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Immigration Guidelines?

This morning's New York Times reports disparities in the rate at which immigration judges grant asylum to immigrants seeking to remain in the United States. The report reminds me of complaints about disparities in federal criminal sentencing years ago.

One Miami judge denied asylum in almost 97 percent of cases in which applicants were represented by counsel. By contrast, one New York jurist granted asylum in almost 91 percent of cases. An applicant from Afghanistan or Myanmar has a far greater chance of being granted asylum than does an applicant from El Salvador.

The results are disturbing. Just last November, Seventh Circuit Judge Richard Posner opined that the handling of asylum cases has "fallen below the minimum standards of legal justice." In January, Attorney General Alberto Gonzalez called for a comprehensive review of the immigration court system.

Whatever the outcome of this review, let's hope the result is not another set of guidelines. The federal sentencing guidelines have transformed federal criminal work into a bizarre calculus worthy of Jeremy Bentham, where something like utility is human affairs is calculated with pen and paper. The result has been a boon to appellate lawyers, and a nightmare for clients, many of whom are now whisked off to prison because Congress insists.

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