“It’s like conducting death penalty cases in traffic court,” said Professor Emeritus Rich Vengroff yesterday, beginning his lecture on political asylum yesterday with this harrowing analogy; a legal parallel that highlights the failure of American immigration courts to deliver justice for those that are seeking asylum in the country. It figuratively means that the lives of asylum seekers in the U.S., some of whom will face death in their countries of origin if the appeal process fails, are being determined unfairly. Many asylum seekers go through appalling treatments at the hands of their governments or members in their local communities before seeking asylum only to be enmeshed in a highly unfavorable legal process.
In order to become an asylum seeker, according to the United Nations Refugee Agency, an individual must have a reasonable fear of oppression in his or her country; an unwillingness to return due to this fear as well as being a part of an affected group. These groups are not broadly ranged and mainly concern political opinion, race, religion and a specific set of social groupings. It is important to note that the acceptance of LGBT individuals as a social group in this set of criteria is a fairly recent reform.
Vengroff highlighted an example of an asylum seeker named Patrick who became an activist against his nation’s oppressive government while in college and was brutally oppressed. Arrested and beaten numerous times for his ideologies and attempts to start a political party, Patrick could barely walk when he sought asylum in the U.S.
In terms of numbers, there are an average of 1.1 million asylum seekers per year, but only roughly 70,000 are authorized by Congress to enter the U.S. – this is merely the first step in the process. Once on U.S. soil, the candidate for asylum is categorized as either affirmative or defensive. These categories as well as the geographical location of where the candidate appeals for asylum and even the judge overseeing the case can have a major effect on the outcome.
Affirmative asylum bypasses the court process and had a 74 percent grant rate in 2013. It instead goes through a credible and reasonable fear assessment by a U.S. Citizenship and Immigration Services Asylum officer, who determines the credibility of the candidate’s situation. This process has such a high rate due to its non-adversarial nature in which the candidate sits an interview without the involvement of a prosecutor.
Defensive asylum has a 30 percent grant rate and requires the candidate to appeal in court for asylum status. Unlike ordinary courts in the U.S., the defendant is not provided with an attorney nor a jury. Furthermore he/she enters the courtroom ‘guilty until proven innocent’ and has to assert credibility under the pressure of both judge and prosecutor. The ability for the judge to actively interrogate the defendant also makes personal views a mitigating factor. Statistics comparing judge data demonstrates that 10 percent of the judges produced a third of the grants and 24 of them were on the New York State Court. In states such as California, up to 70 percent of asylum seekers are denied. This demonstrates a great geographical disparity in the process. Political views did not play such an important role with statistics showing Democrat and Republican appointees producing similar results. However, when analyzed closely these results appear to produce a trend whereby female Republicans were granting asylum as much as female Democrats, whereas the males had parity in their decisions. This trend may indicate that gender plays a major role as well.
In terms of the defendant’s outcomes based on individual traits nationality was the most mitigating factor. Statistics demonstrate a great discrepancy between those granted from nations such as China (over 70 percent) compared to Mexico (under 20 percent). These specific nationality statistics can highlight the importance of a judge’s individual views. For instance a judge could see Chinese asylum seekers as educated and Mexican seekers as simply desperate for work. Furthermore, even if the defendant is granted asylum the prosecutor could always appeal and have the process revoked.
Meghann LaFountain an attorney and 2007 UConn graduate described the immigration outlook of asylum seekers as “discouraging” and the overall process that they are put through while seeking freedom in the U.S. from in many cases horrendous political and communal oppression is a legal and emotional “roller coaster.”
With all the flaws in this process on the table, Vangroff clicked to a slide listing a series of suggestions for its reform. Firstly, a minimization of conflicts of interest in court proceedings was called for. This point seeks to rectify the fact that most prosecutors involved are from The Department of Homeland Security and it is their job to strictly regulate immigration thus they are inclined to create a negative outcome. Furthermore, the criteria used to evaluate seekers should be less ideological i.e. a candidate should not be judged based on his or her ideologies nor should the political situation in their country (whether stable or not) determine their grant. Also increased collaboration with the Canadian government needs to allow seekers the opportunity to appeal in Canadian courts upon entry into the U.S. Aside from Vangroff’s suggestions, LaFountain highlighted a further point concerning the reduction of asylee employment authorization waiting time, which is currently set at a minimum of 150 days and can be extended with the postponement of court proceedings.
Vengroff is currently working with the Community Legal Service and Counseling Center in Cambridge, Mass., has done graduate work at the Maxwell School of Syracuse University and has also participated in social science fieldwork across the globe.