In January 2022, an immigration lawyer named Chloe Dillon led a seminar titled “Defending Illegal Entry and Reentry Cases from A to NG.” Less than a year later, she was appointed a federal immigration judge in San Francisco. Since her appointment, she has denied just 1.2% of the asylum claims brought before her, while the average denial rate during that period was 60.6% nationwide.

Even in the San Francisco court, where denial rates were half the national average, Dillion’s 1.2% is still remarkable — unless you compare it to her San Francisco court colleague, Shira M. Levine, who denied only 2.2% of cases, according to data collected by Syracuse University’s TRAC Immigration Program, which tracked judge-level asylum decisions from fiscal years 2018-23.

The type of asylum cases a particular court might hear can partially account for the denial-rate disparity. In New York, for example, where the rate is around 35%, the top five countries of origin in the current immigration backlog are China, Ecuador, India, Russia, and Georgia, two of which are totalitarian enemies of the U.S. In Dallas, where the rate is over 70%, the top five countries of origin in the backlog are Venezuela, Honduras, El Salvador, Cuba, and Mexico, all of which are places from which many economic migrants come. A more cynical observer might also suspect that lawyers applying to be immigration judges in New York might be a tad more liberal than lawyers applying to be immigration judges in Dallas. (These judges are technically appointed by the U.S. attorney general, but this seems to be a legal formality, given that there is an application page.)

But even within jurisdictions, there are massive disparities on a judge-by-judge level. In New York, for example, Judge John Burns had the highest denial rate at 86.3% and Judge David Kim had the lowest at just 3.2%. Judge Kim had previously served as an immigration lawyer and once taught a course on defending asylum applications. Judge Burns had previously served as an Immigration and Customs Enforcement lawyer. Theoretically, these men interpret precisely the same laws, free of prejudice or ideology.

Yet asylum applicants who appeared before Judge Kim were 27 times more likely to have their cases approved than applicants who appeared before Judge Burns. If this extreme variance existed in criminal cases, people would take to the streets. Concerned citizens would certainly want to know why alleged criminals charged with the same crimes could find themselves more than two dozen times more likely to walk free if they appeared in front of one judge instead of another. It would be a massive scandal — one that would undermine basic confidence in the rule of law. Yet this is precisely the state of the asylum courts today.

The gulf between a 3% denial rate and a 86% denial rate is so vast that any claims about judicial impartiality are mere pretense. Without impartiality, “asylum” decisions aren’t guided by law. They are more of a convoluted lottery system, whereby the lucky get Judge Kim and the unlucky get Judge Burns. It’s a sham.

The law itself has been stretched to incredible ends, so it's not surprising that judges can get away with approving nearly all asylum applications if they are so inclined. To qualify for asylum, the applicant must meet the definition of a refugee under U.S. law. It boils down to this: to qualify as a refugee under asylum law, you must be unwilling or unable to return to your country due to a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The term “membership in a particular social group” is incredibly vague and has been used for all sorts of creative legal inventions. For example, former gang members and even bipolar Tanzanians can apparently constitute a “particular social group.” Department of Homeland Security statistics from 2022 (the most recent year available) show that asylum was granted in 27% of cases due to “membership in a particular social group” and in 51% for “political opinion.”

This evokes scenes of journalists and dissidents fleeing for their lives from authoritarian regimes, but, according to official guidance from United States Citizenship and Immigration Services, “political opinion” is also a broad term that includes former soldiers and police officers, people involved in labor disputes, and others, depending on case specifics. Essentially, if you can convince a judge that whatever problems you purportedly have constitute “membership in a particular social group” or “political persecution,” you get to stay. As the massive disparities between denial rates demonstrate, some judges are convinced more easily than others.

But that’s assuming the judge in question takes the letter of the law — or even generous interpretations of it — seriously. In June 2020, Boston University outlined the case of a Brazilian woman given the pseudonym Maria who claimed asylum in the U.S. after experiencing domestic violence. The judge ruled that her legal team hadn't met the burden of proof for demonstrating that the Brazilian government was unwilling to protect her and also rejected her claim to membership in a particular social group. Despite all this, he granted Maria asylum “based on past persecution.” The legal basis is unclear, and the ruling was a surprise — even to her lawyers.

The most likely explanation is simply that the judge felt sympathetic toward Maria and didn’t have the heart to reject her claim. The government had a month to appeal the case, but he probably figured that given the sheer number of cases, the feds wouldn’t bother — and they didn’t. Empathy on the bench is a virtue, but the subjective and fleeting emotions of judges are no replacement for law. The denial rate for the judge in this case, Todd Masters, is roughly on par with the national average and above average for his Boston court. You can imagine what the implication is for judges who approve asylum applications at double the rate he does.

Some asylum seekers aren’t even claiming to flee violence or discrimination of any kind — at least out of court. That includes many of Maria’s fellow Brazilians, who serve as an interesting case study because Brazil is a relatively stable, liberal, and democratic society— meaning that the vast majority of asylum applications fall far outside the scope of asylum’s intended recipients: genocide victims, political dissidents fleeing authoritarianism, persecuted religious minorities, etc.

A 2019 report from WNYC’s Paula Moura on the rise of Brazilian asylum applicants in Newark, N.J., profiled a woman given the pseudonym Adriana. She and her family had entered the U.S. illegally at the U.S.-Mexico border and claimed asylum. Why? She said that her family saw no future in Brazil, as food and utilities had become more expensive, so they sold their family pasture and used the money to pay smugglers to get them to the U.S.

Inspired by her success at being apprehended at the border and then being released to live and work in Newark, more family members followed. Moura didn’t specify the grounds on which Adriana and her family planned to claim asylum, but did note that Adriana is looking for an immigration lawyer. I assume a good one will tell she and her family, in so many words, to come up with a better explanation than economic pessimism.

Of course, actually getting asylum is hardly the point for many illegal immigrants. The wait alone will afford them several years in the U.S., and if they are from Afghanistan, Myanmar, Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Ukraine, Venezuela, or Yemen, and meet certain residency conditions, they can also apply for Temporary Protected Status, which allows them to stay in the U.S. and work even if they lose their case.

The result of all of this is that everyone in the third world is effectively incentivized to find their way to the U.S. and apply for asylum. After living and working here for an average of 4.3 years, a judge will finally decide whether or not they deserve to be here, depending on the personal ideology of the judge adjudicating their case. If they are denied it and come from one of the bad countries on a government list, they can apply for TPS and continue living here anyway.

The “asylum system” is a complete crock. Who can apply? Anyone. Whose claims are legitimate? Almost anyone who is lucky enough to get a liberal judge. The term “open borders” is not a right-wing scare word or conspiracy theory. It is a synonym for the asylum system, which is so incredibly fake at every step of the process it might as well not exist at all.

– River Page