The inherent randomness is commonly known as "refugee roulette," a phrase coined in a 2008 Stanford Law Review report. Analyzing more than 270,000 decisions by immigration judges and asylum officials over a 4 1/2-year period, the authors concluded that "in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge."
Jaya Ramji-Nogales, a professor at the Beasley School of Law at Temple University and a coauthor of the refugee roulette study, says the problem boils down to a matter of time and resources. Immigration judges typically lack both. Facing a backlog of more than 354,000 cases — an 85 percent increase from five years ago — judges are forced to make snap decisions about complex legal issues that can have life-or-death consequences. A recent Washington Post story quotes one immigration judge describing the current system as "like doing death-penalty cases in a traffic-court setting."
Rami-Nogales says, "In comprehensive reform, we see money for night-vision goggles at the border, everything the border patrol could possibly want. But we don't see the same funds directed to immigration courts. That's huge. Who wants to be the person in this political climate that says, 'Let's pour money into immigration court'?"
Every asylum seeker has a heartbreaking story. Unfortunately, the tales aren't always true. In 2012, federal prosecutors in Manhattan filed an array of charges against 30 attorneys, paralegals, interpreters, and others accused of helping dozens of Chinese immigrants file fraudulent asylum claims. One lawyer was caught on tape telling his client to "just make it up" if immigration officials probed for details of the forced-abortion narrative he'd scripted for her.
The high-profile Chinatown case — it was the subject of a front-page story in the New York Times, headlined "An Industry of Lies" — has contributed to backlash against asylum seekers that advocates fear could have tragic consequences for those with legitimate claims.
The elected official leading the campaign against asylum seekers is Bob Goodlatte, the Republican chairman of the House Judiciary Committee. On February 11, Goodlatte presided over a hearing for the Judiciary Subcommittee on Immigration and Border Security ominously titled, "Asylum Fraud: Abusing America's Compassion?"
Goodlatte began, "Our nation's record of generosity and compassion to people in need of protection from war, anarchy, natural disaster, and persecution is exemplary and easily the best in the world. We grant asylum to tens of thousands of asylum seekers each year. We expect to continue this track record in protecting those who arrive here to escape persecution. Unfortunately, however, because of our well-justified reputation for compassion, many people are tempted to file fraudulent claims just so they can get a free pass into the United States."
Goodlatte claimed that 70 percent of asylum applications are fraudulent and stated that "the rule of law is being ignored, and there is an endemic problem within the system that the [Obama] administration is ignoring."
The 70 percent statistic comes from a 2006 report from the Government Accountability Office on benefit fraud. The authors analyzed 239 asylum cases and concluded that 29 of them — or 12 percent — were fraudulent. To reach the alarming 70 percent figure, Goodlatte included an additional 138 cases from the report that exhibited "possible indicators of fraud."
He also cited "a separate DHS report [that] shows that the Obama administration is abusing current law by not detaining certain individuals seeking asylum."
Upon request, Goodlatte's office provided for this article a draft copy of a 2012 DHS report to Congress titled "Detained Asylum Seekers." According to the report, 68,795 people applied for asylum in 2012. Of those, 24,505 (roughly 36 percent) were detained, including 796 in New Jersey and 302 in New York. The average stay was about 79 days, but nearly 25 percent were held for 90 days or longer.
In fact, anyone who sets foot in this country and seeks asylum is detained, if only briefly. Those who meet the criteria to be considered an "affirmative" applicant — meaning they applied within a year of arriving, possess proper identification, and followed all regulations — rarely are detained for any length of time.
"In practice, only a very small number of affirmative asylum applicants are detained," the report reads. "On the other hand, many defensive applicants . . . are detained for at least some portion of the processing of their immigration cases."
Those "defensive applicants" — people fighting deportation because they fear returning to their homeland, including those who passed a "credible fear" interview — accounted for more than 23,000 cases of detention in 2012. Defensive applicants include people who failed to apply for asylum within a year of arriving in the U.S., and individuals like Hussein Mohamed, the young Somali detained in New Jersey. His mistake was to cross the border on foot and immediately approach a border patrol agent to make his claim. By crossing on foot and essentially turning himself in, Mohamed became a member of a subset of asylum seekers subject to "expedited removal," a type of deportation proceeding with mandatory detention.