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Refugee and Immigrant Program Director Michele Garnett McKenzie quoted in St. Paul Pioneer Press on Disparities in Immigration Court Rulings
8/4/2006 1:02 PM

In Minnesota, immigration evenhandedness
There's wide disparity nationally in asylum decisions, but region's two judges are close to the norm

They hold the power to grant citizenship or to deport. They can give asylum or send desperate people back to a country in turmoil. They do much of their work outside public scrutiny.

That anonymity has been shattered in recent months. Recent allegations of unprofessional conduct and a rebuke of sorts from U.S. Attorney General Alberto Gonzales have cast an uncomfortable spotlight on the nation's 208 federal immigration judges, including two in Minnesota.

And a report released this week guarantees the glare won't go away any time soon.

Transactional Records Access Clearinghouse, a nonpartisan research division at Syracuse University, crunched and analyzed nearly 300,000 asylum decisions between 1994 and last year. The report ranked 208 immigration judges in cases where the asylum applicant was represented by legal counsel.

It concluded that there is a wide and troubling disparity in how these cases are decided by immigration court judges, who actually are administrative law judges employed by the U.S. Justice Department and regulated by the agency's Executive Office for Immigration Review.

The report, for example, found that one judge in Miami, Maylon Hanson, denied nearly 98 percent of the 1,118 asylum cases he presided over in the past five years. In contrast, Mary McManus, a New York immigration judge, denied just fewer than 10 percent of the 1,638 cases she handled during the same period. The report also found wide variations in similar cases involving judges within the same court jurisdiction.

Minnesota's two sitting federal immigration judges — Joseph Dierkes and Kristin Olmanson — had denial rates much closer to the median the report found — 65 percent. Dierkes, on the immigration bench here since 1997, denied nearly 64 percent of the 667 cases he handled from 2000 to 2005. Olmanson had a 77 percent denial rate for 516 cases.

Last year, the two Minnesota judges rejected 74 percent of the 270 asylum request cases decided by the Bloomington-based immigration court. The court also handles cases from the Dakotas.

The group's researchers believe the report's findings underscore a fairness problem and a "long-standing, widespread and systematic weakness in both the operation and the management of this court.''

"It is clear that these findings directly challenge the (immigration review office's) commitment to providing a 'uniform application of the nation's immigration laws in all cases.' ''

The report follows criticism by prominent members of the federal appellate judiciary after sharply worded reversals of cases that they said underlined a pattern of unprofessionalism and bias.

Perhaps the biggest verbal blow came from Joseph Posner, a noted scholar and appeals judge in Chicago, who said the handling of these cases "at the administrative level has fallen below the minimum standards of legal justice. "

Gonzales publicly acknowledged a problem, chiding some judges' behavior as "intemperate and even abusive." He ordered a sweeping review of the immigration court system. A report may be released as early as this month.

Immigration attorneys and others who deal with the local court, however, described Dierkes and Olmanson as "above average'' and mostly professional, even in cases that went against their clients. They also stressed that a small fraction of asylum cases rise to the level of appellate review.

"Our judges are good people, and try to do their jobs well,'' said Michele Garnett McKenzie, director of Minnesota Advocates for Human Rights' refugee and immigration program.

McKenzie finds the disparity "not surprising but troubling.''

"I think that a first step is being taken by the court administration to look at these allegations of misconduct and unfairness, as well as better training and oversight of the courts,'' she said.

Ben Casper, an immigration lawyer, agrees with McKenzie that the selection of federal immigration judges in recent years has been top-heavy on former Immigration and Naturalization Service prosecutors.

"I believe a balance of people, from other fields … might be a healthier mix.'' Casper says a key factor in the disparity lies in the way judges assess credibility.

Unlike most cases, asylum seekers don't come to court with a note from their torturer or the government that may want to persecute them. Most cases, absent clear and convincing evidence, center on the truthfulness, or lack thereof, of the person's tale. "What may also help is finding a way for judges to better calibrate their credibility level,'' he said.

John Keller, executive director of the Immigration Law Center of Minnesota, said he has heard ''horror stories'' from immigration lawyers across the country about the way cases have been adjudicated.

But he also gives the local judges, particularly Dierkes, a general thumb's up.

"I have no complaints,'' Keller said. "He's (Dierkes) been fair on a number of occasions and he doesn't want to send people back to hell or to a dangerous situation.''

Ruben Rosario can be reached at [email protected] or 651-228-5454.

Click here to get the story from the St. Paul Pioneer Press.