By Lex Talamo / Yakima Herald-Republic
Asylum-seekers who arrive by plane at Yakima’s airport and are bused to the Northwest Detention Center face higher bonds and are more likely to be deported once they end up in federal immigration court in Tacoma, based on immigration data maintained by Syracuse University.
In May, when U.S. Immigration and Customs Enforcement started using the Yakima Air Terminal at McAllister Field, an ICE acting field director said many of the transports were asylum-seekers from the southern border.
Bryan Wilcox, the acting field director of enforcement and removal efforts for ICE Seattle, said he had no numbers on how many of the people leaving from the airport were asylum-seekers, but estimated that 54 percent bused from the airport to Tacoma were asylum-seekers without criminal records. But data does exist for what happens to asylum-seekers who end up at Tacoma’s Northwest Detention Center.
Data from Syracuse University shows that Tacoma’s immigration judges require higher bonds and deny asylum claims at higher percentages than the national average. The data also show higher percentages of asylum-seekers show up for their hearings without an attorney.
Those factors are related, said Tim Warden-Hertz, the directing attorney for the Northwest Immigrant Rights Project.
Asylum-seekers who can’t pay a bond remain in detention, where it is harder and more expensive to obtain an attorney. And without an attorney, asylum-seekers can face insurmountable barriers in presenting their cases in a competent way to an immigration judge, Warden-Hertz said.
“For people who are going to be killed on their return, they’re not likely going to know how to fit their case into asylum law,” he said. “The data goes back to lower representation in detention and the ability of a person to make a case. And that is fairly damning, the impact that detention has on a case.”
Ashley Tabaddor, speaking as president of the National Association of Immigration Judges, warned that drawing accurate conclusions based on asylum grant and denial rates often can be problematic.
“It’s difficult to take those numbers and draw conclusions,” she said. “The judge has to make a decision based on the evidence presented and how it fits into the asylum law. It’s not based on generic biographical information.”
Immigration judges
Kathryn Mattingly, spokeswoman for the Executive Office for Immigration Review, an office under the U.S. Department of Justice, noted that the Tacoma Immigration Court has three immigration judges hearing asylum cases.
The office did not release the names of the judges, and Mattingly said that its judges do not grant interviews.
The Transitional Records Access Clearinghouse, or TRAC, hosted by Syracuse University, identifies four immigration judges who heard cases at Tacoma from 2013-18. Those judges were Tammy Fitting, John Odell, Theresa Scala and Richard Zanfardino.
The judges predominantly heard cases from asylum-seekers whose country of origin was Mexico, but they also heard cases from people whose home countries included El Salvador, Somalia, Honduras, Guatemala and Haiti.
The judges’ asylum claim denial rates — ranging from 66 percent to 84 percent — were higher than the national average of about 58 percent for the same period. Specifically:
• Fitting decided 517 cases, granted 178 (34 percent) and denied 339 (66 percent).
• Odell decided 534 cases, granted 128 (24 percent) and denied 406 (76 percent).
• Scala decided 516 cases, granted 133 (26 percent) and denied 383 (74 percent).
* Zanfardino decided 215 cases, granted 35 (16 percent) and denied 180 (84 percent).
The detainment factor
Immigrants detained in facilities can be released from ICE custody while waiting for their court proceedings by paying an immigration bond set by an immigration judge at the custody hearing.
For the first eight months of 2018 (the TRAC data most recently available), the median bond amount set by Tacoma judges was $15,000. That bond amount is twice the national average and among the highest in the country, along with the Hartford, Conn., Immigration Court.
TRAC notes there were sharp differences by location, regardless of the nationality of the immigrant seeking release. More information is needed about why the bond amounts vary so widely, though representation likely plays a role, the researchers note.
“The composition of detainees as well as the relative availability of representation at some detention locations, among other factors, may also make it more or less challenging for immigrants to prepare and file successful bond motions,” the TRAC report notes.
Warden-Hertz said that asylum-seekers who remain detained face a number of additional challenges, including less likelihood of obtaining an attorney and higher attorney costs.
“Whenever there’s a case where someone is in detention, it’s more expensive to have representation because the lawyer has to travel more and has less access to documents,” he said.
For example, asylum-seekers who have been released on their own recognizance or who paid bond can help an attorney obtain relevant documents, such as birth certificates or hospital records, which becomes impossible if the person is detained. Asylum-seekers who remain detained also cannot work, and the possible loss of income can have crushing repercussions for the individual and the family, Warden-Hertz added.
The Northwest Immigrant Rights Project, based in Tacoma, offers group legal orientation presentations at the detention center and meets with detainees individually before court proceedings. But lack of resources means few detainees get attorneys. Warden-Hertz said his organization meets with up to 4,000 detainees a year but is only able to represent between 150 and 300.
“There are still a lot of people who don’t have representation,” he said. “And for someone who doesn’t have a lawyer, the barriers can be insurmountable.”
Asylum denials
Tabaddor said that successful claims have to prove the asylum-seekers are in danger of being “persecuted” — a legal definition requiring a high level of harm. “Harm” is a term which specifically references persecution based on their political opinions, race, nationality, or targeting by a particular social group. Asylum-seekers have to prove that the government in their home country would be unable or unwilling to provide protection from that harm, she added.
Warden-Hertz noted that language barriers can pose a significant challenge to asylum-seekers trying to build their own asylum cases for the courts. So can cultural differences. Asylum-seekers, for instance, may tell the judges that they never filed police reports about incidents in their home countries because doing so would only make their situations worse.
“Knowledge of ‘information I may have about my country’ doesn’t get a lot of credence in court because they can’t prove it,” he said. “It takes a legal representative finding an expert or researcher from the home country who can testify to the conditions there.”
Mattingly noted that asylum-seekers are not guaranteed representation in immigration court proceedings by statute. But she added that all immigration judges provide a list of pro bono legal service providers to asylum-seekers during their initial hearings.
“Many of the respondents who are initially unrepresented obtain representation as removal proceedings progress,” she said.
According to TRAC data, the national average of asylum-seekers who appear before immigration court judges without legal representation is 20 percent. For the four Tacoma judges listed in the TRAC report, that percentage jumped to between 49 percent and 60 percent.
Just because an asylum claim is denied does not mean that the danger for the asylum-seekers is not real, Warden-Hertz said. He added that immigration judges will sometimes consider how large a country is and whether an asylum seeker could relocate in his or her home country, which can bring its own problems.
“There are often real dangers, and showing up in a new place, not knowing anyone, is not as easy as it sounds,” he said. “It’s an American narrative to pick up and move to a new town and give it a go.”
Other considerations
Tabaddor, in a statement made before the Senate Judiciary Committee in April 2018, said immigration courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for years.
Immigration courts are not independent, as are other courts, but rather are part of the Department of Justice and run by the State Attorney General, who hires and fires judges. The Executive Office for Immigration Review also has a traditional federal employee review system, in which evaluations are conducted by a management official and so “can result in career-ending discipline to a judge who makes a good faith legal decision that his or her supervisor considers to be insubordinate,” she said.
“At first glance, this may not seem too damaging,” she said. “However, this organizational structure is the fundamental root cause of the conflicts and challenges that have plagued the Immigration Court system since its inception and now threatens to cripple it entirely.”
Tabaddor, in a phone interview, and Warden-Hertz noted that immigration judges face pressure to move quickly through cases, particularly with detainees.
“Judges have these enormous caseloads and that can make their jobs incredibly difficult to do,” Warden-Hertz said. “There’s pressure on the judges to keep moving faster.”
Judges may only have one hearing with an asylum seeker if an attorney isn’t involved, Tabaddor said, and if the case is not presented comprehensively or coherently, there is only so much an immigration judge can do.
“Attorneys have told me that successful claims require multiple meetings with their clients and hours of putting together a competent case, but the judge is not someone’s attorney,” she said. “They are limited to, ‘Tell me your story, and I have a couple questions.’ There are logistical and real challenges.”
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