There Is No Such Thing as a Tough Immigration Judge

by Jason Dzubow on January 7, 2013

in Asylum Seekers, Immigration Court

A recent article in the Sun Sentinel (Broward County, Florida) got me thinking about what it means to be a “tough” Immigration Judge.

Judge Ford, pictured here at his Senior Prom.

Judge Ford, pictured here at his Senior Prom.

The article discusses Judge Rex. J. Ford, who will be celebrating (if that is the right word) 20 years on the bench this April. According to the Sun Sentinel, “In 96 percent of the 2,057 proceedings Ford completed in fiscal 2011, he ordered the person removed from the country.” Judge Ford told the paper: “I follow the book and I don’t get reversed.” The article also notes that Judge Ford is a registered Republican who “garnered attention in 2008 with the release of a U.S. Justice Department report that named him as playing a role in recommending the appointment of immigration judges based on their political leanings.” Judge Ford denied that he considered party affiliation in advocating for specific job candidates.

First, I suppose the Sun Sentinel mentions that Judge Ford is a Republican because Republicans are considered “tougher” on immigration than Democrats (this, despite the fact that President Obama has deported record numbers of illegal immigrants during each year of his Administration). I can’t help but think that this is an unfortunate stereotype–at least to some extent. Maybe I will write a post about that subject in the future, but for now, I will just note that Judge Ford was appointed during the Clinton Administration. In this post, I am more interested in how we decide which IJs are “tough.”

The most objective measure of an IJ’s “toughness” is his asylum denial rate, which can be found at TRAC Immigration, a website affiliated with Syracuse University. The toughest Judges are the ones with the highest denial rates. By this measure, Judge Ford is pretty tough. Of the 256 IJs examined by TRAC, only three deported people at a higher rate than Judge Ford. Does this mean that he is tough? Or does it mean that he doesn’t know what he is doing? Or something else?

Whenever a judge’s denial rate deviates significantly from the mean, it raises a red flag. In Judge Ford’s case, his denial rate of 93.3% is much higher than the national average of 53.2%. But I think it is more important to compare his denial rate with the local average. Why? Because local factors significantly impact denial rates. In Judge Ford’s case, the aliens he sees are all detained. Denial rates for detained asylum seekers are much higher than rates for non-detained aliens. In part because such aliens are less likely to be represented by attorneys and have a more difficult time gathering evidence, but mostly (I think) because such aliens often have no valid defense to removal, and so they tend to file weak (or frivolous) asylum claims as a last-ditch attempt to remain in the United States. Also, many detained aliens are ineligible for asylum due to criminal convictions or the one-year asylum bar. Comparing Judge Ford to his local colleagues, his denial rate does not seem particularly unusual. The denial rate for other IJs at Miami’s Krome Detention Facility (where Judge Ford is listed on the TRAC website) is 89.8%. So while Judge Ford is probably not an “easy” judge, if he were relocated to a different court, with a non-detained docket, I bet that he would grant a lot more cases.

Speaking more generally, where an IJ with a non-detained docket denies asylum cases at a significantly higher level than his local colleagues, I don’t see that as a sign of “toughness.” I see it as a failure to properly apply the law. The INA, the CFR, and various precedent decision from the BIA and the federal courts provide guidance to IJs about how to make decisions. They set forth how to determine if an alien is credible (consistent testimony and submission of reasonably available evidence). They define “persecution,” nexus, and the different protected grounds. In reaching a decision, an IJ is obliged to follow these laws; he is not permitted to “go with his gut.” In my experience, most IJs do their best to follow the law. Therefore, if one IJ stands out in terms of her denial rate (whether it is too high or too low), something is wrong.

In deciding an asylum case, it is not the IJ’s job to be tough or easy; it is her job to analyze the facts in the context of the law. Where an IJ’s denial rate differs significantly from the local average, it may be a sign that the IJ is not following the law. In such a case, the IJ’s supervisors should determine what is happening and whether additional training or some other corrective action is necessary.

{ 4 comments… read them below or add one }

Clara Cerrato February 6, 2016 at 8:27 am

My husband is detained at Broward now. He has no criminal record and filed asylum at the US border. He passed credible fear…but ICE placed at 7500 dollar bond and they called us lucky…where am I going to find the money??? I don’t blame the judge I only pray he will be fair.

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Daniel Bloch December 23, 2015 at 8:15 am

Judge Rex Ford ordered me deported on August 24, 2004. I am a convicted aggravated felon. I was given respect and a lot of time to prepare for my case, almost 4 years. Judge Ford was fair, non confrontational and followed the law. Plain and simple. I read all this negative feedback against Judge Ford but what is a judge to do. He must follow the law. The truth is that America is a very kind country and people like me took advantage of that. It’s not fair for the other person who is doing right. Thank you.

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Jason Dzubow December 27, 2015 at 9:05 am

It takes a lot of self awareness to write what you said here – Thank you for the comment. Take care, Jason

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Daniel Bloch January 28, 2016 at 3:33 am

Thank you Jason. My mind is clear and I have a purpose in life now. I am happy. My whole family lives in the US and they are all USC. I have their support and trust. I work along side many American citizens as well and I am open and clear to them about my past. They don’t judge me for what I did in the past. We get along well. Some of them when they have the time bring me clothes and i-phones from the US. America is the land of second chances. I am planing to file a 212 waiver form next year. God knows.

Blessings, Daniel

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