Years of data from immigration courts around the United States and compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show that whether or not a person seeking asylum is granted that request depends more on where they live and appear before an immigration court judge than it does on the facts of the case.
The NBC Bay Area Investigative Unit closely tracked the asylum results at every U.S. immigration court over the past three years and found a wide variation in the number of asylum approvals depending upon the court; in some instances the rate varies as much as 75 percentage points.
From 2016 through the first part of 2018, immigration courts in Los Angeles and San Francisco consistently ranked in the nation’s top 15 courts when it comes to the number of asylum requests granted. Phoenix, Philadelphia, San Antonio, New York and Boston were also in the top 15 each year. Court data show each of those courts grants asylum requests more than 50 percent of the time.
On the opposite end of the spectrum, U.S. immigration courts that are vastly less likely to approve asylum petitions include Atlanta, Lumpkin, Georgia, Charlotte, Dallas and Houston. In some of those courts, asylum is granted around 20 percent of the time. In other jurisdictions, like the court in Lumpkin, judges grant asylum only 10 percent of the time.
This disparity has led many observers—from academic researchers, to judges, to the very lawyers appearing before the immigration court judges—to worry that political beliefs could be getting in the way of justice in America’s immigration courts.
“There's something going on that is very, very troubling,” said Karen Musalo, director at the Center for Gender and Refugee Studies at the UC Hastings School of Law in San Francisco. Musalo spent years studying these inconsistencies in asylum outcomes.
“I think there are a number of factors that contribute to these disparities. They have to do with both the selection process for the individual judges and what their backgrounds are and whether or not they're qualified (to serve as judges),” Musalo said.
“It has to do with a politicization of the selection process. It has to do with a lack of independence of these immigration judges,” she added.
U.S. Immigration Court judges are not part of the independent judiciary but, rather, are appointed and work for the Executive Office for Immigration Review (EOIR), which is an arm of the U.S. Department of Justice.
Congress’s own Government Accountability Office twice issued reports—in 2008 and 2016—that point out a “signification variation” in asylum cases. In its reports, the GAO called on Congress to fix the problem.
But so far, nothing has happened.
The gap in asylum outcomes can take a human toll. Take, for instance, the stories of Maria and Mariel, whose names have been changed to protect their privacy.
Both women fled Honduras after being repeatedly sexually assaulted since they were children.
“I’m afraid,” Maria said. “I was raped at the age of 8.”
Maria says the sexual assaults continued into her adulthood, including by a police officer who became the father of her child.
Maria fled Honduras for the United States seven years ago.
Mariel’s name and age may be different, but her story is eerily similar to Maria’s. She also fled Honduras to escape a lifetime of sexual assault that started when she was a child.
She came to the United States seeking refuge from a physically and sexually abusive relationship back home. Mariel says the man she was in a relationship with drank a lot and was aggressive.
“I’m afraid of him,” she said. “Psychologically, he had me. I do not know how to say it. He made me do what he wanted. He made me have sex with him when he wanted to. It was a nightmare. It could not be me. I did not have life.”
Mariel says she fled to the U.S. out of fear for her life, but she was forced to leave her young child behind. Mariel hasn’t seen her child in 18 years.
Though they endured similar horrors and fled the same country seeking protection, the women ended up in different locations once they arrived in the U.S.
Mariel came to the San Francisco Bay Area, where her request for asylum was granted by a U.S. immigration court judge.
Maria fled to Atlanta, where her request for asylum was denied. Her lawyers have appealed her case to higher U.S. immigration courts.
“It's a rough place to practice immigration law,” said Sarah Owings, one of Maria’s immigration attorneys in Atlanta.
“The bench can be a lot more hostile," she said. “The government is really interested in winning every case every time as opposed to sometimes, I think, doling out the most fair and correct administration of benefits.”
Hannah MacNorlin is another one of Maria’s attorneys. She says anti-immigrant sentiment in Atlanta plays a pivotal role in asylum outcomes there.
“The law is consistent across the country. It's the way it's being applied,” MacNorlin said. “It's the judges not following the law. It's the judges feeling like they can decide that they don't like this kind of asylum case, and so they're going to decide that the law doesn't apply.”
Paul Wickham Schmidt, a retired U.S. immigration judge, says the nation’s immigration court disparity is so wide that it can be explained only by personal bias creeping into judges’ decisions.
“If I were an immigrant, I'd rather be in California than in Atlanta, Georgia, any day,” he said. “Clearly, the attitudes of the judges and how they feel about asylum law has quite a bit to do with it,” Schmidt added.
The EOIR, the agency in charge of the immigration courts, declined NBC Bay Area's request for an interview on the subject. Kathryn Mattingly, an EOIR spokesperson, emailed a statement:
“Regarding your reference to TRAC data, please note that we do not comment on third-party analysis of EOIR data because the method another party may use to analyze the raw data may be different from the analytical techniques EOIR uses. When looking at this issue, it is important to note that each asylum case is unique, with its own set of facts, evidentiary factors, and circumstances. Asylum cases typically include complex legal and factual issues and EOIR immigration judges and Board of Immigration Appeals members review each one on a case-by-case basis, taking into consideration every factor allowable by law. It is also important to note that immigration courts in detained facilities typically have lower asylum grant rates because detained aliens with criminal convictions are not eligible for many forms of relief from removal. That all said, EOIR takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications. In addition, EOIR monitors immigration judge performance through an official performance work plan and evaluation process, as well as daily supervision of the courts by assistant chief immigration judges.”
Now that she’s been granted asylum, Mariel hopes to bring her child to live with her in the Bay Area. It’s a small ray of light in what has been a life riddled with dark times.
“Sometimes it seems like people don’t care about it,” she said. “We are human beings. We all deserve to live.”
Meanwhile, Maria and her attorneys are hoping an appellate court will see her case in a different light and render a different decision. Maria says she remains hopeful her daughter will still get a shot at a life in the United States.
“I came to this country to get away, because I thought that here they could do something for me,” Maria said. “[I want] to stay here with my daughter. I do not want the same things to happen to her that happened to me.”