Mock Trial

Miamiís immigration judges are not interested in your problems

Awad grew up on a cattle farm in Ethiopia, a member of that country's underrepresented and sometimes persecuted ethnic minority, the Oromo. He had no formal schooling, though he possessed an excellent memory and was quick with figures from a lifetime of managing livestock. He knew violence: Government agents had beaten and killed his father for being a suspected member of the Oromo Liberation Front, a militia in conflict with the majority Tigray government (another Ethiopian clan). His brother also had been killed for his ethnicity, leaving Awad the eldest male in the family — and the next in line for a similar fate.

Awad fled Ethiopia in the mid-1990s, entering the United States with a false passport, as many asylum seekers do. He was detained and he petitioned for asylum. (In the interest of their safety, names of asylum seekers in immigration court are not public record. Unless a case reached a federal appeals court, where records are publicly accessible, names in this article have been changed.)

In 2002, Awad went before an immigration judge in Miami for a hearing. Awad testified his story and so compellingly presented his case that when the judge asked the Immigration and Naturalization Service attorney to state the government's position, the lawyer responded, "He's made out a case for past persecution, and the evidence in the records doesn't indicate that anything has changed since ... so the [INS] would ask the court to grant the respondent's application."

Illustrations by Todd Julie
Illustrations by Todd Julie

Awad's opponents had conceded he deserved asylum. The judge, however, thought otherwise. (Most judges are identified only as "Immigration Judge" on court transcripts, and a judge's name has been provided in this article only when known.) He questioned Awad's claim he hadn't been educated. Then the judge denied asylum because Awad changed the address on his driver's license four months before he changed it with the court. The judge saw this as a reason to doubt Awad's credibility.

Awad could have appealed but instead took his lawyer's advice. He went to Canada. That country took him in.

Every day hundreds of asylum seekers pass through the tall glass doors, under the metal detector, and into the spacious white lobby of the Miami Immigration Court. Nearly every one of them clutches a plastic folder or manila envelope, entire lives carefully penned into the blanks of the photocopied forms within. They ascend via elevator into the honeycomb of fluorescent-lit courtrooms where each will act as an ambassador — not of a nation, but of discrimination, tyranny, ethnic cleansing, or religious turmoil. The asylum seeker must convince a judge that such realities do exist and then politely ask for the right to live without them. For the would-be American in Miami, a successful outcome is less likely than in almost any major city in the nation. Last year the Miami Immigration Court granted 1407 cases and denied 5234 — a grant rate eighteen percent below the national average.

A study released this past July tracked asylum denial rates by individual judges from 2000 to 2005. Seven of the fifteen judges with the highest denial rates in the nation were based in Miami. Judge Mahlon Hanson, of the Miami court, had the highest rate, having denied 96.7 percent of his 1118 cases during those years. Judge Neale Foster, who until his death this past June presided over the court at Krome Detention Center (where illegal aliens are detained), had the third-highest denial rate, at 94.6 percent. The Department of Justice forbids immigration judges from speaking to the press.

"There are courtrooms where you go in and you know you're going to lose," says Barbara Kamali, who has practiced immigration law in Miami for sixteen years. "You won't see a judge with a 99 percent grant rate, but you will see one with a 99 percent denial rate. All the cases going before that judge cannot be that bad."

But the chances of successfully appealing an unfairly judged case are even worse. Such claims are reviewed by an administrative body known as the Board of Immigration Appeals (BIA). A 2004 study commissioned by Congress found that in fiscal year 2001, the BIA granted 24 percent of asylum appeals. A year later, Attorney General John Ashcroft sought to decrease a backlog of cases and streamline the process. Appeals could now be reviewed by a single board member. Rejections no longer had to be explained in a written opinion. And Ashcroft reduced the board in size, from 23 judges to 11.

"Ashcroft basically purged the board of liberal members," says Ira Kurzban, a prestigious Miami immigration attorney and author of Kurzban's Immigration Law Sourcebook.

The grant rate plummeted. Since 2002, only two to four percent of appeals have been granted. "Statistically it is highly unlikely that any asylum seeker denied by an immigration judge will find protection by appealing to the BIA," the study concluded.

Another direct consequence of the streamlining process — and the decline in quality review — was an increase in immigration cases reaching the level of federal appeal. Across the country, federal judges were reviewing more immigration appeals than ever, and they often marveled at the poor quality of judgment exhibited in the asylum cases before them. Their scathing opinions condemning immigration judges in the lower courts made national news. In Miami, however, the asylum seeker is again unlikely to find sympathy. The Eleventh Circuit Court of Appeals, a Miami immigrant's final level of appeal, has yet to reverse a single asylum denial that cannot claim legal error.

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