Attaining asylum in America and other countries can more often depend on pure chance than the real merits of the case. Much research into the decisions made by judges on whether a refugee's plea for asylum can depend on which judge he or she gets, the order of his or her case, the mood of the judge and whether the case is judged on a hot or cold day!
"My father, mother and two brothers are still in Afghanistan. My relatives cannot drive or walk safely in town. They stay at home most of the time. They are afraid that they {the Taliban} will catch them; These men are searching for and killing people who had worked for the previous regime,” explained Makhmadi—who is applying for political asylum in Russia.
Saveta Ayazi, 26, who is in Russia and has also applied for asylum in Russia stated her father was killed by unknown people. She is deeply anxious about the fate of her family in Afghanistan!
But what factors might influence whether those refugees would obtain political asylum in Europe or America? Would a potential judge of their cases really take into account or even be aware of the tense political situation in Afghanistan where the Taliban have returned to power and have been denying women the right to education as well as murdering opponents or any kinds of dissidents? Imagine your whole fate depending on whether you are sent back to face possible persecution and torture. What if your death does not depend on a real assessment of the danger but on a throw of a dice or whether your ticket comes up in a lottery?
It is true that much research indicates that your fate can depend on which judge you are lucky or unlucky to get, the gender of the judge, the type of and length of work experience this judge has, and the order in which you case comes up after other cases and in some ludicrous scenarios such as whether the decision on your case takes place on a hot or cool day! For example, a review of 207,000 immigration court cases over four years discovered a significant impact of daily temperature variations: where if it is hot outside they are less likely to be granted political asylum. {See Anthony Heyes and Sooden Saberian, “Temperature and Decisions: Evidence from 207000 cases,” American Economic Journal of Applied Economics.11, no. 2 2018.}
So if you have suffered political persecution in your home country and are seeking refuge your whole fate might hang on whether it is a cool day or not!
Your case might just depend on what kind of judge you get and whether he or she is lenient or not! For example, Nogales {2009} found a significant variation between U.S. Judges within the same court, including one judge who was 18 times more likely to grant relief than other judges! Rehaag {2012} reaches similar conclusions going as far to describe being granted political asylum 'as the luck of the draw' with one judge 50 times more likely to decide in favor of asylum applicants than other judges.
Another study found that cases could be randomly allocated to different judges with a striking contrast in the outcome of the case. While one harsh judge granted asylum to only 5 % of cases, another would grant asylum to 88% of cases. It is small wonder that the title of this study is called “Refugee Roulette!” {See “Asylum Decisions,” Andrew I. Schoenholtz, Jaya Ramji- Nogales, and Philip G, Schrag, “Refuge Roulette; Disparities in Asylum Adjudication,” Stanford Law Review, 60, no. 2, 2007}.
What and why might be the factors which cause such a marked contrast in outcomes? Well let's look at gender. Female immigration judges are more likely to grant political asylum. In the last study we cited, 53.8% of female judges granted asylum compared to 37.3% of male judges. Why is this the case? We might speculate that female judges are more sympathetic to stories of persecution because they themselves have experienced some form of discrimination and persecution based on their gender. They are more likely to empathize with refugees. A female judge was more likely to have worked with a non-government organization {29%} than a male judge {9%}.
Two other factors which can influence a case is the judge's work background as well as length of work experience. Judges with 6 to 10 years of work experience at the Immigration and Naturalization Service or Department of Homeland Security granted asylum to 42% of applicants compared to only 31.3% of judges who had worked for 11 or more years.
This leads the researchers to wonder if “Perhaps people who spend many years enforcing the immigration law are carrying some of the culture or ideology of their agencies with them when they are appointed to the bench.”
What nationality an applicant can be makes a difference….
For example, while some judges granted asylum to 68% of Chinese applicants, another judge granted no asylum to Chinese applicants. Other evidence emerges that a refugee who has children is more likely to be granted asylum than those without children.
But whether the refugee has access to good legal aid can make a difference as to whether he or she will succeed. The best legal firms will do proper research into the background of where a refugee came from and amass the evidence of widespread persecution and danger in the country he or she is fleeing from. Unfortunately many refugees don't have access to this assistance which weakens the presentation of their case.
Another absurd influence is what is called “the gambler's fallacy.” This is when a judge might try to strike a balance with preceding cases in the belief of some sort of false notion of “probability.” For instance, if the two cases preceding the judge were granted asylum, the third one would be denied it or vice versa by the judge.
What this consistent research demonstrates is how grossly unfair the whole legal system is. One can easily get the impression that judges are playing at justice rather than fairly enforcing it. There is little doubt that the widespread negative stereotypes of refugees as “'criminals, work shy, terrorists and invaders” which are perpetuated by irresponsible sections of the media as well as politicians can have an imperceptible and unconscious influence on judges. At this moment of time there exists a huge deficit in the understanding the plight of refugees throughout the World. There is no real awareness of the deep roots of the refugee crisis.
The historical and social roots of this crisis are scarcely acknowledged or explored. Noam Chomsky points out that the very countries who are most against accepting refugees are the countries which generated the refugee problem in the first place {i.e, Britain, France and America}. Chomsky points out that “Repeated interventions since then in the Middle East and Africa have exacerbated the tensions, conflicts, and disruptions that have shattered the societies. The end result is a ‘refugee crisis’ that the innocent west can scarcely endure." Chomsky gives one example when the American President Obama legitimized a military coup in Honduras…
…which in turn led to a huge refugee crisis in Honduras with refugees trying to flee to America via Mexico.
You won't find those facts in any American newspapers because no American newspaper will publish any of Chomsky's articles.
In order to provide a fairer and more justified immigration system you'll need much more improved training as well as better appointment of judges. People at school need to be more taught a more open minded interpretation of history which allows people to be exposed to different views. It is a devastating indictment of the American legal system not to mention European systems when the fate of a refugee hangs on luck in a “Russian Roulette” system!
Wish them luck indeed!
.
For further reading:
1. Noam Chomsky 's “Who Rules the World?” (2016, New York, Penguin Book) provides you with some background into the roots of the refugee crisis.
2. Daniel Kahneman, Olivier Sibony and Cass R. Sunstein, Noise, William Collins ,London, 2022. This work offers fascinating insights into how we all can so easily make flawed judgments. This book quotes extensive examples of research indicating how the fate of refugees depends on a luck of the draw. It is written in a lucid, accessible and concise way for laymen as well as academics.
3. “Report of the Civic Assistance Committee,” 2021, Moscow.
4. Alasdair MacIntyre's “Whose Justice? Which Rationality?” 2002, London: Duckworth. If you want to deeply explore the cultural and social roots of justice and how views of justice radically vary and might influence the decisions of judges, then this heavy-going book is the one for you. It might be a tough read but is rewarding enough!