Some of the comments to my recent piece, How Immigration Courts Contaminate American Justice, reveal a visceral outrage more virulent than that expressed over other hot-button issues, i.e., capital punishment, affirmative action, abortion. The anger, I sense, is based not so much at the fact that immigration courts might be prejudiced when adjudicating deportation and asylum cases -- as many of the immigration judges clearly are -- but that misconduct and prejudice by immigration judges, in the readers' view, is a lesser evil than the threat that immigrants pose to our way of life, and the consequent need to banish immigrants from our society. I should note that my piece did not focus on the adjudication of cases involving illegal aliens. In fact, illegal aliens are readily deportable without any extended adjudication process. The Obama administration has deported well over a million illegal immigrants, an increase of 6 percent over the numbers at the end of the Bush administration. Last year, according to Immigration and Customs Enforcement (ICE), over 396,000 illegal immigrants were deported, more than any other year in its history. The litany of abuses I describe in my piece relates not to illegal immigrants but to the thousands of cases in the immigration courts involving non-citizens who are lawful permanent residents in the United States whom the government seeks to deport, or persons who seek asylum in the United States from claims of persecution in their native country.
The prejudice expressed in many of the comments is not surprising. "Opening the floodgates" to millions of people, mostly Latinos, and granting amnesty to millions of others, causes widespread anxiety and fear. This reaction is often couched in economic arguments, but probably is influenced more by bias against racial and other disfavored classes than economics. Sometimes the prejudice is latent. For example, one study shows that economic anxiety is greater when Latino immigrants are featured than when European immigrants are featured. Such latent prejudice has also been demonstrated in our national policies: we excluded all homosexuals until 1990 on health-related grounds, banned HIV-positive aliens until 2010 on health-related grounds, and locked up over a thousand Arabs, Muslim, and Asians after 9/11 as suspected "terrorists." Indeed, some immigration judges do not hide their prejudices, as several federal circuit courts have noted: one immigration judge launched into a gratuitous diatribe against Chinese immigrants lying on the witness stand, which spanned twelve pages of the transcript; another judge excoriated an asylum seeker, asserting that "you and other Indonesians that just want to live here because they enjoy the United States;" another judge without any factual basis reviled asylum applicants as "religious zealots whose exercise of religion was offensive to a majority."
Latent prejudice also shows up in other ways: As reported in the ABA's recent report, Reforming the Immigration System, stark disparities exist in asylum grant rates among immigration judges, even with respect to nationals from the same country. One recent study found that asylum seekers who appeared before judges in the same jurisdiction had a 5% chance of prevailing before one judge and an 88% chance of prevailing before another judge in the same court, even though the facts in these cases were not significantly different. Justice is skewed when a decision as to whether to grant asylum to a noncitizen depends on which judge hears the case.
And then there is the problem of irrational justice. We don't mete out justice in the U.S. based on chance, or a "flip of the coin." But that is exactly what can happen in immigration courts when judges make irrational decisions based on an arbitrary and irrational application of immigration law. A good example is the recent Supreme Court decision in Judulang v. Holder in which Justice Elena Kagan for a unanimous court struck down a decision by an immigration court deporting a legal alien as arbitrary and capricious, and suggested that it was analogous to a judge flipping a coin to decide whether an alien can stay or should be exiled. The facts are straightforward. Judulang, a native of the Philipines, came to the United States in 1974 when he was eight, and has been here lawfully ever since. He was involved in a fight when he was 22 years old in which another person killed someone, and Judulang pleaded guilty to voluntary manslaughter. In 2005 Judulang pleaded guilty to theft, after which the Department of Homeland Security sought to deport him based on his commission of the manslaughter, an aggravated felony which the immigration law labels a "crime of violence." Judulang sought a waiver from the Attorney General against being deported, a routine application, but was rejected. Why? Because in the complex and convoluted world of immigration law, which the Supreme Court has characterized as "dizzingly confusing," there has to be a comparable crime of violence that would bar an alien from being "admitted" into the United States, or being "excluded" from returning. But since there is no comparable "crime of violence" for purposes of excluding an alien, Judulang, according to the immigration judge, could not apply for a waiver.
If all this sounds crazy, it's because it is. One would naturally think that an immigration court in deciding whether to allow an alien to stay in the United States or be deported would review the alien's fitness to reside in this country, and consider such factors as the seriousness of the offense, duration of the alien's residence, impact of deportation on his family, evidence of rehabilitation, and other relevant character evidence. Linking deportation to whether there is a match between the crime for deportation and the crime for exclusion is illogical and perverse. Moreover, it makes the deportation decision a game of chance. Indeed, as the Supreme Court noted, an immigrant's fate hinges on the immigration official's charging decision. "An alien appearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country."
Judge Learned Hand wrote that deportation decisions cannot be made a "sport of chance." But the Judulang case is a good example of the bizarre, irrational, fortuitous, and inhumane operation of the immigration judicial system. And critically, the tens of thousands of decisions in immigration courts annually -- many resembling excesses like Judulang -- will almost never be seen or reviewed by a federal appeals court. Without transparency or accountability, the immigration court system hardly promotes public confidence that justice is being done.