Repairing the U.S. asylum system

Leading immigration law expert examines dramatic inconsistencies; cautions against drastic responses

A recent academic study confirmed empirically what many immigration experts had already suspected: The chance of winning an asylum case often hinges as much on the luck of the draw as on the merits of the case. Some adjudicators grant asylum liberally while others grant it only rarely, and the disparities are dramatic.

The Stanford Law Review asked Stephen Legomsky, J.D., D.Phil., leading immigration and asylum law expert and John S. Lehmann University Professor at Washington University in St. Louis, to write an article analyzing the policy implications of this study. Legomsky offers a controversial conclusion: “There are times when we simply have to learn to live with unequal justice because the alternatives are worse.”

Stephen Legomsky
Stephen Legomsky

In his article, “Learning to Live with Unequal Justice: Asylum and the Limits to Consistency,” Legomsky examined why consistency matters in a justice system, identified the forces that contribute to consistency, and considered a wide range of possible “fixes” for the asylum system.

He expressed fear that politicians will respond to the inconsistencies by trying to “rein in” the adjudicators, possibly by firing those whom the agency officials consider outliers. To take that course, he argued, would severely compromise the independence of an adjudicative corps whose independence has already been sadly depleted.

Legomsky is the author of “Immigration and Refugee Law and Policy,” now in its fourth edition and adopted as the required text in l64 U.S. law schools since its inception. He has been a consultant on immigration matters to both President Clinton’s transition team and President George H.W. Bush’s Commissioner of Immigration, to the UN High Commissioner for Refugees, and to several foreign governments. He has also chaired several national committees on immigration and has testified before Congress.