Politicization at Justice Includes Immigration Judges
Media are a little late to this party. In 2005, immigration lawyer Guadalupe Gonzales sued Justice because she had been passed over as an immigration judge while "less qualified white men" were appointed. No relation to the Attorney General, Gonzales has "prosecuted illegal immigration cases along the Texas border for nearly 25 years." In fact, Justice filled two of its 2004 vacancies with attorneys that "Gonzalez had supervised at the Immigration and Customs Enforcement office in El Paso."
In September 2006, Judge Emmet Sullivan agreed with her, writing that Gonzales had "identified a particular policy that has a discriminatory effect on a particular group." Moreover, he determined that "one judge hired in El Paso did not meet the minimum qualifications for the job."
There are 54 immigration courts in the country and 226 judges, who are considered civil service employees. The caseload of about 300,000 cases annually include foreigners seeking asylum in the United States and petitions from those who have married US citizens.
Last month, Monica Goodling confessed to the House that she had used political connection as a factor in hiring immigration judges. From her written testimony:
Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.
Yet an experienced immigration judge in Miami, Denise Slavin, says that "immigration law is very complex ... so ... it's very good to have someone coming into this area with [an] immigration background."
Immigration Justice Depends On Luck
Perhaps it is not surprising, then, that decisions handed down by immigration judges too often comes down to lady luck, according to an analysis of asylum cases. For example, the study shows that "a person who fled China has a 76 percent chance of winning their asylum case in the Orlando immigration court, but only a 7 percent chance in Atlanta." And "[i]n Miami one judge awards asylum to Colombians 5% of the time. Another judge just down the hall awards Colombians asylum 88% of the time."
The study by three law professors analyzed databases of merits decisions "from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005."
Addressing consistency in the application of the law, former Attorney General Robert Jackson told Congress in 1940: “It is obviously repugnant to one’s sense of justice that the judgment meted out . . . should depend in large part on a purely fortuitous circumstance; namely the personality of the particular judge before whom the case happens to come for disposition.” Yet in asylum cases, which can spell the difference between life and death, the outcome apparently depends in large measure on which government official decides the claim. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.
So while the appointment of political operatives to lucrative ($115,000 per year) judgeships is repugnant, it's only part of the story.
Selected immigration judges appointed by the Bush Department of Justice since 2004:
- Chris Brisack, 48, is a former Texas Republican Party county chairman who served on the state library commission. He is also an oil industry executive.
- Glen Bower -- although nominated by President Bush -- was not confirmed as a tax judge because "he had taken inappropriate deductions for entertainment, gifts and meals for three consecutive years." His qualifications? A former Republican state legislator in Illinois and revenue director for Gov. George Ryan (R), who was convicted on racketeering charges last year. His prosecutor: Patrick Fitzgerald.
- Francis Cramer was also blocked from his nomination to the tax court. The American Bar Association advised the Senate Finance Committee that they were "unable to conclude that he is qualified to serve." Nevertheless, he was made an immigration judge. His qualifications? Former campaign treasurer for Sen. Judd Gregg, R-NH, and commercial and personal injury litigator. Despite the ABA rebuke, the Bush Administration appointed him to the Justice Department's Tax Division. In 2004, shortly after completing a six-month detail to the Justice Department's Office of Immigration Litigation, Cramer was made an immigration judge in Boston.
- Dorothy Harbeck represented New Jersey's last Republican candidate for governor.
- Garry Malphrus was a former Republican aide to the Senate Judiciary Committee. He earned his stripes, so to speak, in 2000 when he "joined other Republicans in making a ruckus (chanting, pounding on windows and doors) outside the Miami-Dade Elections Department -- the so-called "Brooks Brothers Riot" -- during the Bush-Gore recount."
- Mark Metcalf unsuccessfully ran for the Kentucky Senate and U.S. Congress as a Republilcan; he held positions at Justice unrelated to immigration.
- James Nugent was the former vice chairman of the Louisiana Republican Party.
- Bruce Taylor was "president and chief counsel of the right-leaning National Law Center for Children and Families and general counsel to Citizens for Decency Through Law, an anti-pornography group."
See Refugee Roulette: Disparities in Asylum Adjudication by Professors Philip Schrag and Andrew Schoenholtz of Georgetown University Law Center, Georgetown colleague and Professor Jaya Ramji-Nogales of Temple University Beasley School of Law.
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