IMMIGRATION JUDGES AND U.S. ASYLUM POLICY

Vol. 26 No. 7 (November 2016) pp. 138-140

IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, by Banks Miller, Linda Camp Keith, and Jennifer S. Holmes. Philadelphia: University of Pennsylvania Press, 2015. 248pp. Cloth $69.95. ISBN: 978-0-8122-4660-5. Ebook $69.95. ISBN: 978-0-8122-9037-0.

Reviewed by Rebecca D. Gill, Department of Political Science, University of Nevada, Las Vegas. Email: rebecca.gill@unlv.edu.

In IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, authors Banks Miller, Linda Camp Keith, and Jennifer S. Holmes undertake an enormous task. They attempt to develop a wide-ranging, data-driven understanding of the administrative decision-making processes surrounding petitions for asylum in the United States. What results is the most comprehensive empirical study of American immigration judges to date. Although this book may be difficult reading for lay audiences, it is undoubtedly a critical contribution to our scholarly and practical understanding of this important administrative process.

The breadth of the analysis in this book is made possible by the extraordinary efforts of the authors to generate an original dataset of over half a million asylum cases between 1990 and 2010. The scope of this project is truly breathtaking. Using these data, the authors develop and test what they call a “cognitive” model of immigration adjudication, upon which they build a number of empirical analyses to test various attitudinal, strategic, and contextual hypotheses about the decision making process. Overall, they find that asylum decisions are driven largely by the policy predispositions of the Immigration Judges (IJs), along with a variety of other factual and contextual elements.

Chapters 1 and 2 of the book serve as an introduction to the project. Here, the authors provide a thorough, no-nonsense overview of the asylum process in the United States. The authors establish a strong case for studying the work of IJs, particularly their decision making processes in asylum cases. In Chapter 2, the authors turn their focus to the database they have created. In itself, this dataset is a critical contribution to the discipline, especially since they have made their dataset publicly available. Although the links given in the book do not lead to the replication data, interested readers can find these data and the online appendices using a Google search for the first author’s Dataverse page.

The analyses in the book rely upon two key operational measures: the nature of relief granted the petitioner and the ideology of the individual IJs. The authors eschew the relief/no relief dichotomy in favor of a four-level ordinal variable: no relief, withholding of removal under the Convention Against Torture (CAT), withholding of removal (not under CAT), and a grant of asylum. However, the IJs generally do not have the ability to choose among this array of options, except in the rare case that the litigant applied for relief under all three grounds. I consider this a minor quibble, given the fact that these two “middle” options make up such a small fraction of the data. However, I take this fact as an indication that the judges are not free to choose. If they could, would not many more of the IJs choose one of these in-between categories of relief?

The second key operational measure is a factor analysis score that the authors use throughout the book as a measure of IJ ideology. This measure is initially called “policy proclivities,” but soon morphs into “asylum liberalism.” The factor score pulls together information about IJ career trajectory. It associates previous experience in relevant government agencies with conservatism on asylum policy, and is only weakly associated with appointing president ideology. Of course, what the authors are really measuring here is something like career socialization, although a person’s career path likely both reflects and shapes their approach to asylum policy. I might not have called this a measure of “liberalism,” but I think that the measure—in the context of the models in the other chapters—works just as well if we understand it to be a measure of socialization instead of ideology. [*139]

The multivariate analyses begin with Chapter 3, which defines and tests a cognitive approach to IJ decision making. This theory assumes a “mixed approach” to IJ decision making, where “policy predispositions are moderated in certain circumstances but not in others” (p. 58). The authors take an interdisciplinary approach here, merging the work of legal academics with international relations and judicial behavior scholarship. Testing their hypotheses requires investigating a large number of interaction terms, and the graphical representations of these relationships are not very clear. The authors find evidence of large disparities in IJ outcomes based upon which IJ is doing the deciding. This is a problem, of course, because it means that much of the outcome depends upon the “luck of the draw” (p. 81). The authors recommend additional training. Their career path measure suggests that some of this gap is a matter of previous work experience, so it seems that training could be focused on bridging the gaps that emerge on the basis of these different career paths.

The next two chapters expand the cognitive model to incorporate the effects of local conditions and the Board of Immigration Appeals (BIA) on IJ decision making. In Chapter 4, the authors test the effects of a number of existing theories about how immigrants within communities impact their local environment and the policy decisions of local public officials. The authors find that IJs react differently to the local conditions based on their ideology. They also find important effects of the presence of NGOs and sizeable diaspora communities; both of these findings may be critical to developing a strategy for developing support networks for asylum seekers across the country.

In Chapter 5, the authors probe the relationship between the IJs and the BIA. The authors provide a helpful summary and timeline of the various BIA reforms, some of which prove key to understanding BIA decision making and its impact on the work of the IJs. In their preliminary analyses, the authors analyze the decision to appeal to the BIA and the outcomes of these appeals. The biggest driver of the decision to appeal is, unsurprisingly, the presence of legal representation. The authors find no evidence that the ideology of the original IJ is related to the probability of an appeal or the probability that an appeal will be allowed. This finding seems to imply that the decisions of conservative IJs are no more likely to be appealed from or reversed than those of liberal IJs. Chapter 3 shows evidence that IJ liberalism does matter in predicting outcomes in the immigration courts. However, the results from Chapter 5 seem to show that the conservative IJs are not systematically too harsh, nor are the liberal IJs systematically too lenient.

At the end of Chapter 5, the authors revisit their model from Chapter 3, this time including measures of the BIA’s institutional context. The intent here is to determine whether the IJs are sensitive to the BIA’s needs and preferences. They find some evidence that IJs may be less worried about avoiding review when the BIA is overloaded, although the differences are quite small in magnitude. The IJ’s ideology remains a key predictor of outcomes.

In Chapter 6, the authors turn to an evaluation of the effects of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Real ID Act. They explain the original intent of these laws, which generally was to limit perceived abuses of asylum. They use a time series model to determine the effect of these laws on the number of successful asylum applications. They find evidence for a “policy gap,” where these bills led to an overall increase—not decrease—in the number of asylum applicants granted relief.

In the final chapter, the authors discuss their findings and what they might mean for the future of asylum reform in the U.S. They focus a lot of attention on what should be done about the disparities in asylum application outcomes in the immigration courts. Here, the authors downplay the idea that these disparities should be the main focus of reforms, arguing instead that the quality of the individual IJ decisions should be the central concern. It is not immediately clear to me why improving the quality of decisions would not also decrease disparity, especially if this is [*140] achieved through supplemental training that can mitigate the socialization differences that are evident across different career paths among the IJs.

Overall, this book is an important contribution to our understanding of administrative decision making in asylum cases. In my view, this book’s key contribution is not just the impressive dataset, but also the creative use to which it is put. I anticipate that readers without quantitative methods training may have some difficulty with this book. My sense is that even legal academics who are very knowledgeable about—and interested in—the substance of the book would have trouble navigating past the asides about the nuts and bolts of the statistical analyses. But this is a problem inherent in this kind of endeavor, and I hope it does not deter researchers and practitioners from reading this ambitious and innovative book.

***************
© Copyright 2016 by author, Rebecca D. Gill.