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All Things Considered
Emily Bright, Ngoc Bui and Matthew Alvarez

Report: Asylum seekers face ‘refugee roulette’ in Minnesota court

A sign reads Bishop Henry Whipple Federal Building in front of a building
The Bishop Henry Whipple Federal Building is where immigration court takes place.
Jim Mone | AP

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Every year, tens of thousands of people come to the U.S. in hopes of finding safety and protection. But for those who do not arrive through special refugee resettlement programs, they have to make their asylum case before a judge.

And as Star Tribune reporter Maya Rao found: the odds aren’t always in their favor. That’s because the fate of someone winning asylum and being granted permission to stay in this country depends on the judge they’re assigned in court.

Rao discussed her reporting with All Things Considered host Tom Crann.

The following transcript has been lightly edited for clarity. Click on the audio player above to hear the interview.

Can you explain the situation unfolding in Minnesota’s immigration court system?

Yes, basically, this is happening in Minnesota, but also nationwide. If you go to Fort Snelling, you could get immigration judge Katherine Hansen who approves 60 percent of asylum cases. … [or] you could go in front of immigration judge Monte Miller and his approval rate is 11 percent.

Of course, this doesn’t necessarily hold true for everyone. Just because Judge Hansen has approved 60 percent of cases in the last five years doesn’t mean that anybody coming before her would have that same chance. Some people have a better case than others. There’s other factors, like the country you come from.

How do the approval rates in Minnesota compare with the rest of the country?

On average, just looking at the latest five-year period, 30 percent of asylum cases are approved in Minnesota. Nationwide, it’s about 35 percent. So, we’re a little less than average.

In the course of your reporting, did you see any relationship between the judges’ backgrounds and their approval rating?

It’s hard to say exactly how they might be connected. But one thing that’s interesting to note is that half of the eight immigration judges in Fort Snelling came from a background where they were representing the U.S. Immigration, Customs and Enforcement, or ICE, and deportation proceedings. But only one of the judges, Audrey Carr, spent her career in immigration, legal advocacy.

How are people seeking asylum navigating this process? Do they press their luck with a judge they’re assigned? Do they seek a court where they could win their case?

The cases are randomly assigned, and they can even change throughout the process. If their cases aren’t necessarily clearly and easily winnable, lawyers have told me they’ve had clients who will move to certain places, especially if they have a relative there or some kind of connection. They are aware of these statistics and check them and try their luck in different places.

Increasingly, the federal government has been encouraging prosecutors to use something called prosecutorial discretion. If they get a judge like Judge Miller or Judge Sardelli, both who have the two lowest approval ratings in the court, they might encourage their clients to seek prosecutorial discretion to have the case dismissed.

They can then file an asylum case administratively with U.S. Citizenship and Immigration Services (USCIS), and that will not go before a judge. Sometimes that can be a little bit more favorable.

I imagine it must be hard to prove what you’ve been through.

Exactly. That’s another issue. A lot of people may not have documentation; they may not have proof. So a lot of it will turn on the witness’ credibility. And that could be subjective.

The argument can be made that in any court, there will be variability. What do you want to illustrate with this story in particular?

Well, I have been following how the immigration court in Fort Snelling is basically at a record number of immigration cases pending right now. It’s 41,000 today and that’s doubled in the last couple of years. It’s just exploded.

They’ve had to hire more judges and respondents, or the immigrants who are put in deportation proceedings, they’re having to wait years for their cases. Attorneys don’t have enough bandwidth to take on all these people.

This is an issue that’s been going on for a long time, but we now have record numbers of people seeking asylum, so it’s affecting more people than ever.