“I have never seen courts as dire as these ones in the context of granting asylum, which seem to be so far out of the mainstream, not just of other courts around the country but of the actual law itself of asylum,” said Kuck, who teaches immigration law at Emory University.
The Executive Office for Immigration Review — the arm of the U.S. Justice Department that oversees the nation’s 430 immigration judges — declined to comment on TRAC’s figures and said its policy prohibits its judges from speaking to the news media. But the federal agency released a prepared statement, saying the judges “consider all evidence and arguments presented by both parties and decide each case in a manner that is timely, impartial and consistent with applicable law and case precedent.”
“EOIR takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications,” the agency said. It added that it monitors judges “through an official performance work plan and evaluation process” and that they are also supervised by assistant chief immigration judges.
The Trump administration has steadily moved to tighten the asylum process. Last year, for example, then-U.S. Attorney General Jeff Sessions issued a ruling to block asylum for victims of domestic abuse and gang violence. And this month, the government announced it would not allow asylum claims from people who do not apply for safe haven in at least one country they pass through before crossing the U.S.-Mexico border. Federal courts have halted both measures.
In a conference call with reporters Tuesday, the head of U.S. Immigration and Customs Enforcement said some people applying for asylum are fraudulently posing as families, believing they will be able to disappear into the shadows after their claims are rejected and they are ordered to leave.
“They are gaming the system, as we have said, time and time again,” Acting ICE Director Matthew Albence said.
To win asylum in the United States, people must demonstrate they have suffered persecution in their home country or have a well-founded fear of experiencing it on account of race, religion, nationality, membership in a particular social group or political opinion. They can apply at a port of entry or after they have arrived in the Unites States by filling out a 12-page application and submitting to interviews with the government.
They may also request asylum as a defense against deportation. Immigration court judges — who are appointed by the U.S. attorney general — rule on those claims after hearing from the applicants, their attorneys and ICE lawyers. Often, legal briefs and evidence are submitted and witnesses are questioned.
Ashley Tabaddor, president of the National Association of Immigration Judges, warned against comparing immigration judges’ asylum denial rates, saying they can be assigned wildly different types of cases. Some applicants may have criminal convictions and be behind bars, while others may have clean records and are not detained. Some may present strong claims, she added, while others may offer weak arguments and draw stout opposition from ICE.
“The very foundation of trying to distill these decisions into these numbers and then to try to use those numbers for certain assertions just doesn’t make sense,” she said.
Three years ago, Emory University law students working with the Southern Poverty Law Center observed proceedings overseen by five Atlanta Immigration Court judges over a seven-week period. They shared their findings in a letter to EOIR in 2017, saying the judges "made prejudicial statements and expressed significant disinterest or even hostility toward respondents in their courts," canceled hearings at the last minute with little notice and denied bond to immigrant detainees in a majority of cases.
Among the judges they observed was Earle Wilson, who had the highest asylum denial rate in Georgia and the sixth highest in the nation at 98 percent between fiscal years 2013 and 2018. During that time-frame, most of the asylum claims he heard came from Central Americans, followed by Mexicans and then Haitians. Appointed to the bench in 2005, he worked as a trial attorney for the Justice Department's Office of Immigration Litigation and as a prosecutor with the U.S attorney's office in Maryland.
The Emory students who observed Wilson said he typically leaned back in his chair, placed his head in his hands and closed his eyes during hearings. He spoke to people with his back turned toward them and only became alert when he scolded someone, according to their observations.
Wilson declined to be interviewed for this article. But in a pair of court hearings he presided over in Atlanta this week, he appeared engaged and focused, at times bantering with the attorneys sitting before him and quizzing them about their legal arguments. He was firm but polite with two separate immigration detainees, neither of whom were seeking asylum. Presiding in a judge’s black robe, Wilson worked without a clerk at this side but had the help of Spanish interpreters. The detainees appeared by video link from a federal immigration detention center near the Georgia-Florida Border.
In one of the cases, Wilson indicated he would halt deportation proceedings against a Mexican man, underscoring that his 12-year-old daughter had been undergoing surgeries to repair a cleft palate and would likely need more medical attention in the United States. The detainee’s attorney, Marshall Cohen, appeared surprised after the hearing, calling the judge’s decision rare.
Most asylum seekers, though, don’t received favorable rulings in Wilson’s courtroom.
Two years ago, Wilson rejected an asylum claim from a married Iranian couple living in North Georgia. The couple — they asked that they not be named to protect their safety — fear they and their three young children will be harmed in Iran because they are Christians. Wilson ruled they had not shown they had experienced persecution or that they have a well-founded fear of it. They appealed, calling Wilson’s decision erroneous. In a 2-1 decision, the Board of Immigration Appeals dismissed their appeal in April. Now they are taking the case to the 11th Circuit Court of Appeals with the help of Kuck, the immigration attorney.
“What kind of asylum case are you looking for, Mr. Wilson?” the father said incredulously in an interview this week. “We need a judge, not someone who comes to the court with his mind already being set.”
Asylum grant and denial percentages by Georgia Immigration Court judge for fiscal years 2013-2018
Asylum Decisions/Grants %/Denials %
Njeri Maldonado 133/3/97
Saundra Arrington 304/3.9/96.1
Dan Trimble 425/5.6/94.4
Randall Duncan 207/5.8/94.2
Average Denial %:95.4
Earle Wilson 1,204/1.9/98.1
William Cassidy 240/4.2/95.8
Scott Criss 183/5.5/94.5
Wayne Houser Jr. 130/6.9/93.1
Michael Baird 152/7.2/92.8
Jonathan Pelletier 425/8.9/91.1
Average Denial %: 94.2
* The nation’s average asylum denial rate was 57.6% for fiscal years 2013-2018.
* The nationwide backlog of Immigration Court cases, which includes asylum claims, totaled 945,711 as of last month.
* In the fiscal year ending in September, Salvadorans, Honduras, Guatemalans and Mexicans filed the top four highest numbers of asylum claims nationwide, respectively.
Source: Transactional Records Access Clearinghouse at Syracuse University