A Faux Analysis of Immigration Judge Asylum Cases by GAO

By Dan Cadman on December 5, 2016

The Government Accountability Office (GAO) — the congressional "fraud, waste, and abuse" watchdog — published a report last month entitled "Asylum: Variation Exists in Outcomes of Applications Across Immigration Courts and Judges". The report details the significant difference in approval and denial rates among immigration judges for asylum claims filed before them in immigration court by aliens seeking to avoid removal.

Speaking of waste, it's not clear to me why GAO felt the need to spend taxpayer dollars on the analysis, because this data is collected and reported on regularly by Syracuse University's Transactional Records Access Clearinghouse (TRAC). In fact, four days prior to the November 14 release of the GAO report, TRAC had done just that.

Both the GAO and TRAC reports clearly reflect the vast disparity between judges, and between certain regions of the country. New York City, for example, is extremely liberal in granting asylum, whereas Omaha and Atlanta are quite the reverse.

In its analysis, GAO chose to duck a straightforward examination of the differences among judges or regions. Instead, it says this:

EOIR [the Executive Office for Immigration Review; a Justice Department agency which houses the immigration courts] provides legal resources to targeted populations, including asylum applicants, through the Legal Orientation Program (LOP) and Legal Orientation Program for Custodians of Unaccompanied Alien Children (LOPC). EOIR and its contractor use LOP and LOPC site visits, monthly conference calls, and quarterly reports to monitor these programs. However, EOIR has not established performance measures, consistent with principles outlined in the GPRA Modernization Act of 2010, to determine whether these programs are having a measurable impact in meeting program objectives. Developing and implementing performance measures, including establishing a baseline, to determine whether LOP and LOPC are having a measurable impact would better position EOIR to make any adjustments necessary to improve the programs' performance.


What are we to make of this?

In the first place, I often find myself thinking that EOIR is treading close to the line of violating federal law by hosting these programs, because Section 292 of the Immigration and Nationality Act (codified at 8 U.S.C. § 1362) says this: "In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose." (Emphasis added.)

Secondly, though, one might construe GAO's statement as subtly suggesting that if only the contractors providing legal resources to aliens were better at coaching them in what to say (at least in those areas where denial rates are high), the approval rates might look more uniformly high across the country. I hope this is not what they intended. But if it isn't what GAO was implying, then perhaps I'm being deeply obtuse — I always allow for that possibility — and someone needs to sit me down and patiently explain what "legal orientation resources" could possibly have to do with the disturbing disparity in immigration judge decision-making where asylum claims are concerned, and why therefore the GAO recommendation is in any way relevant. Absent a cogent explanation, I remain unconvinced, and I'm not persuaded that moving approval rates up in places like Atlanta or Omaha is the answer at all. Perhaps the immigration courts in New York are the ones that are out of line with their exceptionally high rate of approvals.

Given the seriousness of the subject matter and the magnitude of the rate discrepancies, which aren't readily explicable, one might have expected an in-depth analysis that would shed light on the matter. For instance: Are there notable difference among the approval/denial rates of immigration judges depending on whether they were appointed out of the private immigration bar vs. from the ranks of former prosecutors and trial attorneys? Are the disparities due to differences in the nationalities presenting themselves before the various judges and courts? Do judges who have been on the bench significantly longer rule differently than new judges?

One can think of several other questions in addition to these few that might have merited examination. We got none of that from this "audit" report.

Because GAO is an arm of Congress, as an organization it is extremely careful in its reporting not to reflect views that could be interpreted as partisan in nature. Sometimes, though, the effort to avoid stepping into this trap results in reports or recommendations that could be described charitably as pulling punches, and uncharitably as showing the flexibility of the "human pretzel" at the circus sideshow tent. I'll leave the reader to decide how to characterize this report.