Law and Musalo Awarded NSF for Collaborative Research: "How do immigration courts decide gender-based asylum claims?"

National Science Foundation- Law and Social Sciences Division

Grant #1556551 to CUNY Brooklyn College/$79,497

Grant #1556131 to UC Hastings College of Law/$185,998

Last Fall, I spoke to Karen Musalo at UC Hastings Law by phone, whom I had never met, but knew by reputation well.  She is the leading expert in the country on gender and asylum.  She wanted to apply for an NSF to study immigration judge decisions using the methodology I used in my first book.  I am in the middle of writing a second book on immigration federalism before the Civil War.  Had anyone else called, I probably would have said no.  I told Karen the NSF is a high mountain to climb--the acceptance rate is low, it would take us 3 months to come up with a credible proposal, and no one lands it on the first try.  She was game, so we put together a proposal and vetted it with many friends in both law and political science.  We are pleased to report it only took us one and a half tries and this collaborative grant is the result.  After working on the grant proposal for a year with Karen and her staff by conference calls and emails, I still have not met them, but will soon and look forward to working on this project with them!

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To quality for asylum or refugee protection in the United States, one must demonstrate a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion."  That definition is derived from the United Nations 1951 Convention and 1967 Protocols Regarding the Status of Refugees.  Noticeably absent from that definition are sex and gender.  Yet many women and children are the face of the continuing humanitarian crisis along the U.S.'s southwestern border surge as they flee sexual and domestic violence in their home countries.  These women and children do not fit the profile of the Soviet dissident or political prisoner of the Cold War era. How are gender-based claims adjudicated in the U.S. asylum system by administrative agency judges?

Non-Jargon Abstract

How do immigration judges decide when to grant someone asylum when they claim protection on the basis of gender? Headed by Co-PIs Karen Musalo, a law professor, and Anna O. Law, a political scientist; two leading authorities in their respective fields of refugee law and public law, this collaborative study between UC Hastings College of Law and CUNY Brooklyn College will illuminate the decision making processes in the evolving field of gender-based asylum law.

An ongoing humanitarian tragedy continues along our own border with Mexico with the “surge” of migrants. Much controversy over U.S. border practices, such as detention of asylum-seeker families, reflects conflicting understandings over whether refugee protection properly extends to Central American women and children—many of whom are fleeing gender-based violence. Because the legal refugee definition does not explicitly designate gender as a ground for protection, gender-based claims are fraught.

When the Department of Homeland Security charges an immigrant with violating laws, or when one claims asylum, immigration judges, part of the Executive Office for Immigration Review (an agency within the Department of Justice), hold administrative hearings to interpret and adjudicate these laws. At hearings, these judges decide whether immigrants can remain in the U.S. or be removed to their home country, and federal court review is sought in only a minority of cases. Yet, existing scholarship on decision-making processes have focused almost solely on federal courts, primarily because access to immigration judge decisions are difficult to obtain.

The Co-PIs will undertake a study of the largest known repository of immigration court asylum decisions from around the country (more than 760 decisions) housed at the Center for Gender & Refugee Studies of UC Hastings and supplement those with decisions obtained through FOIA requests. They will create an original data set to systematically examine how factors such as case facts patterns and legal precedent affect legal outcomes. This unique study will examine a level of immigration bureaucracy never before studied in this regard.

See CGRS's announcement here.

Further Elaboration of Study

Overview:  The objective of this collaborative research project is to better understand decision-making processes in the U.S. immigration courts, which decide the vast majority of immigration cases, in contrast to the federal judiciary that decides far fewer cases. The project therefore studies the “base” of the immigration decision making pyramid, the decision making point that renders the most decisions affecting the largest number of asylum claimants.

This project proposes a multi-methodological analysis of gender-based asylum adjudication at the immigration judge (IJ) and administrative appeals levels. We will undertake an interpretive content analysis of the largest known repository of immigration court asylum decisions from around the country—containing nearly 700 decisions of immigration judges and the agency appellate body—housed at the Center for Gender & Refugee Studies of UC Hastings (CGRS). CGRS, headed by Co-PI and Professor of Law Karen Musalo, has amassed these decisions over the course of two decades. The CGRS sample will be supplemented by cases obtained by FOIA requests from ICE’s detention centers.

Building upon the work of Co-PI and Associate Professor of Political Science Anna Law of Brooklyn College, our study will use grounded theory to identify and analyze modes of legal reasoningto assess the influence of case facts in immigration decisions. We will supplement and cross check our findings with quantitative analysis of the aggregate data obtained from the Executive Office for Immigration Review (EOIR) to assess how representative the CGRS sample is.

Intellectual Merit: This project will re-evaluate and extend theories of decision-making in asylum adjudication. Existing scholarship on immigration courts examines either how asylum decisions map onto national foreign policy and economic interests, or how individual characteristics of judges or circuits produce variability in asylum success. With respect to the latter, studies have shown that asylum grant rates diverge enormously based on the identity of the adjudicator, even when controlled for factors such as the applicant’s country of origin or jurisdiction of filing. These existing studies are constrained, however, by the quantitative data they use—as scholars have relied on the immigration courts’ own database, which does not track legal reasoning or case facts in decisions. Public access to the decisions themselves, moreover, is limited.

Because of the unique nature of CGRS’s data set, containing several hundred of these decisions, this project will be able to identify and code for legal reasoning and case fact patterns in the decisions of immigration courts nationwide: a level of immigration bureaucracy never before studied in this regard. In so doing, this study will respond to and avoid some of the key criticisms of extant decision-making research: that quantitative analyses of decision-making fail to account for the specificities of cases or to adequately consider the constraining effects of legal doctrine.

Via an innovative grounded theory approach, supplemented by quantitative data analysis, this study will answer the critical questions of why and how decision-makers differ in adjudication approaches and outcomes. It will make key scholarly contributions by examining the interplay of legal and extralegal factors, e.g., how gender influences agency decision-making; and assessing the impact of discrete institutional components of the administrative system, e.g., the influence of structural changes and changes in doctrine on case outcomes.