Foreword

T h e Un i t e d Stat e s has long stood tall in the world in its commitment to the protection of refugees. In the Refugee Act of 1980, Congress and the
administration reaffirmed our nation’s commitment to refugees by striking the
former discriminatory system that favored refugees from certain countries and
discouraged others from seeking safe haven in the United States because of geographical or ideological considerations. The Refugee Act also established for the
first time a uniform asylum program enabling refugees who are physically present in the United States to receive needed protection. Through these programs,
millions of the world’s persecuted have been given the opportunity to begin their
lives anew in safety and dignity.
By protecting refugees from persecution, we honor our nation’s finest traditions. But, as the information in this remarkable book makes clear, all is not well
in the current asylum system. In a thoroughly researched study, the authors lay
bare in painstaking detail the fact that many refugees are being turned away from
protection in this country for reasons unrelated to the merits of their individual
claims.
This important study demonstrates that in the current system, the decision
whether to permit a refugee to remain in the United States to avoid persecution in his native land is strongly affected by the immigration judge’s work experience, personal bias, gender, and lack of training; by the court to which the case is
assigned; and by whether the refugee is fortunate enough to have effective legal
representation. The authors describe, for example, how a woman fleeing persecution in Colombia would have an 88 percent chance of prevailing before one of the
judges in the Department of Justice’s Miami Immigration Court, but only a 5 percent chance before another judge in the same court. Similarly, one immigration
judge in a New York Immigration Court was found to be nineteen times more
likely to grant asylum to an Albanian applicant than another judge on the same
court. Such “refugee roulette” is unacceptable in a system that makes life-or-death
decisions for some for the world’s most vulnerable persons.
The authors are deeply committed to ensuring that our institutions that rule
on the merits of claims for refugee protection hold fast to basic principles of fundamental fairness. They give us an alarming portrait of the current system. It is
imperative to restore justice and integrity to our critical refugee protection programs.

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The determination whether to grant asylum to a person claiming a wellfounded fear of religious or political persecution in his native country—be it
China, Venezuela, Burma, Haiti, Iran, Sudan, Ethiopia, or any another country
with a poor human rights record—should not rest on the random assignment of
the case to a particular immigration judge, who may be predisposed to question
the veracity of any asylum applicant or who may lack adequate knowledge of the
applicant’s country. There is far too much at stake in these cases.
As one prominent judge noted, “[E]ach time we wrongly deny a meritorious
asylum application, concluding that an immigrant’s story is fabricated when, in
fact, it is real, we risk condemning an individual to persecution. . . . [W]e must
always remember the toll that is paid if and when we err.”1
Even if the Board of Immigration Appeals or a federal court of appeals remedies the immigration judge’s error, a successful appeal—which can take years—
still comes at great cost to the refugee. In many cases, the appeal process prolongs the refugee’s detention in inappropriate conditions, with lack of access to
adequate medical and mental health care, and uncertainty about the future of the
refugee and the refugee’s family as well.
Relying on the availability of appeal is highly risky for the refugee. As the
authors confirm in this study, the likelihood of prevailing on an asylum claim
in immigration court correlates significantly with whether the refugee is fortunate enough to be represented by counsel. Even if effective assistance of counsel is obtained, the streamlined review process of the Board of Immigration
Appeals and the courts’ highly deferential standard of review make it likely that
the immigration judge’s faulty decision will be affirmed, even though the immigration judge—giving in to the personal biases, attitudes, policies, or ideologies
described in this study—rested his adverse credibility determination on misstatements, arbitrary rejection of testimony, unsupported conjecture, speculative
conclusions, or inaccurate findings of fact. It is critical for the asylum officer
and immigration judge, who have the first look at the application, to get it right
by rigorously applying standardized norms. As the authors urge, the Department of Justice must provide far greater resources and training for immigration
judges.
This book and its call for serious reform could not be more timely. In recent
years, the federal courts have grown increasingly frustrated with the poor quality
and arbitrary nature of decisions by immigration judges and the Board of Immigration Appeals. Courts across the country have expressed their discontent as
well, emphasizing that “the adjudication of these cases at the administrative level
has fallen below the minimum standards of legal justice”2 and that some immigration judges have failed to demonstrate the necessary judicial temperament,
neutrality, consistency, and professionalism.

xvi Senator Edward M. Kennedy

In August 2006, Attorney General Alberto Gonzales proposed a number of
reforms in the immigration courts and the Board of Immigration Appeals, and
some progress has been made in their implementation. For example, Board members are now subject to performance appraisals, and procedural changes have
somewhat reduced the harmful effects of streamlining. The attorney general’s
commitment to improving the resources and training of immigration judges,
however, has not been fully realized, and the job performance of immigration
judges is still not subject to periodic review.
Compounding these failures, as the inspector general of the Department of
Justice reported in July 2008, the Department of Justice has politicized the process for selecting immigration judges. These judgeships are not, and have never
been, political positions. Yet, high-level officials of the department bypassed the
public competitive hiring process in favor of a process in which immigration
judges are selected not for their individual qualifications and experience but for
reasons of ideology and partisanship. Political affiliation trumped merit, with
harsh consequences for immigrants and refugees whose lives hang in the balance
in proceedings decided by these inexpert judges.
Immigration judges selected by the Bush administration for political reasons
have been generally far less likely to grant asylum applications than judges chosen
through the regular, politically neutral process.3 As the authors properly suggest,
strong consideration must be given to moving the immigration courts and the
Board of Immigration Appeals out of the Department of Justice and granting
them greater independence from political influence.
A mark of a great nation is how fairly it treats the most vulnerable. Refugees
arriving on our shores, desperate to avoid a return to persecution, are among
those who most deserve fair treatment under our immigration laws. For years,
refugees have been arbitrarily denied asylum and returned to their native countries, at great risk to their lives and the lives of their families.
This indispensable study is a wake-up call that proposes well-supported, sensible changes in policies and operations to reduce the unacceptable disparities
that tarnish the current asylum process. The new administration and new Congress in 2009 should take up the authors’ recommendations and implement these
needed reforms. Otherwise, the promise of the Refugee Act of 1980 will continue
to go unfulfilled, and our nation’s reputation as a beacon of hope for the persecuted will continue to decline. They, and America, deserve better.

Senator Edward M. Kennedy
Chair, Senate Subcommittee on Immigration
December 2008
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Notes
1. Ming Shi Xue v. Bd. of Immig. Appeals, 439 F.3d 111, 113–14 (2d Cir. 2006) (Calabresi, J.).
2. Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005) (Posner, J.).
3. See Charlie Savage, Vetted Judges More Likely to Reject Asylum Bids, N.Y. Times, Aug. 24, 2008.

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Senator Edward M. Kennedy