Monday, May 12, 2008

In asylum cases, immigration judges under a lot of pressure


Palm Beach Post Staff Writer

Saturday, May 10, 2008

MIAMI — One sister was murdered.

A second sister was raped.

The third sister, Marlene, says her business was burned down by the same Haitian political thugs.

According to her court file, Marlene's family was targeted for one reason only: their support for exiled Haitian president Jean-Bertrand Aristide.

Marlene fled to Florida and applied for political asylum. But her application was recently refused and she faces deportation back to Haiti.

Marlene is not alone in not being granted asylum. Miami immigration judges deny more asylum applicants than any of the 54 immigration courts in the nation.

But Marlene's case is particularly perplexing. The sister who was raped recounted the same family saga to a Miami immigration judge not long before and was awarded political asylum. A different judge heard Marlene's case and turned her down.

Her attorney says the judge denied her petition, in part, because she lacked a death certificate for her sister that listed the cause - murder.

"But how can you ask a person who is being persecuted under a certain government to go to that government for a document that says they are being persecuted?" asks Randolph McGrorty, head of Catholic Charities Legal Services in Miami, which represents Marlene - not her real name. "That isn't going to happen."

Many families in South Florida who are here legally - especially Haitians, Colombians and increasingly Venezuelans — have relatives like Marlene who apply for political asylum in Miami Immigration Court. For them, decisions made there can be confounding and emotionally grueling.

Even some immigration judges have grave doubts about the state of affairs, where judges have hundreds of cases and are forced to make decisions with worrisome speed. They say the U.S. promise to at least temporarily shelter those whose lives are endangered by political persecution is in some cases being abandoned.

"Our country has a legacy of providing due process to everyone," says Judge Dana Marks of San Francisco, president of the National Association of Immigration Judges. "These are death penalty cases at times. If they are denied, some of these people are facing death. We are not providing that due process. It's a very serious situation."

Crackdowns by immigration officials and a spike in deporations since Sept. 11, 2001, have stoked political asylum applications. Of the nation's 54 Immigration Courts, New York, Miami, Los Angeles and San Francisco are the busiest. Miami judges alone decided 19,402 cases in fiscal years 2001 to 2006.

According to a study published last year by three university investigators, of those courts Miami has the smallest percentage of asylum applications approved - 23 percent - compared to a 40 percent average nationwide.

The other court in Florida is in Orlando and it hears much fewer cases. A study by two professors at Georgetown University and another at Temple, found Orlando judges approved 49 percent of asylum petitions, more than twice the rate in Miami.

For certain nationalities the odds are worse. Fifteen percent of Haitians applying for asylum in the Miami court win their cases. Colombians win 27 percent of the time in Miami, while they win much more often in other venues.

"Certain nationalities just have a harder row to hoe here," says McGrorty.

Immigration attorneys and other refugee advocates admit that many asylum applications do not deserve to be approved, because the people are fleeing financial hardship and not political persecution. They say other applicants, however, need asylum.

One set of figures that troubles those observers is the discrepancy in asylum decisions among judges. According to the Transactional Records Access Clearinghouse at Syracuse University, which studied 140,000 decisions made nationwide between 2001 and 2006, some judges approve fewer than 10 percent of asylum applicants, while some approve more than 70 percent.

TRAC listed 242 immigration judges who had decided 100 or more cases. Of the top 10 toughest judges, Miami had four. They were led by Judge Mahlon Hanson who denied 97.6 percent of applicants. Of the top 20 toughest judges in the country, nine were in Miami.

Since cases are doled out to judges at random, the most crucial moment in a case can be when a judge is assigned.

"You know if you're before a particular judge, the cards are stacked against you," says Romy Lerner, staff attorney for the Florida Immigrant Advocacy Center in Miami.

One clear example involves Colombians, whose country has been ravaged by guerrilla war for decades. One Miami judge granted asylum to 88 percent of the 334 Colombians he saw over five years. Another judge granted asylum to 5 percent of 426 Colombians.

As Miami immigration attorney Julie Ferguson puts it: "It's a crapshoot."

The authors of the 2007 study and South Florida observers say certain factors influence how a judge tends to rule. Women judges nationwide grant asylum more often than men: 54 percent to 37.

Experience matters. Many immigration judges are former attorneys for the Immigration and Naturalization Service, now part of the Department of Homeland Security, and they represented the government in asylum cases.

They tend to deny asylum more often. Judges who worked for organizations that defend the rights of immigrants or the poor, a smaller group, tend to approve more petitions.

The judges themselves say the biggest reform needed is more judges and more staff to deal with the flood of cases.

"I'll give you one example," says Judge Marks. "In the year 2000, each immigration judge in Denver had a caseload of 400 cases. Now the caseload for each judge is 1,700 cases."

Federal judges across the country have at least one and sometimes two judicial law clerks who do initial reading of cases and legal research.

"In Miami, we have three clerks for about 20 judges," says Judge Denise Slavin of Miami, vice president of the national immigration judges organization.

Slavin said judges are pushed to get cases done quickly and that isn't always easy.

"We're talking about people who are trying to get documents out of foreign countries," she says. "That can be time consuming."

In fact, just getting paperwork can be a nightmare.

Judge Slavin recalls a series of cases involving Colombians. Paperwork in asylum cases had to be signed by a specific Colombian official.

"But a plane that man was on was hijacked and he was kidnapped so there was no way to get the documents certified," she says.

Marks says the job is enormously demanding.

"You need to be a political scientist," she says. "You need to read through thousands of pages of country conditions and you're being told to do that under the gun."

Marks says that since criticism emerged in Congressional hearings the past two years, the Executive Office of Immigration Review has increased training for judges. Also, new judges must pass an examination, something not necessary before.

Lory Rosenberg, a former judge with the Board of Immigration Appeals, which reviews asylum decisions, says reform is badly needed.

"I hope they can make it better, more fair," she says, "especially when we are talking about life and death."


Anonymous said...

Judge John Opaciuch is one such judge in Miami immigration court. While he was in NY, his statistics were bad enough. Now that he is in Miami he seems to be in line to be one of the worst judges you can get assigned to. Any honest immigration attorney should advise their client to flee the country before trying their case in front of Judge Opaciuch.

Donna L. Manning said...

The stories are all the same. I have listened to these cases for 15years. Just because they said it happened, doesn't mean it happened. Haitians give the same exact stories, the men one story and the women another. Name a country, I'll give you the patent story they tell. That's why their cases are denied. Because they're made up and bogus, just to stay in our country and feed off our system.