A recent study of parole judges in Israel demonstrates that the judges tend to issue more favorable decisions on a full stomach. The study, by Shai Danzuger of Ben Gurion University, examines 1,112 parole board hearings in Israeli prisons. In the chart below, the vertical axis represents the proportion of cases where the judges granted parole. The horizontal axis shows the order that cases were heard throughout the day. The dotted lines represent the points where the judges went away for a morning snack and a lunch break.
The study controls for various factors, such as gender, ethnicity, and type of crime, and its conclusion–that the judges’ decisions are strongly influenced by whether they’ve eaten–seems pretty convincing. My question is: Does this study have any applicability to Immigration Judges or Asylum Officers?
One reason to think that the study is not applicable to IJ’s and Asylum Officers is that the Israeli judges ruled on 14 to 35 parole cases per day. While IJs in Master Calendar Hearings often rule on more than 35 cases per day, such cases are rarely final decision where the alien is contesting removal. Most final decisions occur during Individual Hearings, and IJs generally do not adjudicate more than four or five individual hearings per day (especially when those hearings involve asylum applications, which tend to take more time than other types of immigration cases). Asylum Officers also have a much lower daily caseload than the Israeli judges. Thus, the challenges faced by the Israeli parole judges are quite different from those faced by Asylum Officers and IJs in the United States.
On the other hand, the study does point to the problem of fatigue as a factor in decision-making, and it makes sense that fatigue would affect IJs and Asylum Officers, all of whom are overworked and under pressure. How–or whether–that fatigue affects asylum cases is not known.
Studies of asylum cases have shown that the results can be arbitrary (see, for example, this posting about the article Refugee Roulette) and that “unobservable factors,” such as gender and education, may affect asylum decisions. However, as far as I know, there has not been a study of how fatigue affects decision-making. There is, however, significant evidence that IJs (and presumably Asylum Officers) are stressed out by the heavy case load and the difficult types of cases.
What, then, is the solution? I suppose the easy answer is to hire more IJs and more Asylum Officers. EOIR has been expanding the number of judges, but given our current budgetary woes and the vast number of cases, it is doubtful that a handful of new IJs will make a great difference in the overall stress level. Another solution (which I don’t love) is to simplify the system and eliminate some layers of review (for example, combine the Immigration Courts and the Asylum Offices into one body, which would handle all cases at the trial level). A final thought is to encourage the BIA to issue more decisions (I have written about this before in the cleverly titled (if I do say so myself) blog post–The Unbearable Lightness of BIA-ing). This would create more certainty and regularity in the system. It certainly won’t solve the problem, but it does seem like a reasonably easy way to improve efficiency.
Fatigue, stress, and overwork are all factors that negatively affect decion-makers in the asylum system. The more we can do to alleviate those problems, the better decisions we can expect. In the mean time, I recommend that you bring the IJ a nice sandwich before your trial. It couldn’t hurt.
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.