Posted by: birdsongslaw | February 26, 2009

An Analysis of The Reforms for U.S. Immigration Courts

Birdsong’s Refugee Law student, Christina Workman, has done outstanding work in analyzing the supposed reforms to the U.S. Immigration Court system since  2006.  Read it and you will learn a lot.

A REVIEW OF THE 2006 MEASURES OF IMPROVEMENT TO THE IMMIGRATION COURTS AND BOARD OF IMMIGRATION APPEALS

Christina Workman

Refugee Law Paper

 

I.  Introduction

            Because David Ngaruri Kenney protested the Kenyan government’s inhumane treatment of tea farmers, he suffered dehumanizing torture and near execution at the hands of the Kenyan government.[1]  He fled for his life and eventually applied for asylum in the United States.  But his application was denied.  The immigration judge found that although he had been tortured on previous occasions by governmental forces, Kenney’s two-month return to Kenya [to save his brother from impending torture] meant that he could not reasonably have a well founded fear of persecution if returned to Kenya.  The Board of Immigration Appeals (BIA) affirmed the immigration judge’s decision.[2]  Kenney’s application for asylum was then rejected by the Fourth Circuit Court of Appeals.[3]  He was ordered deported back to Kenya.[4]

            Some critics of the United States immigration system, however, would argue that Kenney was not denied asylum because of his two-month return to Kenya, but because of his bad luck in having his case assigned to an immigration judge with an extremely low asylum grant rate.[5]  While of course it cannot be proven that a different judge would have rendered a different result, the chances of being granted asylum would have been much greater before any other judge on that court.[6]  Further, Kenney’s claim was appealed to the Fourth Circuit Court of Appeals, the Circuit Court with the lowest average remand rate in years 2004 through 2005.[7]

            Last year I read the book, Asylum Denied, detailing Kenney’s story.  The book was co-authored by Kenney and the attorney who guided him through the difficult asylum application process, Professor Philip Schrag of Georgetown University School of Law.  Kenney’s story intrigued me.   He recounted in detail being imprisoned in a “water cell”.  Water cell torture subjects a person to hunger, thirst, fear and embarrassment by stripping a person of his clothing and locking him in a cold dark cell for a week straight.  On the floor of the cell is a grate in which water rises and falls at varying intervals.  Sleep would mean death if the water rose and he did not awake in time.[8]   I was disturbed by the brutality of Kenney’s torture and felt a sense of pride in his will to go on after suffering of that magnitude.  Through the recount of his immigration trial I found myself hoping against all odds that his claim would be approved.  When his claim was denied, my heart sank. 

            The comments by the attorney throughout the book disturbed me.  He explained that large disparities in asylum grant rates existed between immigration judges.  For example, in Arlington, VA “enormous and persistent variations make the outcomes of cases highly dependent on the identity of the judge.”[9]  The judge assigned to Kenney’s claim denied eight of eight asylum claims (0% asylum grant rate) in a four year period, while another judge on the same court granted asylum in four of six cases (67% asylum grant rate) during that same period.[10]   To me, it just did not seem fair that his claim had a 67% better chance of being approved if it were assigned to a different judge.  Further, the BIA affirmed the trial court, with only a one paragraph opinion and the Circuit Court refused to hear his appeal.[11] 

            I felt as though Kenney got shortchanged.  By all accounts, it seemed as though his experiences were exactly those for which the humanitarian grant of asylum was intended.[12]  I chose this topic in hopes of finding out what was causing these large disparity rates and what should be done to improve fairness to all under the U.S. immigration court system. 

II. Asylum Law

            Any alien physically present in the United States may apply for asylum, regardless of whether or not he or she entered the country legally.[13]  An alien can apply for “affirmative” asylum where one, not already in removal proceedings, applies for asylum.  An alien already in removal proceedings may claim asylum as a defense.[14]  All asylum applications (affirmative and defensive) will be randomly distributed between the judges in the local immigration court, “without regard to the merits of the cases or the strength of defenses to removal that may be asserted by the respondents.”[15]

            The alien must prove to the immigration judge that he or she is a “refugee” under the Immigration and Nationality Act.[16]  A refugee is a person who is outside of their home country, is unable or unwilling to return to their home country and is unable or unwilling to avail himself to the protection of the home country because of a well founded fear of persecution based upon race, religion, nationality, membership in a particular social group, or political opinion.[17]  If an applicant’s testimony is “credible… persuasive and refers to the specific acts sufficient to demonstrate the applicant is a refugee” then no other evidence is needed to prove the applicant’s refugee status.[18]  However, there is no presumption of credibility of the applicant’s testimony and the immigration judge must make a discretionary decision as to the credibility of the applicant.[19]

            If an immigration judge denies an applicant’s claim for asylum, the applicant may appeal that finding to the Board of Immigration Appeals (BIA).[20]  The BIA is made up of 15 members who most often determine the merits of a case “on paper,” only occasionally hearing oral arguments in complex cases.[21]  To alleviate a large backload of cases resulting from time consuming three-member reviews of cases, Attorney General John Ashcroft, in 2002, issued a rule that made decisions by a single member of the BIA the standard.[22]  In addition, BIA members have been given the ability to affirm immigration court rulings with little explanation.[23]  All decisions of the BIA are binding on immigration judges.[24]  However, only a small portion of BIA decisions are published each year, so in practice, only a small portion of BIA decisions are truly binding on immigration judges.[25] 

            An applicant can appeal an affirmation of the asylum denial and deportation order to the U.S. Court of Appeal.  The Circuit Court reviews a BIA decision only under an abuse of discretion or ruling contrary to law standard.[26]  “The current uniform standard requires that circuits uphold findings of fact unless any reasonable adjudicator would be compelled to conclude to the contrary”.[27]  Basically, the BIA is the “highest administrative body for interpreting and applying immigration laws.”[28]  As such, the circuits remand cases for reconsideration by the BIA and do not themselves grant an asylum application, except is rare circumstances.[29]              

III. Why is Change Needed?

The grant or denial of asylum can mean life or death for the applicant.[30]  As such, asylum adjudicators must be able to make a decision that is fair and in compliance with the current laws.  There are several reasons why, in 2006, some type of change was needed to the immigration system.  One of the largest reasons for the need for change was the large disparities in the grant rates of asylum claims.[31]In fact, it has been said that the most critical point of an asylum case is the instant in which the immigration judge is assigned to the case.[32]  Further, it has been said that the pick of the immigration judge is even more important that the facts of the asylum applicant’s claim.[33]  In addition there were reports that immigration judges were failing to “display temperament and produce work that meets the Department [of Justice’s] standards.[34] 

Professors Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag compiled a comprehensive review of the disparities in asylum adjudication.[35]  The study analyzed asylum decisions made by asylum officers, as well as 140,000 decisions by immigration courts in the years 2000-2004, 126,000 Board of Immigration Appeals (BIA) decisions for the years 1998-2005 and 4,215 United States Court of Appeals decision during 2004-2005.[36]  The average asylum grant rate for all immigration courts was also tracked and found to have remained close to 37% in the years 2002 through 2005.  There was a notable increase in the average asylum grant rate for immigration courts to 45% in 2006 and again to 46% in 2007.[37] An average asylum grant rate of a particular court that is more than 50% above or 50% below the national average asylum grant rate is considered statistically significant.  Statistically significant means that the disparity rate is so large, that is cannot be attributed to chance.[38]

Overall, the study revealed that there is an extraordinary variation in the rates at which asylum in granted between immigration courts, within immigration courts and between the US Courts of Appeal.[39]  Some differences in asylum grant rates can be expected between immigration courts, as different geographical locations may attract different populations of asylum applicants.[40]  However, judges within immigration courts are randomly assigned cases from the same applicant pool as the other judges on that court.[41]  Therefore, the asylum grant rate is expected to remain fairly consistent within immigration courts.  However, 27 of 39 studied immigration courts, including Dallas, Detroit, San Francisco, Philadelphia, and Orlando had statistically significant variations among its immigration judges.  The disparities clearly stretch across the nation.[42]     

A Government Accountability Office study, released in September, 2008, found that when considering characteristics of a judge individually, “caseload, gender, length of service, veterans preference, and prior experience doing work for a non-profit organization” all had significant effects on asylum decisions.[43]   The fact that decisions are being based on anything other than the facts and applicable law of the given situation does not comport with the American idea of “equal justice under the law”.[44]  “The fact that the outcome of a case appears to be strongly influenced by the identity or attitude of the… judge to whom it is assigned is particularly discomforting in asylum cases, because when a bona fide application is erroneously denied, the applicant is almost always ordered deported to a nation in which she will be in grave danger.”[45] 

            Between five (5) immigration courts across the nation, Phoenix, Baltimore, Orlando, Seattle and Lancaster, one can see the vast differences in asylum denial rates between immigrations courts.  The following chart examines the differences between the immigration judges with the highest asylum denial rate in their home court, the differences between the immigration judges with the lowest asylum denial rate in their local court and the median denial rate for each local immigration court.  For example, an asylum applicant has a 57.7% better chance of being granted asylum in Phoenix, Arizona than Lancaster, Pennsylvania. 

            Further, the immigration judge who denied asylum at the highest percentage in Phoenix actually denied asylum over six percent less than the immigration judge who denied asylum at the lowest rate in all the other immigration courts.[46]  In other words, if a Phoenix asylum applicant was lucky enough to have his case assigned to Judge A, the judge with the highest asylum grant rate in the entire court, he would still have a 6% greater chance of being granting asylum if his application was filed in any other of the listed courts.  That is even if he is unlucky enough to have his case was assigned to the judge with the lowest asylum grant rate of any of those other courts.   

[47]

            Americans tend to like the idea that cases are decided on laws and not on the “predilections or personal preferences” of the immigrations judge with whom their case has been assigned.[48]  Although statistical significance in disparity rates alone cannot show that disparities are assuredly due to a judge’s temperament,  preferences, lack of training or any other particular factor,[49] it does show that something needs to be done to preserve the idea of “equal justice under law” as inscribed on the main entrance to the Supreme Court building.[50] 

            As stated before, some disparities in asylum denial rates can be expected between immigration courts, however, disparities in denial rates within immigration courts are much less acceptable.[51]  However, as the following chart shows, the deviations in asylum denial rates are astounding within immigration courts as well.  In the New York Immigration Court, Judge A denied asylum only 9.5% of the time, while Judge B, in the same court, who is randomly assigned cases from the same applicant pool as Judge A, denied asylum a whopping 91.6% of the time.[52]  That is an 82% better chance of having an applicant’s life saved from persecution, based on the judge to which the case was assigned.   

 

            [53]

            David Kenney’s case was heard before the immigration judge in the Arlington Immigration Court with the lowest asylum grant rate in the Court.  Had his case been assigned to a different judge in that court, he may not have had to journey to Madagascar and Tanzania to avoid being tortured or killed by the Kenyan government, before being reunited with his wife.[54]  After criticisms of the immigration courts by the federal circuit and appellate courts, the Attorney General took action.[55] 

            The statistics were obtained from the Transactional Records Access Clearinghouse (TRAC).  TRAC is a “data gathering, data research and data distribution organization at Syracuse University.”[56]  Its goal is to collect information on governmental organizations and display that information in a way that the public can understand.  TRAC has issued several immigration reports, which are based on detailed studies of immigration court system, including disparities in asylum grant rates.[57]

IV. A Response to the Need for Change

            In January of 2006, Attorney General Alberto Gonzales, directed the Director of the Executive Office of Immigration Review (EOIR) and Deputy Attorney General (DAG) to review the immigration court system and provide a report.  The review would examine, among other things, TRAC’s previous report on the wide disparities in asylum denial rates which concluded that asylum denial rates for 208 judges ranged from a mere 10% to a staggering 98%.[58]  On August 9, 2006 the Attorney General issued a Press Release detailing 22 Measures of Improvement to the Immigration Courts and Board of Immigration Appeals (BIA).  These 22 Measures composed a comprehensive reform package to tackle the major issues in immigration law.[59]  The changes were hoped to bring transparency to the immigration system[60] and rid the immigration courts of immigration judges whose temperament and work product were not consistent with the proposition of fair justice for all.[61] 

            Seventh Circuit Court of Appeal Judge Posner once described an immigration judge’s deficient analysis of immigration law, as just “one more indication of systemic failure by the judicial officers of the immigration service to provide reasoned analysis for the denial of applications for asylum. We are mindful that immigration judges, and the members of the Board of Immigration Appeals, have heavy caseloads. The same is true, however, of federal district judges, and we have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think.”[62]   

            I believe if the 22 Measures announced by Attorney General Gonzales were fully implemented and given a little time, there would at least be a noticeable difference in the large disparity rates in asylum grant rates.  Yet, over two years after the directive, many Measures are not implemented, some are still partially implemented and some are not implemented in compliance with the Attorney General’s directions[63]. 

V. The Implementation of Change

(1)   Performance Evaluations

            The Attorney General directed that the Director of the EOIR and the Deputy Attorney General develop and implement a process by which immigration judges and members of the BIA would have their work and performance reviewed.[64]  The reviews were to be used to detect those immigration judges and BIA members whose work “may need improvement while fully respecting his or her role as an adjudicator.[65]

            The then Director of EOIR, Kevin Rooney, stated in a memo to his staff in March of 2007 that the implementation of a review process for immigration judges and BIA members had been “fully implemented”.[66]  However, as of November 2008, no actual performance evaluations have taken place for either immigration judges or BIA members.[67]  On July 1, 2008, nearly two years after the Attorney General’s directive, the EOIR finalized a plan for annual performance evaluations for BIA members and targeted the first evaluations to be held in January, 2009.[68]  Performance evaluations of immigration judges, however, are another story.  The EOIR is currently in negotiations with the union representing immigration judges, the National Association of Immigration Judges (NAIJ).[69]  The concept of performance evaluations of immigration judges have been seen as an encroachment upon judicial discretion by the NAIJ and therefore a “change in working conditions”.[70]  With performance evaluations for immigration judges still in negotiations and performance evaluation for BIA members hopefully starting in January, 2009, it is hard to see how such performance evaluations have been “fully implemented.” 

 

(2)   Evaluation During Two-Year Trial Period

            Attorney General Gonzales announced that newly appointed immigration judges were now subject to the same two-year trial period of employment as other Department of Justice employees.  During this two-year trial period, judges will be assessed by the Deputy Attorney General on their “temperament and skills for the job”.  The Attorney General makes clear that the assessment will be done in a way that fully respects the adjudicator’s role.[71]

            According to the DOJ, a system to regularly evaluate newly appointed immigration judges has been created and implemented.[72]  Current EOIR Director, Kevin Ohlson testified before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law that the two-year trial period assesses newly appointed immigration judges’ “necessary abilities, professionalism, and temperament on the bench.[73]    In order to properly asses these factors EOIR “consults with court staff, peers, and interested parties”.[74]  Immigration judges failing to meet the Department’s standards can be subject to termination.[75]   

            TRAC attempted to obtain more information on this monitoring process, such as how judges are monitored and how many judges were found to have temperament problems.  EOIR, however, would not release such information and released only “partial information on what disciplinary actions were taken”.[76]  Without more information about the monitoring process, it is impossible to attempt to analyze the effectiveness of the new implementation.  With asylum grant rate disparities still looming, it is difficult to say that the trial period has had any success.

(3)   Examination on Immigration Law

            All immigration judges and BIA members are now required to take an exam on the principles of immigration law prior to adjudicating cases.[77]  This directive was to apply to every newly hired immigration judge and BIA member appointed after December, 31, 2006.[78]  Former EOIR Director, Kevin Rooney congratulated his staff on the full implementation of this objective in his March, 2007 Memo and the DOJ reported in November of 2007 that immigration exams had been implemented.[79]  According to the EOIR’s Measures Improvement – Progress Overview, however, immigration judges did not begin to be tested in April 2008 and BIA members in August 2008.[80] 

            Although it took nearly two years after the Attorney General’s orders, the mandatory examination has finally been implemented.[81]  So what exactly does the exam consist of? In EOIR Director Kevin Ohlson’s testimony, he described the immigration exam to be “rigorous”.[82]  However, no sample exams have been released for public evaluation.  Although some states, such as Florida, have released detailed outlines of what is tested on the exam.[83]  Without such information, it is difficult for the public to evaluate if the exam assures sufficient knowledge of the immigration judges.  TRAC has noted that it appears that one judge that passed the exam, had “no immigration law experience in his career”.[84]  This would lead many to question to depth of immigration law knowledge needed to pass the exam.  Could a law student, after taking Immigration Law 101 pass the exam?

(4)   Improved Guidance and Training for EOIR Judges and Board Members

            Recognizing the importance of training for immigration judges and Board members, the Attorney General directed a review of the current training procedures and requested a plan be sent based upon that review to the Deputy Attorney General.  He further laid out three specific criteria to be addressed, (i) is expansion needed, (ii) continuing education, and (iii) proper training on crafting oral decisions.[85]

            The BIA held a training conference in October of 2006 and has since met with individual circuits in varying frequencies.[86]  Training for new immigration judges has been expanded by three weeks and immigration judges and BIA members have been given copies of the Immigration Court Practice Manual and Immigration Judge Benchbook, two sources of useful immigration information.[87]   The Benchbook even includes a list of mentors available to immigration judges who are available “for consultation at any time”.[88]  In addition, in 2007, a weeklong training conference was conducted for immigration judges and BIA members.  More training sessions were planned for both BIA members and immigrations judges through 2008.[89] 

            A government report indicated that most immigration judges felt the EOIR’s enhanced training better prepared them to adjudicate asylum decisions.[90]  However, a majority of immigration judges felt a moderate or great need for additional continuing education on asylum issues, identifying fraud, assessing credibility and US Asylum law.”[91]

            Some critics believe that the quality of training has actually decreased.[92]  Susan Long, the President of TRAC, testified before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law that funds were unnecessarily being cut for training, resulting in cut backs on the quality of training conferences and up to date materials.  For example, the 2007 annual immigration judge’s training conference was reduced to a virtual conference where judges did not leave their own courthouse and watched a video presentation of the conference materials.  Both EOIR and NAIJ have recognized loss of “invaluable” learning experiences with the elimination of in person conferences.[93]  The EOIR has reported that it just does not have the “time nor funds to expand immigration judges’ opportunities to interact with each other outside their court locations.”[94]  With such a vital need for shared information between immigration judges, it is perplexing that training is not closer to the top of the appropriations list.        

(5)   Improved Training and Guidance for EOIR Staff

            One measure that has been implemented with little criticism is the enhanced training for EOIR staff.  BIA attorneys are given monthly training, the Board distributes a monthly newsletter on developments in immigration law and a position has been created to oversee all training procedures.[95]   In addition, there has been enhanced availability of reference materials for immigration attorneys.[96]

(6)   Improved On-Bench Reference Materials and Decision Templates

            The Attorney General highly encouraged the EOIR director to “promptly” form a committee to develop up to date reference materials for immigration judges.  EOIR has developed enhanced reference materials for immigration judges including an Immigration Judge Benchbook, Immigration Court Practice Manual, as well as the new Virtual Law Library.[97]

            The Immigration Judge Benchbook consists of links to reference materials, as well as corresponding “up to date decision templates”.  The Benchbook is not available to the public, as it is an internal “document”.[98]  The Immigration Court Practice Manual is an online database consisting of “best practices in establishing uniform procedures, requirements, and recommendations” for use in immigration courts.  This database was made available to the public in July 2008 and can be accessed on the EOIR website.[99]  EOIR has also expanded its Virtual Law Library containing a larger variety of immigration law resources, giving judges an opportunity to research specific, new and complex issues.[100]  Further, the EOIR is making revision to its Ethics Manual “to provide detailed ethical guidance to Immigration Judges and Board Members”.[101]

 

(7)   Mechanisms to Detect Poor Conduct and Quality

            The next implementation directly addresses the temperament and work product criticized by the federal circuit and appellate courts.[102]  AG Gonzales directed the development of procedures designed to report judges with poor temperament and work quality.  In addition, he directed that the Chief Immigration Judge and the Chairman of the Board keep statistics “that may signal problems in temperament or quality.  Such areas to be statistically tracked include “unusually high reversal rates, unusually frequent or serious complaints, and unusually significant backlogs”.[103]  No statistics have yet been released to the public.

            The Government Accounting Office published a report stating that the Chief Immigration Judge “referred 14 immigration judges for additional or ameliorative training, of whom 6 were referred for additional training.”[104]  No information has yet been released regarding the elements of “ameliorative training” or how it is designed to combat “unusually high reversal rates, unusually frequent or serious complaints [or] unusually significant backlogs.”[105]

(8)   Analysis and Recommendations Regarding Disparities in Asylum Grant Rates

            The Attorney General acknowledged that TRAC’s finding that showed large disparities between courts and even within courts’ asylum grant rates.[106]  AG Gonzales directed the EOIR Director and Acting Chief Immigration Judges to review the TRAC study and provide recommendations to alleviate the large disparities in asylum grant rates to the Deputy Attorney General.  According to the EOIR Director, Kevin Rooney in 2007, such recommendations included enhanced training, an immigration judge mentorship program, and “close” supervision of judges having “unusually high or low asylum grant rates”.[107] 

            The EOIR has not, however, released information on how those judges are monitored or for how long.  It also has not disclosed how “unusually high or low asylum grant rates” are calculated.[108]  The lack of information provided by the EOIR’s efforts to improve disparities in asylum grant rates has left many questions open.  Would the New York Judge A’s 9.5% asylum denial rate qualify as unusually low?  How about the New York Judge H’s 91.6% asylum denial rate; would that be unusually high?  What would happen after the monitoring process has ended?  Would either judge be reprimanded, suspended, subjected to enhanced training, or discharged?  At what point is disciplinary action appropriate and what type?   

            In an effort to develop uniformity in asylum decisions, one reform focuses on educating immigration judges and BIA by enhancing asylum training during conferences.[109]  In August 2008, a training program was held for immigration judges and BIA Members focusing on disparities in asylum grant rates.  In addition, immigrations judges complete continued online training on asylum law.  The BIA underwent asylum training in June 2007 and has subsequently held several training sessions.[110]

            But have these enhancements in immigration judge and BIA Member training had any effect on the disparities in asylum grant rates?  Susan Long testified that reviewing the most recent statistics, ending in 2007, the EOIR has failed to make any improvement in the large disparities in asylum grant rates.[111]

(9)   Pilot Program to Deploy Supervisors to Regional Office

            The Acting Chief Immigration Judge was charged with selecting one or more Assistant Chief Immigration Judges to be placed in regional offices rather than in the EOIR headquarters.  The goal was to determine if management effectiveness increased with local supervisory positions.[112]  As early as the Rooney Memo, four out of six planned Assistant Chief Immigrations judges had been placed within the court which they supervise.[113]  By 2008, all six had been placed within the court of supervision with an additional five Assistant Chief Immigration Judges being assigned to supervise a “subset of immigration courts”.[114]                                            

            After an initial review, EOIR has determined that regional supervisor’s were effective in “monitoring, mentoring, and managing the Immigration Judges in the Immigration Courts.   The EOIR also recommended to the Deputy Attorney General that the program be made permanent.[115]  When the 2008 statistics come out, it will be interesting to see if the asylum grant rate disparities in any of those six cities have decreased.  If so, the rest of the immigration courts       should implement regional supervisors. 

(10)  Code of Conduct

            The Attorney General directed the Director of EOIR to draft a Code of Conduct that would apply to immigration judges and BIA members.  The completed Code would be available electronically for those appearing before the immigration courts and BIA.[116]  A Code of Conduct would give reason to terminate an immigration judge or BIA member that was displaying “bad temperament”.    

            The Rooney Memo discloses that a draft Code of Conduct was complete and would be available to the public for comment with implementation planned for Spring of 2007.[117]  A proposed rule was issued June 28, 2007.[118]  According to the last EOIR statement, however, no Code of Conduct will be issued.  According to its correspondence with TRAC, EOIR has stated that it has abandoned its efforts to devise a rule, but it will incorporate the Code into the existing ethics manual.[119]  As of the EOIR’s Progress Overview, “revisions to the Ethics Manual are [still] forthcoming”.[120]  However, this is not the implementation which the Attorney General directed. 

(11)  Complaint Procedures

            The Director of the EOIR was charged with reviewing the current system for reporting complaints about immigration judges and BIA members.  After the review, the Director was told to devise a plan focused on (i) standardizing complaint intake procedures, (ii) creating a process for delineating responsibility in handing complaints and (iii) ensuring a fair and timely response.[121] 

            By 2007, the EOIR had created a new position of Assistant Chief Immigration Judge for Conduct and Professionalism.[122]  In addition, immigration judge supervisors are “trained on conduct issues”.  Further, there is now even a public access website in which members of the public can file complaints against immigration judges.[123]  The Immigration Court Manual provides more information of the different ways of filing a complaint against an immigration judge, including a direction to the above-mentioned website.[124]  According to EOIR Director Kevin Ohlson, all complaints are taken seriously, investigated and referred to either the Office of Professional Responsibility or the Office of the Inspector General.  He concludes that immigration judges will be disciplined “as circumstances warrant”.[125]  Again, there is no specific information about the disciplinary procedures available.

(12)  Improvements to Streamlining Reforms

            Although the idea has been promoted by some in immigration law, the Attorney General does not find it “feasible” to resort back to a three-member panel BIA review of immigration appeals without recreating the enormous backlog that had haunted the BIA in past years.  However, the Attorney General did find that some changes were needed to streamline the appeals process.[126]  AG Gonzales first recognized the importance of encouraging written opinions to point out the use of a flawed analysis.  In addition, discretion to use three-member panels were now allowed on a limited basis if the issues are extremely complex.  The Attorney General did leave open the possibility that some rules may need to be adjusted with the need of the Board and parities who are heard before the Board.[127]

            The EOIR has reported a number of improvements to streamlining the appeals process.  First, the issuance of summary affirmances has dropped from 30% in 2004 to under 10% in 2008.  Summary affirmances allow a single BIA member to affirm an immigration judge’s opinion without a written opinion or explanation.[128]  Single member review panels are usually less favorable to asylum applicants, but are more time efficient.[129]  Prior to the 22 Measures of Improvement, the BIA was restricted to using single member review panels, but now it has much more discretion in its ability to use three-member panels.[130]  In addition, on June 18, 2008, a proposed regulation was published in the Federal Registrar, mandating more three-member panel reviews and increases the number of published precedent BIA decisions.[131]  The final rule has still yet to be implemented.[132]

            Second, the Attorney General directed that a rule be drafted to allow more precedent BIA decisions be published.[133]  Prior to 2006, very few BIA decisions were published as those which needed to be followed by immigration courts.[134]  Professor Leonard Birdsong, of Barry University School of Law has recognized that with such a “lack of published opinions, it is difficult to determine or analyze whether important precedents have been established in the system.”[135]  Further, because so few asylum denials are appealed, “outdates procedures persist and dictate the outcome of most cases.”[136]   The EOIR has been able to increase the number of precedent BIA decisions published from 12 in 2005 to 45 in 2007.[137]                                                         

            If the BIA would have produced more binding decisions in 2000, David Kenney would have had a better chance of being granted asylum.  Prior to Kenney’s case, the BIA had overturned an immigration judge who held that a short trip home barred an asylum claim.  As such, that same immigration judge who heard Kenney’s claim, would not have been able to use that same reasoning, as it was rejected by the BIA. [138]

(13)  Practice Manual

            The EOIR Director was charged with the responsibility of working with immigration judges to form a manual of “best practices” to be available online to immigration judges, counsel and litigants.[139]  The Immigration Court Practice Manual was released on February 2008.  It “became effective on July 1, 2008.”[140]  

            A Practice Manual in place at the time of David Kenney’s asylum hearing may have produced a different result in his case.  The immigration judge used flawed reasoning, by using inapplicable international law.  In fact, that same judge had previously been overruled by the BIA for using that same international rule[141] If the immigration judge in Kenney’s case would have had knowledge of or access to the asylum officer practice manual, which states that the law is interpreted so that short trip home under extreme circumstances did not destroy the asylum claim, Kenney’s case would have turned out much differently.[142]

(14)  Updated and Well Supervised Sanctions Authorities for Immigration Judges for Frivolous or False Submissions and Egregious Miscount; and

 

(15)  Updated Power Sanctions for the Board

            The Attorney General recognized the importance for immigration judges to “control their courtrooms” as well as protect the entire judicial system from fraud and abuse.[143]  The Director of EOIR was directed to draft a rule that would provide sanction authority for immigration judges and BIA members to impose for “false statements, frivolous behavior, and other gross misconduct”.[144]  The Attorney General also proposed a rule giving sanction authority to immigration judges and BIA members for conduct in “contempt of an immigration judge’s proper exercise of authority” by civil monetary penalties.[145]  The Attorney General also recognized the importance of oversight of that sanction use, though it should not be expected to be used very often.[146]   

            According to the EOIR’s project overview, the EOIR has published a proposed regulation in the July 30, 2008 version of the Federal Register.  The proposed rule expands the reasons for which attorneys before an immigration judge or BIA member can be disciplined, including “ …diligence, competence, negligence, and client communications…”[147]  That power, however, is held by the Office of General Counsel and not the immigration judges or BIA members.  “This proposed rule does not provide civil monetary sanction authority, or any direct sanction authority at all, to immigration judges or BIA members”.[148]   The EOIR has responded to TRAC questions on the issue by stating “the proposed rules are being considered by the Justice Department.”[149]

(16)  Seek Budget Increases

            The EOIR was directed to seek budget increases starting in 2008 to hire more immigration judges, law clerks, and BIA staff attorneys.[150]  In 2007, Congress appropriated the funds for 120 new positions.  In 2008 appropriations to fund another 120 positions was requested but denied.[151]    There was a reported 22 immigration judges hired between 2006 and 2008; and 20 new law clerk were hired in 2007.[152]  Amazingly, however, there are reportedly less immigration judges today than in 2006.[153]  Despite funding for the positions, there were 28 vacant immigration judge positions as of July 24, 2008.[154]  As of May 2008 there were 216 immigration judges on board.[155]   In addition, 87 % of immigration judges of surveyed judges felt additional law clerk would improve their ability to carry out judicial responsibilities.[156] 

            With many immigration judge positions vacant, other immigration judges must add to their already overwhelming caseload.  “[In 2007], immigration judges decided over 350,000 matters, or roughly 1,520 matters per judge…”[157]  That would mean, each immigration judge would have to hear over five cases per day if working five days a week, every week of the year.  Considering that asylum issues can be complex, several hours may be needed to weed through the issues.[158]  77% of immigration judges who responded to a GAO survey reported that “managing their caseload was moderately or very challenging.”[159]  In addition, immigration judges are expected to find time to familiarize themselves with the continually updated immigration law reference materials called for by the Attorney General.[160]  This can only lead to frustrated immigration judges who are not up to date on the law.  This, I believe, is one of the major elements in the large asylum grant disparity rates.

(17)  Increase in Size of the Board

              EOIR was directed to propose a rule to increase size of the Board of Immigration Appeals from 11 permanent members to 15 permanent members.[161]  On December 7, 2006 a proposed rule was published in the Federal Registrar.  On June 16, 2008, the final rule was published.[162]  In May 2008, the EOIR reported on the appointment of five new BIA members.  However, that only brought the total BIA membership to 13.  As such, the BIA remains two permanent members short of the Attorney General’s directive.[163]  It seems logical that the more BIA members on Board, the more time efficient the Board will become.  As such, BIA members can spend more time concentrating on the facts of each case, rather than concentrating on getting a minimum number of cases heard to reduce backlog.  As the additional two member positions seem to be open and funded, it is hard to figure out why, after two years, the BIA membership is still short of the Attorney General’s directives. 

 

(18)  Updated Recoding System and Other Technologies

            The Attorney General requested that a plan be devised to implement a Digital Audio Recording (DAR) in place of the current tape recording technology in immigration courtrooms.  The Attorney General directed that a pilot program be implemented within a year and national implementation as soon as possible.[164] 

            The pilot program was initiated and so far in 59 courtrooms, within 21 immigration courts across the nation including Orlando, Phoenix, and Seattle.[165]  The Department of Justice has requested an additional $8.3 million for 2009 to fully implement DAR by the end of 2010.[166]  The quality of recordings in immigration courts is important because there is no court reporter like in a usual courtroom.  Transcriptionists rely on the audio transcripts of courts in putting the words to paper.  That paper is then used for the appeals process. 

(19)  Improved Transcription Services; and

(20)  Improved Interpreter Selection

            The Director of the EOIR was instructed to review and develop a plan to enhance transcription services and interpreter selection.  The Director was to focus on strengthening transcription of oral opinions and timeliness.  The Director will also focus on ways to improve screening, hiring, certification and evaluating the interpreters that are hired by the Department.  In addition, similar enhancements were directed for contract interpreters.[167]

            The Rooney Memo announced improvements in both timeliness and quality of oral decision transcriptions.  The transcription backlog that had plagued courts has been eliminated in part by contracting with an additional transcription service.  Transcriptions can now usually be returned in five days for detained cases.[168]  There is no available information on the turn-around rate for non-detained cases.  The NAIJ, though recognizing improvements in timeliness, have been critical of the quality of transcription services.[169]  It has even raised the possibility that the increase in timeliness is a “dubious factor” in actually decreasing the quality of transcription services.[170]

            The need for quality in interpretation services is essential.  An asylum applicant’s credibility can make or break their claim for asylum.  Many applicants do not speak English fluently enough to sufficiently recount their lives leading up to the asylum application.  If an interpreter translates the wrong information, an applicant will not look credible.  Without credibility, the applicant will need to produce documentary evidence that is often impossible to find.[171]

            The Rooney Memo also outlined a plan to have government interpreters be certified by an agency-approved testing facility.  The plan included mandatory continuing education and regular assessments of interpreters.[172]  However, after a review of the testing process, the EOIR has decided that the cost would outweigh the benefit.  In the alternative, the EOIR developed a plan to “improve interpreter services [by enhancing] internal interpreter hiring, training and assessment[s]…..”[173]  Also, like the weblink to file complaints against immigration judges, there is a weblink for the public to report complaints about interpreting services.[174] 

(21)  Referral of Immigration Fraud and Abuse

            That Director of EOIR was charged with developing a procedure for immigration judges and BIA members to report fraud or abuse so that it may be properly investigated.[175]  Because violations of immigration law can also produce criminal penalties, cases also may be referred to the U.S. Attorney’s Office.[176]

            The Rooney Memo reports that as of March, 2007, a new plan had been implemented and “a substantial number of referrals have been made under this program already”.  But, EOIR has advised “that number of referrals of fraud and abuse made to investigative agencies is not readily available.”[177]  It has been reported, however, that a total of 132 referrals were received.  Twenty-six of those referrals were made by immigration judges.[178]  It requires every employee report “suspicious conduct”.[179]  An Anti-Fraud Officer would review those reports, “identify fraud and coordinate interagency responses.”[180]  A DOJ Press Release in November of 2007 reported that aggressive education efforts were being undertaken to educate immigration judges and BIA members of the EOIR Fraud Program.[181] 

 

(22)  Expanded and Improved EOIR-sponsored Pro Bono Programs

            The last measure of improvement which Attorney General Alberto Gonzales directed in 2006 was the development of a pro bono committee.  The committee will be “composed of immigration judges, representatives of the Board, other EOIR personnel, representatives of the Department of Homeland Security and the private immigration bar, and any other participants whom the Director deems necessary.”[182]

            The first open committee meeting was held on November 29, 2006.[183]  It made 17 recommendations in the summer or 2007 to expand and improve the Pro Bono programs of the EOIR to assess the current system and implement enhancements.  EOIR reports that the Committee consulted with “federal and non-governmental agencies, as well as the private bar.”[184]  However, this is not what the Attorney General directed.  Measure 22 says that the Committee will be “composed of ….the private immigration bar…” not that the Committee would “consult with” the private immigration bar.  TRAC solicited a response on the discrepancy from EOIR, who responded that “the decision was made because of “legal concerns raised… [and] EOIR determined that it would not be appropriate to include non-governmental organizations and private individuals as members of the Committee, per se.””[185]  In addition, requests for full copies of the Committee’s recommendations were denied by EOIR, stating it “was an internal document and not publicly available.”[186]

            EOIR has, however, reported a number of new initiatives.  For example, the Legal Orientation Program’s sites doubled, there were increased efforts to reach out to federal courts, the establishment of best practices procedures to promote pro bono representation and an expanded availability of pro bono legal services to non-detainees.[187]    EOIR has developed a comprehensive report available to the public on their website titled, “EOIR to Expand and Improve Pro Bono Programs.”  In addition, to improve the quality of pro bono attorneys, measures are being taken to “strengthen” the requirements for an attorney’s name to be listed on the EOIR’s List of Free Legal Services Providers.”[188]   A report from the Vera Institute of Justice published in May 2008 found that there were “faster immigration court processing times for aliens who were detained and more favorable case outcomes for aliens who represented themselves in removal hearings” among those participating in the Legal Orientation Program.[189]

VI. What Else Needs to Be Done?

            It has been suggested that forcing a judge to raise or lower his judge asylum grant rate would create more unfairness than it would solve.[190]  However, the disparities cannot just be accepted.  We would be accepting unequal justice under the law.  With many of Attorney General Gonzales’s 22 Measures still not fully implemented in compliance with the directives and large asylum disparity rates still ringing clear, there is still more that needs to be done.  I propose that first, that the Attorney General’s 22 Measures be fully implemented in full compliance with the Attorney General’s directives.  Second, there is a need for the Attorney General to conduct a detailed and comprehensive review of all initiatives that have been implemented as a result of Attorney General Gonzales’s 22 Measures of Improvement.  If a program is not performing as expected or not implemented as directed, the Attorney General needs to direct that the program be either amended or cancelled.  Lastly, I propose that the EOIR be more transparent when it comes to implementation of immigration policies and procedures.[191]

1.      Implement the Rest of the Attorney General’s 22 Measures of Improvement.

            Attorney General Gonzales’s 22 Measures of Improvement to the Immigration Courts and Board of Immigration Appeals is a comprehensive approach at tackling the problems within the immigration system.  The US immigration court system cannot be fixed by implementing a few of the Attorney General’s directives, implementing the EOIR’s own version of some more, and leaving others still “under consideration” or untouched.  For example, to enhance immigration judge’s knowledge of immigration law and recent decisions, immigration judges and BIA members need better training, up-to-date training materials, and time to review provided continuing education materials.  If immigration judges only received training, but it is not up-to-date, what was the point?  And if state of the art training and reference materials are available, what good are they if immigration judges do not have time to review them?

            In addition, without increased funding, none of the above can be possible.  Consistency is vital to establishing a predictable format to ensure justice for all.[192]  Judges cannot be consistent if they do not know what other judges are doing with regard to the same issues.  It is inexplicable to perceive why the EOIR did not seek increased funding in 2009.[193]  Out of a requested 240 additional positions, only 120 have been funded, yet additional funding for the positions has not even been requested.[194]  The EOIR needs to seek additional finances to fund at a minimum the remaining 120 requested additional positions.  The Attorney General should also review immigration judge’s current caseload and propose the need for more positions, if necessary.  Overloading judges with cases leaves little time for them to keep current on new developments in immigration law.  Such a lack of thorough knowledge, I believe, is a major factor in the disparities in asylum grant rates. 

2.      Comprehensive Review of Implemented Procedures

            I propose that the Attorney General direct a comprehensive review of all of the 22 Measures that currently are claimed to be implemented.  Not just a study about how they are being implemented, however, a study that determines how effective the implementations are working out to be.  If a Measure is found to have no effect on improving the immigration court system, the implementation needs to be adjusted or eliminated.  There is no sense is spending money on programs that are not producing positive results.  Some suggested focuses include: (a) additional funding (b) the immigration law exam and its effect on newly hired immigration judges and (c) the mechanisms to detect poor quality and conduct of immigration judges and BIA members.  The key to this review is that in addition to reviewing the programs, the Attorney General should direct a detailed process as to how each implementation should take place. 

(a)                The EOIR also needs to request additional funding for training conferences and resources.  In person conferences are vital.[195]  Immigration judges and BIA members, in addition to periodic electronic conferences, should be ensured funding to conduct one in person conference each year.  During that conference immigration judges and BIA members should go through intense training in current developments in immigration law, current interpretations of statutes, asylum law, credibility determinations, and accessibility of continuing resources.  In addition, I believe immigration judges and BIA members should conduct in person roundtables to discuss current issues in immigration laws and be given the opportunity to brainstorm ideas to combat those issues.  The suggestions of the immigration judges should then been seriously considered by the Attorney General. 

(b)               I also suggest a correlative study of immigration judges who took the new immigration law exam prior to hearing immigration cases.  There needs to be a test to evaluate if a higher score on the exam is indicative of higher job performance.  If so, I propose that all current immigration judges be required to pass an immigration law exam, including questions on current and especially recent immigration law.  If it is found, however, that there is no indication that a judge’s score on the immigration exam is indicative of job performance, the exam needs to be altered to assure a significant amount of immigration law knowledge is required to pass the exam.[196]  This would assure that passing the exam bears a relationship to a judge’s performance. 

(c)                Although there is currently a referral system in place for the public to report instances of poor conduct of immigration judges, more needs to be done.  The EOIR needs to track statistics relating to factors of poor judicial temperament or quality, such as high reversal or remand rates.  In addition, there are no statistics kept of complaints against specific judges.  Aside from general figures, EOIR cannot determine how many complaints have been filed against judges or how those complaints were disposed of (ie. dismissed, sanctions, etc.)  Keeping track of reversal rates, asylum denial rates, and multiple complaints against a specific immigration judge are important factors in assessing temperament and skills.  The EOIR needs to take steps to track these types of factors to help in such assessment. 

 

 

 

3.      More Transparency in Immigration Court System

            On many occasions it has been difficult to evaluate the effectiveness of the Attorney General’s 22 Measures of Improvement because of the EOIR.  On several occasions, EOIR has denied requests for information, claiming that such information is internal documentation.[197]  It is understandable that some information must remain classified, such as information that would pose security concerns.  However, it is hard to find the reasoning behind prohibiting the release of documents such as specific information on how immigration judges’ temperament and skills are monitored and assessed.    It is difficult to determine why the EOIR is being secretive when it comes to immigration policy implementation.  In fact, TRAC has reported that in 12 out of 22 Measures of Improvements, information about implementation was either misrepresented or withheld by the EOIR.[198] 

            Susan Long of TRAC has testified that DOJ and EOIR not only have “taken steps to provide as little information to the public as possible about the implementation of the improvements…” but have also “…at times attempted to misrepresent the manner of their implementation.”[199]  In the American legal system, it is unacceptable for a governmental organization to cover up governmental policy or regulations. 

VII. Conclusion

            Leading up to 2006, immigration courts and the BIA faced many troubles.  The immigration court system was recovering from a illegal hiring scandal, disparities in asylum grant rates were staggering, and lack of uniformity between immigration judge’s decisions were evident.  Attorney General Gonzales’s 22 Measures of Improvement to the BIA and immigration courts were meant to combat those issues.  Over two years after Attorney General Gonzales directed the improvements, there is still so much to be done to effectuate a real change in bettering the immigration court system. 

            With fewer immigration judges on the bench, a decrease in the quality of immigration judge training, and Attorney General Gonzales’s 22 Measures not fully implemented, there is again, if not always has been, a need for change.  The best hope for change is, as explained, a three-part process.  First, the 2006 22 Measures of Improvement need to be implemented in their entirety.  Second, there needs to be a comprehensive review of the 22 Measures of Improvement to determine which programs are effective and which are not.  Lastly, there needs to be more transparency in the EOIR with regard to immigration policy and procedure implementations. 

            If even some of these initiatives were in place in 2000 when David Kenney faced the immigration judge in his asylum hearing, his fate may have been different.  If immigration judges were kept more up to date on immigration law, that immigration judge may have held like many other courts, that a short trip back to the home country under extreme circumstances did not bar his claim to asylum.  If judicial monitoring were in place, it is possible that Mr. Kenney’s immigration judge would have faced advanced training because of her very low asylum grant rates.  It is very possible that David Kenney would have been granted safety from the Kenyan government and given a chance to live his life with his wife in a country of freedom, opportunity and equal justice under the law. 

 

 


[1] david ngaruri kenney & philip schrag, asylum denied 15 (University of California press 2008).

[2] Id. at 163, 199.

[3] Id. at 310.

[4] Id.

[5] Id. at 307.

[6] Id. at 307.

[7] Id. at 311.

[8] Id. at 9-10.

[9] Id. at 307.

[10] Id.

[11] Id. at 199, 307.

[12] ruth ellen wasem, congressional research reports for the people, immigration reform,; brief synthesis of issue 5-6 (May 10, 2008) available at http://www.au.af.mil/au/awc/awcgate/crs/rs22574.pdf.

[13] INA § 207(a)(1).

[14]Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication,60 Stan. L. Rev. 295, 305-06(2007).

[15] Id. at 326.

[16] INA § 207(b)(1)(B)(i).

[17] INA § 101(A)(42)(a).

[18] INA § 207(b)(1)(B)(ii).

[19] INA § 207(b)(1)(B)(iii).

[20] Supra note 13 at 309 (citing 1-3Immigration Law and Procedure §3.05[2]).

[22] Supra note 13 at 351.

[23] Id. at 352.

[24] Supra note 20.

[25] Press Release, Department of Justice: Executive Office for Immigration Review, Office of Legislative and Public Affairs Fact Sheet (September 8, 2008)

[26] Supra note 13 at 17.

[27] Id. at 31.

[28] Supra note 20.

[29] INS v. Ventura, 537 U.S. 12, 16 (2002).

[30] Government Accountability Office, US Asylum System Agencies: Have Taken Actions to Help Ensure Quality in the Asylum Adjudication Process, But Challenges Remain 1 (Sept. 2008) available at http://www.gao.gov/new.items/d08935.pdf

[31] Transactional Records Access Clearinghouse, Asylum Disparities Persist, Regardless of Court Local and Nationality (September 27, 2007)  available athttp://www.trac.syr.edu/immigration/reports/183

[32] Supra note 13 at 299

[33] Supra note 30

[34] Press Release, Department of Justice, Attorney General Alberto Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals 1 (August 9, 2006)

[35] Supra note 13

[36] Id. at 295.

[37] Supra note 29 at 18.

[38] Adams v. Ameritech Servs., 231 F.3d 414, 424 (7th Cir. 2000).

[39] Id. at 302.

[40] Id. at 332.

[41] Supra note 30.

[42] Id.

[43] Government Accountability Office, US Asylum System: Significant Variation Existed in Asylum Outcomes Across Immigration Courts and Judges 119 (Sept. 2008) available at  http://www.gao.gov/new.items/d08940.pdf

[44] Supra note 13 at 299.

[45] Id. at 302.

[46] Supra note 30 – Collection of immigration judge denial rate percentages based on a review of all immigration judges who made at least 100 decisions on the merits for asylum seekers represented by an attorney during 2001-2006.

[47] Id.

[48] Supra note 13 at 299

[49] U.S. ex rel. Free v. Peters, 806 F. Supp 705,  713 (N.D. Ill. 1992).

[50] Id. at 299

[51] Supra note 30 at 332

[52] Id.

[53] Id.

[54] Supra note 30 at 265

[55] Oversight of the Executive Office of Immigration Review: Hearings Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H. Comm. on the Judiciary, 110th Cong. 2 (Sept. 23, 2008) (statement of Susan Long, Co-Director, Transactional Records Access Clearinghouse). 

[58]Transactional Records Access Clearinghouse, Asylum Disparities Persist, Regardless of Court Local and Nationality (September 27, 2007)  available athttp://trac.syr.edu/immigration/reports/160/

[59] Supra note 33.

[60] Supra note 54 at 1.

[63] Transactional Records Access Clearinghouse, Asylum Disparities Persist, Regardless of Court Local and Nationality  (September 27, 2007)  available athttp://trac.syr.edu/immigration/reports/194/details.html

[63] Supra note 13 at 299.

 

[64] Supra note 60.

[65] Id.

[66]Memorandum from EOIR Director, Kevin Rooney to EOIR staff  1 (Mar. 2007) (on file with Department of Justice, Executive Office of Immigration Review).

[67] Supra note 62.

[68] Id.

[69] Oversight of the Executive Office of Immigration Review: Hearings Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H. Comm. on the Judiciary, 110thCong. 2 (Sept. 23, 2008) (statement of EOIR Director, Kevin Ohlson). 

[70] Supra note 62.

[71] Supra note 60 at 1.

[72] Supra note 24 at 1.

[73] Supra note 68 at 3.

[74] Id.

[75] Id.

[76] Supra note 62.

[77] Supra note 24 at 1.

[78] Supra note 60 at 2.

[79] Press Release, Department of Justice: Executive Office for Immigration Review, Office of Legislative and Public Affairs Backgrounder (Nov. 5, 2007).

[80] Supra note 24 at 1.

[81] Id.

[82] Supra note 68 at 3.

[84] Supra note 62.

[85] Supra note 60 at 2.

[86] Supra note 62.

[87] Supra note 24 at 2.

[88] Supra note 42 at 47.

[89] Id.

[90] Supra note 29 at 34.

[91] Id. at 36.

[92] Id at 34; Supra note 54 at 6.

[93] Supra note 54 at 6.

[94] Supra note 29 at 37.

[95] Supra note 65 at 1; Supra note 24 at 3.

[96] Supra note 24 at 3.

[97] Id. at 2-3.

[98] Supra note 62.

[99] Supra note 68 at 3.

[100] Supra note 24 at 2; Supra note 68 at 3.

[101] Supra note 68 at 3.

[102] Supra note 33 at 1; Supra note 24 at 3.

[103] Supra note 24 at 4.

[104] Supra note 42 at 46.

[105] Supra note 24 at 4.

[106] Supra note 60 at 3.

[107] Supra note 65 at 5.

[108] Supra note 62.

[109] Supra note 24 at 4.

[110] Id.

[111] Supra note 54 at 1.

[112] Supra note 60 at 3.

[113] Supra note 65 at 2.

[114] Supra note 68 at 2.

[115] Supra note 62.

[116] Supra note 60 at 3. 

[117] Supra note 65 at 6.

[118] Supra note 62.

[119] Id.

[120] Supra note 24 at 4.

[121] Supra note 60 at 3-4.

[122] Supra note 65 at 2.

[123] Supra note 24 at 4.

[124] Supra note 62.

[125] Supra note 68 at 2.

[126] Supra note 60 at 4.

[127] Id.

[128] Id.  

[129] Supra note 42 at 51.

[130] Supra note 62.

[131] Supra note 24 at 5.

[132] Supra note 42.

[133] Supra note 60 at 4.

[134] Supra note 1 at 141-42.

[135] Leonard Birdsong, Give me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution, 32 Nova L. Rev. 357, 373 (2008).

[136] Id. (quoting Arwen Swink, Queer Refugee: A Review of the Role of Country Condition Analysis in Asylum Adjuication for Members of Sexual Minorities, 29 Hastings Int’l & Comp. L. Rev. 251 (2006).

[137] Supra note 24 at 5.

[138] Supra note 1 at 141-42.

[139] Supra note 60 at 5.

[140] Supra note 24 at 5.

[141] Id. at 141.

[142] Id.

[143] Supra note 60 at 5.

[144] Id.

[145] Id.

[146] Id.  

[147] Supra note 24 at 5.

[148] Supra note 54 at 9. 

[149] Supra note 62.

[150] Supra note 60 at 6.

[151] Supra note 62.

[152] Supra note 24 at 5.

[153] Supra note 54 at 1.

[154] Supra note 62.

[155] Supra note 42 at 17.

[156] Supra note 29 at 126.

[157] Supra note 54 at 4 (quoting Federal Ninth Circuit Court of Appeals Judge Carlos T. Bea in August 10, 2007 speech to immigration judges).

[158] Supra note 29 at 125.

[159] Id. at 8.

[160] Supra note 54 at 5.

[161] Supra note 60 at 6.

[162] Supra note 62.

[163] Id.

[164] Supra note 60 at 6.

[165] Supra note 24 at 6. 

[166] Supra note 62.

[167] Supra note 60 at 6.

[168] Supra note 65 at 9; Supra note 24 at 6; Supra note 62. 

[169] Supra note 62.

[170] Id.

[171] INA § 208(b)(1)(B)(ii).

[172] Supra note 65 at 10.

[173] Supra note 24 at 7; Supra note 62.

[174] Supra note 62.

[175] Supra note 60 at 7.

[176] Id.

[177] Supra note 62.

[178] Supra note 29 at 70.

[179] Supra note 65 at 10.

[180] Supra note 24 at 7.

[181] Supra note 78 at 2.

[182] Supra note 60 at 7. 

[183] Supra note 65 at 10.

[184] Supra note 24 at 7.

[185] Supra note 54 at 7.

[186] Id.; Supra note 62.

[187] Supra note 24 at 7.

[188] Id.

[189] Supra note 42 at 19 (taken from Legal Orientation Program Evaluation and Performance Outcome Measurement Report, Phase II).

[190]Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 415 (2007).

[191] Supra note 54 at 9.

[192] Supra note 190 at 423.

[193] Supra note 54 at 4.

[194] Supra note 24 at 5; Supra note 62.

[195] Supra note 62.

[196] Cf. Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993).

[197] Supra note 62.

[198] Id.

[199] Supra note 54 at 7.

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