all have unique experiences and beliefs that couch how we view the world, and judges are no different. There are extreme cases where judges’ immigration beliefs have overtly impacted the result of asylum claims. A study on asylum grant disparities published by the Stanford Law Review several years ago demonstrated this fairly well. When I was practicing at the Department of Justice, I would occasionally read a transcript of an immigration proceeding that clearly depicted a hostile immigration judge. In recent years, the Department of Justice has made efforts to reign in these outlier judges.

But aside from these extreme instances of overt bias (which I do not believe to be the norm), there are subtler ways in which individual beliefs and experiences can impact asylum decisions. One is in the area of credibility. Credibility determinations have to be legally justifiable, but there is a lot of wiggle room for an immigration judge. Does a failure to make eye contact signal a lie? What about a slight inconsistency between direct and cross-examination? What if an applicant testifies about a traumatic event that he failed to mention on his asylum application? When assessing the culmination of all the perceived deficiencies in a claim, reasonable minds may be able to come to different conclusions. And that is when a judge’s beliefs and knowledge-base can influence a decision.

Another example concerns the likelihood that a particular harm will take place in the future. Eligibility for asylum relief requires an applicant to establish a “well-founded fear” that he or she will be persecuted if deported. The exact meaning of “well-founded” is unclear, but the Supreme Court in dicta likened it to a ten percent chance. As with credibility determinations, there is certainly some room for interpretation when an immigration judge applies a set of facts to this legal standard. After all, who can really know with certainty the likelihood that an event will take place in the future on the other side of the globe?

The result of all these external and internal considerations is potentially inconsistent decisions based on similar facts. But I don’t want to give the impression that the success of an asylum claim is comparable to a game of roulette. This is certainly not the case. Some of the divergences in grant rates between nationals of different countries are based on legitimate distinctions in country conditions. And if you take a look at the asylum grant rates in recent years, it appears that they are actually trending higher.

As the above examples illustrate, asylum law is filled with competing considerations and internal tensions. I thought about these tensions quite a bit when I was litigating immigration cases at the Department of Justice, so much so that I decided to put pen to paper and write a novel that illustrated many of them in real-world circumstances. The novel is called Five Grounds and you can find more information about it here.

Scott Rempell is an Assistant Professor of Law at the South Texas College of Law in Houston.

Note: The opinions expressed in this piece are those of author and do not represent the opinions of Human Rights Initiative or any of their employees.

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