August 08, 2006

The Treason Lobby’s Latest Vendetta—Not Enough Asylum Granted by Immigration Judges

The Treason Lobby’s latest pro-alien propaganda effort by its handmaidens in the media and the foundations was released last Monday. It's a report called Immigration Judges—An extensive analysis of how hundreds of thousands of requests for asylum in the United States have been handled has documented a great disparity in the rate at which individual immigration judges declined the applications.

The effort was produced by TRAC Immigration (Transactional Records Access Clearinghouse), which calls itself as "a non-partisan research organization associated with Syracuse University." It was dutifully covered promptly in the press.

An e-mail accompanying the TRAC report explained that "[s]upport for this report -- part of a wider project on U.S. immigration matters -- was provided by the JEHT Foundation [that’s "justice, equality, human dignity and tolerance" . . . of course], the Ford Foundation, the Knight Foundation and the New York Times Company Foundation as well as Syracuse University."

The report publishes EOIR statistics identifying particular Immigration Court judges from the Department of Justice’s Executive Office for Immigration Review (EOIR), for the apparent unstated purpose of chastising them for not granting enough asylum applications in Immigration Court.

I’ve maintained repeatedly that the EOIR should be abolished outright. But the Treason Lobby calls the shots in the media. So the only criticism of the EOIR allowed in print is the type indicting the EOIR for the scandalous crime of not loving asylum-seeking aliens enough.

Fortunately for EOIR-watchers like myself, the report actually lists the EOIR immigration judges who have been granting asylum to just about any alien with a pulse who shows up and asks for it.

The report specifically identifies the main offender (from VDARE.COM's point of view):

"The judge with the smallest proportion of denials [the most asylum grants] of all the judges for this period was Margaret McManus of New York. She declined 9.8% of her 1,638 asylum requests in represented cases. Judge McManus was appointed in 1991. She began her career in private practice and for one five year period was a staff attorney with Legal Aid Society's Immigration Unit."

With an over 90 percent grant-rate for asylum cases, oh that all EOIR immigration judges could emulate former legal aid lawyer McManus . . . the Treason Lobby hopes!

MSM coverage of the TRAC report features anguished hand-wringing over all the un-McManus-like asylum-denying immigration judges out there. But the report is not exactly explicit about remedies. By implication, the Treason Lobby’s solution to its newly-perceived problem of disparate asylum results in the EOIR is that it could be fixed by providing taxpayer-funded lawyers for the aliens— among other bureaucracy-expanding and burden-of-proof-rigging measures.

But this forgets or conveniently obscures a key fact about the nature of asylum cases heard by EOIR Immigration Court judges: many of the cases have already been rejected…and should be denied again!

The fact is that asylum applications can reach the EOIR in two distinct ways. As the EOIR’s 2005 statistical yearbook explains [PDF, page 27]:

"There are two ways that aliens may request asylum: "affirmatively," by completing an asylum application and filing it with a Department of Homeland Security (DHS) Asylum Office [of the U.S. Citizenship and Immigration Services (USCIS) division]; or "defensively" by requesting asylum before an Immigration Judge. Aliens who file affirmatively with DHS, but whose requests for asylum are not granted [by USCIS], may be placed in removal proceedings and referred to the appropriate Immigration Court for further review of the case."

What the Treason Lobby’s henchmen at TRAC Immigration don’t mention in their report is that a good percentage of the asylum applications reaching the EOIR Immigration judges have already been rejected by the USCIS asylum offices.

This omission of the distinction between previously-rejected "affirmative" and newly-filed "defensive" applications skews the EOIR’s statistics by making denial rates seem that much higher.

According to the EOIR’s 2005 statistical yearbook [PDF, page 27], approximately 30 percent of the total number of asylum applications heard in Immigration Court were already "referred"— in other words: rejected—by the USCIS asylum office. In fiscal year 2005, the EOIR received 35,049 asylum applications filed for the first time “defensively” in Immigration Court, but also received 15,551 “affirmative” asylum applications that were already rejected by USCIS asylum officers.

So TRAC Immigration’s interpretation of the EOIR statistics is flawed right off the bat with the 15,551 already suspect asylum applications mixed throughout the EOIR data.

In the asylum statistics provided by EOIR, all of the presumptively valid cases already approved by the USCIS asylum offices are nowhere to be found. They’ve been already cherry-picked out and granted refugee status by the USCIS. Unlike the rejected cases, all the “good ones” never reach the EOIR immigration judges at all.

So by definition, all the inherently suspect and outright bogus applications reach the EOIR in the "affirmative" asylum track.

But how many are completely bogus? No one really knows.

Remember that these "affirmative" (USCIS-rejected) applications are the cases that even the notoriously pro-alien USCIS couldn’t grant. And so what if the EOIR’s judges reject them all over again?

I say bravo to the immigration judges with the courage to deny bogus asylum applications. Well done!

The USCIS has the power to grant refugee status to aliens like it’s going out of style, but not the power to actually "deny" anything. As part of Congress’ ongoing full-employment act for immigration lawyers, the rejected applications are just passed along to the EOIR so that the aliens and their lawyers can give it another try all over again before an immigration judge.

Such is the nature of the beast. Remember that legal formalism, duplicative work and endless litigation represent the hallmark of the federal litigation bureaucracy.

And while the Treason Lobby bemoans the differing asylum "grant rates" of particular immigration judges, they fail to recognize the fact that 15,551 USCIS-rejected asylum applicants are included in the supposedly damning asylum statistics.

So much for the Treason Lobby’s vendetta against asylum-denying immigration judges.

Juan Mann [email him] is an attorney and the proprietor of DeportAliens.com. He writes a weekly column for VDARE.com and contributes to Michelle Malkin’s Immigration BLOG.