Refugee Roulette: Disparities in Asylum Adjudication

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. 1 Jaya Ramji-Nogales is Assistant Professor of Law, Temple University, Beasley School of Law. Andrew Schoenholtz is Visiting Professor of Law, Georgetown University Law Center, and Deputy Director, Institute for the Study of International Migration, Georgetown University. Philip G. Schrag is Professor of Law and Director, Center for Applied Legal Studies, Georgetown University Law Center. The authors thank Dr. B. Lindsay Lowell, Director of Policy Studies at the Institute for the Study of International Migration, for his wise counsel and statistical analyses of the data reported in this article, and Dean T. Alexander Aleinikoff, Associate Dean for Research Larry Gostin, and the Georgetown University Law Center for their generous funding of the cross-tabulations and regression analysis reported in Part III , as well as Temple University, Beasley School of law for support for this project. Many thanks go to Profs. Jonathan M. Ladd and David Hoffman, as well as Luis Carlos Ramji-Nogales, for consulting with us about methods of presenting statistical findings. The authors also wish to thank their very able research assistants, Elizabeth Banaszak, Anaxet Jones, Kristin Ketelhut, Paulo Cesar DeFreitas Mamede, Daniel McLaughlin, Asa Piyaka and Zhi Yu, for their outstanding help with compilation and organization of the data. We are indebted to David Berten and I.V. Ashton, who obtained the immigration court data on which we draw heavily in Part III of this article. We also appreciate the cooperation of the Executive Office of Immigration Review in the Department of Justice and the Asylum Office of the Department of Homeland Security, which provided the databases that we analyzed in Parts II and IV of this article. We also benefited enormously from suggestions by many scholars who read earlier drafts, including Stacy Caplow, Maryellen Fullerton, Lauren Gilbert, Kate Jastram, Audrey Macklin, David Martin, Susan Martin, Stephen Knight, Karen Musalo, Lori Nessel, John Palmer, and Louis Michael Seidman. Special thanks are due to Hiroshi Motomura for allowing us to present this article as a work in progress at the 2006 immigration law professors’ workshop.