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New Report Out on Asylum Denial Rates by Immigration Judge

A new report out by Transactional Records Access Clearinghouse (TRAC) at Syracuse University details asylum denial rates by individual judges across the country from 2006-2010 and compares them across national trends. The national denial rate is 53.2%. TRAC states that denial rates can vary among judges because of nationality of the applicant, whether the person is represented, and the individual personal perspectives brought to the court by the judges. TRAC statistics are for judges reporting having at least 100 cases in the reporting period and having decided at least 25 of those. Nationally, 11% of asylum seekers do not have counsel, and of those, 88% of their cases are denied by immigration judges. The nationality of asylum seekers can make a difference in the statistics because asylum seekers have different types of grounds for which they seek asylum depending upon where they are from and the country conditions. The top four countries from which people seek asylum are China, Haiti, El Salvador and Columbia. However, people from over 100 countries sought asylum. Where members of a particular nationality tend to settle in the U.S. can also affect the denial statistics by judges or regional courts. Because of the risk of harm and even death to asylum applicants if forced to return home, immigration court proceedings can be, as Immigration Judge Dana L. Marks told the New York Times, “like trying death penalty cases in traffic court.” Because of substantially increased enforcement, the immigration courts are inundated with cases having substantial backlogs, and judges are pressured to conclude cases.

Seattle Judges Deny More Cases Than the National Average, According To TRAC
In the Seattle Immigration Court, there are three judges downtown and one or more judges at the Tacoma based Northwest Detention Center. On occasion, some judges do double duty at both locations, and sometimes there are roving judges in Tacoma from other parts of the country. The TRAC report gives detailed statistical information by judge about caseload, denial rates, and nationality of applicants before the Court. Collectively, the Seattle/Tacoma judges denied more cases than the national average, 59-79% compared to the national 53.2% denial rate. The judge at the Tacoma Northwest Detention Center denied 79% of her cases. This is primarily because 53% of her case load are detainees who lack legal counsel compared to the national average of 11% of asylum seekers lacking counsel. In Seattle, the top countries of origin for asylum seekers were from India, Mexico, China, Guatemala, El Salvador, Kenya, Eritrea and the Ukraine.

Detainees Lack Access to Counsel and Face High Asylum Denial Rates
In a September 2010 study called Isolated in Detention, the National Immigrant Justice Center, which surveyed 150 detention facilities nationwide, found that a majority of detainees around the country lacked sufficient access to counsel. This included limited phone privileges, lack of “know your rights” briefings, lack of available affordable legal services, and insufficient pro bono services for the detainee population, with most non-governmental organizations having staffs of five or less. Given that the Obama administration has been deporting 400,000 people a year, and at any given moment there are 32,000 beds filled at detention centers, the lack of available legal services directly impacts success in court.

Most Americans do not realize this: Immigration Court proceedings are civil administrative proceedings within the U.S. Department of Justice, but they are adversarial in nature. Because they are not criminal proceedings, there is no constitutional right to counsel at government expense. Thus, there are no public defenders for people in immigration court. While there is a legal right to counsel, there is no right to taxpayer supported counsel. This means people need to hire and pay for private counsel or go without. Very few people are able to hire pro bono counsel because of the limited number of organizations to run such programs and the limited number of counsel that take cases for free.

Thus, although the national average for asylum denials has declined in recent years, it is an uphill battle for any applicant. In Seattle, the chances of winning asylum are even tougher because the judges have higher than average denial rates. Appallingly, a detained person without counsel stands a very low chance of success.