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Study shows disparities in how Arizona judges granted asylum

WASHINGTON – Arizona’s 11 immigration judges varied widely in their handling of asylum cases between 2009 and 2014, with denial rates ranging from 21.3 percent for one judge to 96 percent for another, according to Justice Department data.

That range was well within the national average for individual judges on asylum requests, which stretched from denial rates as low as 3.9 percent up to 100 percent, according to an analysis by researchers at the Transactional Records Access Clearinghouse at Syracuse University.

But the TRAC report found that Arizona judges, overall, denied 72.6 percent of cases in the state, well above the national average of 48.5 percent of cases denied.

Experts and analysts cautioned against reading too much into the numbers, noting that differences between judges can stem from everything from personal bias to an applicant’s criminal background, the presence of a lawyer or legal precedent – even whether the applicant is a child or an adult.

Evelyn Cruz, who directs the immigration clinic at Arizona State University’s Sandra Day O’Connor College of Law, said in a phone interview that “there is a disparity and some biases in judges – the bias does exist.”

But that is true in any court case, said Lynn Marcus, co-director at the University of Arizona’s Immigration Law Clinic, noting that how a judge rules is “based on personality and proclivity and outlook.”

The Arizona judges ranged from Judge Irene Feldman, who approved the fewest asylum requests, to Judge John Richardson on the other end. Requests for comments from all the Arizona judges were met by representatives who said the judges would not comment on their decision-making processes, and directed inquiries to Kathryn Mattingly of the Executive Office for Immigration Review.

Mattingly said in an email that “each case has its own set of facts and variables that affect its outcome.” She also said that decisions are based on established precedents and laws.

“Immigration judges adjudicate cases on a case-by-case basis, according to U.S. immigration law, regulations and precedent decisions,” Mattingly said. “Immigration judges consider all evidence and arguments, including information on country conditions, presented by both parties, and decide each case based on that information.”

Those seeking asylum in the United States usually do so out of fear of physical harm or religious persecution back home. They can apply for one of two kinds of asylum requests: An affirmative application, in which someone immediately comes forward seeking asylum, or a defensive application, which is generally a final attempt to keep from being returned to their home country.

Asylum seekers in detention centers are more likely to submit a defensive request, Marcus said, and are more likely to be turned down. Denials at detention centers around the country ranged from 55.7 percent to 100 percent, according to the TRAC data.

Judges in Eloy denied an average of 94.9 percent of cases, and those in Florence denied 89.9 percent. Both are home to prison complexes.

“One of the reasons that the denial rate is so high in detained cases is because you get so many people who are desperate to stay with their families,” Marcus said. “They’re grasping at straws and asylum is the last straw.”

Cruz said that this “last straw” attempt is generally less likely to win a judge’s approval.

“You can’t compare an affirmative, ‘I don’t want to go back, I’m afraid,’ to a defensive, ‘This is my last option available,’” Cruz said. “It can be harder in detention cases.”

In Florence, Judge Bruce Taylor denied 92.4 percent of his asylum cases. Judge Feldman in Eloy denied asylum in 96 percent of her cases, making her the eighth-strictest judge of the 250 studied by TRAC.

The presence or lack of an attorney also seems to play a large role in whether an asylum request is approved or denied, according to the TRAC data. It showed that 89 percent of asylum seekers nationwide who did not have legal representation were denied asylum from 2009 to 2014.

TRAC analysts estimate that 14.6 percent of asylum seekers in the country did not have legal representation.

Marcus said some of the disparities can be explained by “conservative versus liberal judges and how restrictive they are in their interpretation of asylum laws.”

“It could be that some judges want to find applicants not to be credible based on minor inconsistencies and some are willing to overlook inconsistencies and look at their testimony and give them benefit of the doubt,” she said. “Without a doubt, it’s got to include their view of the asylum statutes.”

Mattingly said there is nothing wrong with the disparities on their face, but insisted her office is on guard to make sure judges follow precedents and play by the rules.

“EOIR takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications,” she said.

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Arizona judges varied widely in the disposition of asylum requests, but experts say that could be caused by any number of reasons. And the state’s judges were well within the range of denial rates for immigration judges nationwide, according to a TRAC analysis of Justice Department data.