A Roll of the Immigration Law Dice

A detainee at a Homeland Security detention center looks out from a room. (AP Photo/Gregory Bull, File)

In EsquireBrian Castner walks us through the case of Captain Noorullah Aminyar, an Afghan army officer seeking asylum in the U.S. following threats and retaliation by the Taliban that have already left his younger brother dead. He’s been in a Homeland Security detention center for three years now, his application subject to a system of immigration law that is both incredibly complex and incredibly capricious.

There is no legal definition of “de-facto government,” no clear standard that Borowski was asked to meet. U.S. asylum policy is administered case by case by several hundred immigration judges across the country. That makes decisions nonstandard, increasingly partisan, and—most frustratingly for the participants—unpredictable. Immigration judges have wide discretion, by design. “If I rob a bank and get arrested, I have a pretty good idea what my sentence will be,” said Alex Nowrasteh, an immigration policy analyst at the Cato Institute, “but if I request asylum, anything might happen. The immigration legal code is second in complexity only to our federal income tax system.”

The Transactional Records Access Clearing House at Syracuse University publishes the asylum denial rates of every immigration judge. Those rates vary widely from judge to judge and city to city; for example, from 2011-2016, the El Paso, Texas court denied 96.6 percent of its 1,042 requests, while Arlington, Virginia approved 70.3 percent of its 3,717 cases.

Art Arthur, a fellow at the conservative Center for Immigration Studies and a former immigration judge (2011-2016 denial rate: 90.4 percent), said that his challenge as a judge was that “the law is very narrowly tailored. You want to be empathetic, to alleviate pain and protect someone. But asylum law doesn’t say that if something bad will happen to someone in their home country, they should be granted protection. There are specific guidelines, and it’s important to maintain fidelity to the law.” He is adamant that clear standards exist—”there’s fifty years of case law to follow,” he said—but he also admitted “at the end of the day, you can’t take human nature out of the system.”

Read the story