From The New York Times:
WASHINGTON — Immigrants seeking asylum in the United States have been disproportionately rejected by judges whom the Bush administration chose using a conservative political litmus test, according to an analysis of Justice Department data.
The analysis suggests that the effects of a patronage-style selection process for immigration judges — used for three years before it was abandoned as illegal — are still being felt by scores of immigrants whose fates are determined by the judges installed in that period.
Critics of the politicization of the immigration bench say it is not enough that in 2007 the department stopped using illegal hiring procedures. The fact that many of the politically selected judges remain in power, they say, continues to undermine the perceived fairness of hearings for immigrants fighting deportation.
The immigration court “is now the seat of individuals who were appointed illegally, and that means that in the minds of many people the court symbolizes illegality,” said Bruce Einhorn, a Pepperdine University law professor who was an immigration judge from 1990 until he retired last year.
Peter A. Carr, a Justice Department spokesman, wrote in an e-mailed response to questions, “The fact that the process was flawed does not mean that the immigration judges selected through that process are unfit to serve.”
The Bush administration has been accused by Democrats and other critics of improperly bringing politics into the business of federal agencies like the Environmental Protection Agency, the General Services Administration and, most notably, the Justice Department, which has been reeling under accusations that officials sought to politicize the apparatus of law enforcement.
This summer, the department’s inspector general released two scathing reports confirming that for several years administration officials illegally took political affiliation into account when hiring recent law school graduates, summer associates, some assistant prosecutors and immigration judges.
The report covering the selection of immigration judges primarily blamed Kyle Sampson, a former top aide to the attorney general, and two former White House liaisons to the department, Monica M. Goodling and Jan Williams, for the practice.
The Justice Department employs more than 200 immigration judges in more than 50 courts around the country. They conduct hearings for noncitizens asking not to be deported, including asylum-seekers who say they fear religious or political persecution.
Although called “judges,” the hearing examiners are not confirmed by the Senate for life; they are covered by federal civil-service laws, which stipulate that they must be hired on the basis of merit under politically neutral criteria. But in early 2004, political appointees took control of hiring the judges away from career professionals and essentially began treating the positions — which carry salaries of $104,300 to $158,500 — as patronage jobs. They screened out liberals and Democrats, while steering openings to White House-vetted “Bush loyalists” and other job-seekers vouched for by Republican political appointees.
Among the judges selected were a member of the 2000 Bush-Cheney Florida recount team, people who worked for Republican lawmakers and a former Republican state official in Illinois backed by Karl Rove, at the time the White House political adviser.
[…] 31 immigration judges had been appointed by the flawed process.
Of that group, 28 remain judges, two left during a probationary period, and one was recently promoted by Attorney General Michael B. Mukasey to the Board of Immigration Appeals, the panel that hears appeals of rulings.
Of the 31 politically selected judges, 16 compiled enough of a record to allow statistical analysis. Nine rejected applicants at a significantly higher rate than other local colleagues, while three were more lenient.
And when asylum denial rates of all judges across the nation were ranked in comparison to their local peers, 8 of the 16 scored above the 70th percentile — meaning they have been among the judges least likely to grant asylum.
Together, these 16 judges handled 5,031 cases and had a combined denial rate of 66.3 percent — 6.6 percentage points greater than their collective peers.
Let’s meet some of the judges, kids!
Judge Chris Brisack–Houston, former Republican county chairman, works in the oil business
Judge Garry Malphrus–(wiki)–1997 until 2001, Chief Counsel to the Senate Subcommittee on Criminal Justice Oversight under Senator Strom Thurmond, from 2001 to 2004, Judge Malphrus served as associate director of the White House Domestic Policy Council, member of the so-called Brooks Brothers Riot, the Republican orchestrated protests during the 2000 Presidential Election Florida Recount.
Judge Earle Wilson–(NY Times article)–first worked in Miami with an 88.1% denial rate in asylum cases (almost 10% higher than average), then in Orlando, where his average denial rate was 80.3%, over 29% higher than other judges, previously worked in the Office of Immigration Litigation at the Justice Department.
Back to the NYT article:
Charles H. Kuck, the president of the American Immigration Lawyers Association, said all the judges, regardless of their qualifications, should reapply for their jobs alongside other applicants.
“Any judge who was appointed through a process that was not impartial should step down and go through the process again to make sure they should be reappointed,” Mr. Kuck said.
But Glenn Fine, the Justice Department inspector general, said at a July 30 Senate Judiciary Committee hearing on his investigation that “it would be difficult if not impossible” to decide whether a sitting judge was qualified.
Mr. Fine also noted that the judges could not be fired because they were now protected by civil-service statutes — the same laws violated when they were selected.
At that hearing, Senator Sheldon Whitehouse, Democrat of Rhode Island, expressed frustration about the lack of remedies.
“The so-called ‘loyal Bushies’ that they stuffed into these positions will also have gotten away with it and will be there essentially indefinitely, protected by civil-service protections that they don’t deserve,” Mr. Whitehouse said.
Stephen H. Legomsky, an immigration law professor at Washington University in St. Louis, said the attorney general should reassign the judges to nonadjudicatory positions at the same pay, which would not violate civil-service rules.
Last year, an academic study of 140,000 decisions over four years found sharp differences in the outcome of cases involving immigrants of the same nationality, even among judges in the same city.
The authors of the study, called “Refugee Roulette,” concluded that the facts of a case may be less important in determining whether someone is deported than which judge hears the case.