As Canada implements changes to its asylum program under the Balanced Refugee Reform Act, its refugee judges are required to apply for new positions that will commence in June 2012.  The refugee judges are currently political appointees.  To qualify for the new positions, applicants must take a multiple choice and written exam, and pass an interview.

According to the Canadian Star, out of 63 refugee judges, “only 10 have passed the exams and screening process, while nine are awaiting final interviews.”  Of the remaining 44 judges, “[o]ne was screened out immediately, 24 failed the multiple-choice and written exams, six did not show for the exams, seven were eliminated at interviews, and six withdrew from the process.”  Forgetting judges that decided not to re-apply, this means that over 50% of politically appointed refugee judges in Canada failed the exams or the interview. 

The Star notes that the “refugee judges’ poor performance has raised concerns about the quality of decisions they have made.”  No kidding.

So what are the implications for us, down here on the civilized side of the border?

First, it is pretty clear that we have problems of our own.  The important article Refugee Roulette: Disparities in Asylum Adjudication makes clear that decisions by Immigration Judges (and other adjudicators) often depend on who is making the decision rather than the facts of the case.  The authors found statistically significant evidence that an IJ’s work experience prior to appointment affects his or her decision-making in a particular case.  The obvious implication is that the system can easily–and subtle–be manipulated through political appointments.

This is not merely an academic point.  Just last week EOIR swore in three new judges.  Two of the three have experience with DHS or INS and all three have experience as administrative adjudicators.  From their bios, it appears that only one of the three has ever had any experience representing immigrants, and that was almost 20 years ago.  While these new IJs all seem like well-qualified individuals, their selection from within the government raises concerns, particularly in light of the biases revealed in the Refugee Roulette article.

So what is to be done? 

The authors of Refugee Roulette basically recommend more and better training.  That certainly makes sense.  Here are a few other ideas:

– The BIA should publish more decisions, to provide more guidance to Immigration Judges.

– The selection process should be broadened and more effort should be made to hire judges from the private and non-profit sectors.

– IJs whose grant or denial rate is out of whack with the mainstream should receive additional training and additional scrutiny to ensure that their decisions are complying with the law.

Maybe the lesson from Canada is that, with judges who are essentially political appointees, we need to be extra careful–and take the necessary extra steps–to ensure that they are qualified and able to properly adjudicate immigration cases and interpret the immigration law.