For immigrants seeking asylum in Minnesota, success depends partly on which judge they get

An Ecuadorian woman named Fernanda came before Minnesota Immigration Judge Katherine L. Hansen, carrying her American-born baby in a blanket.

“I don’t know if you can grant me asylum,” Fernanda said.

Hansen directed her to fill out an asylum application by the next court date in 3½ months “so we can talk about it.”

Down the hall from Hansen’s courtroom, a Mexican immigrant sat before Immigration Judge Monte G. Miller.

“I would like to apologize for entering your country illegally,” the Mexican national said. “We don’t feel safe in our country.”

“Sir, I don’t judge anybody who comes in,” the judge replied. “I don’t think you’re a bad person at all.”

But the two migrants facing deportation had very different odds of winning asylum based on the judge alone. Hansen, a former district judge in Detroit, approved 60% of asylum cases in a five-year span — the highest rate by far among the six immigration judges at Fort Snelling for whom statistics are available. Miller, a former Hennepin County prosecutor, approved 11%, the lowest in Minnesota.

Such disparities nationwide have created a system that some legal scholars have dubbed “refugee roulette,” in which a randomly assigned judge plays a large role in whether an asylum seeker wins their case.

Unlike the judiciary that most people are familiar with, most immigration court asylum proceedings and documents are not public, juries are not called and immigrants are not provided an attorney if they cannot afford one.

Immigration judges across the country approved 35% of asylum applications between 2018 and 2023, according to summary data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, while judges in Minnesota on average granted 30% during that period.

The varying asylum approval rates are “outrageous … it’s a decades-long problem and nobody cares to solve it,” St. Paul immigration attorney Kim Hunter said.

Judges at the Fort Snelling court could not be reached for comment, but National Association of Immigration Judges President Mimi Tsankov noted that no two cases are alike and each judge must weigh the nuances of immigration law. Divergent outcomes can reflect differences in circuit law and the facts in the case. Judges may preside over different types of dockets from their colleagues. The quality and quantity of evidence can vary dramatically. “And, of course, each judge brings to the role different experiences and perspectives,” Tsankov said.

Attorneys told the Star Tribune that if their asylum-seeking clients are assigned a judge such as Miller or Brian Sardelli, who has the second-lowest asylum grant rate, at 18%, they may advise them to try to get the deportation case against them dismissed. That alternative — granted to immigrants whom the government deems a low priority to deport — doesn’t give them a path to citizenship the way winning asylum would, but it allows them to stay in the country and submit a new asylum application to U.S. Citizenship and Immigration Services to be considered administratively.

The variance in approval rates “affects my job strategically … any attorney doing a service to their client is going to have to look at the numbers and say, ‘If I think I have a good case and it’s in front of Judge Hansen, maybe I should oppose dismissal,” said St. Paul attorney Evan Brown. “But maybe I should try to get the client’s case dismissed if it’s in front of Miller or Sardelli … even if it’s a very good case.”

He explains to his clients that a big part of whether their case will be approved depends on which judge they have.

Brown said that when he represented two relatives from Latin America before two different judges, the client who went before Miller lost his asylum case and the one who went before Judge Joseph Dierkes won — even though the cases had very similar facts. Dierkes, who recently retired, had a 30% approval rate compared to Miller’s 11%.

“The 19-point difference between those judges and the results of those two cases shows how important judicial assignments are,” Brown said.

People are eligible for asylum if they prove they have suffered or fear persecution based on race, religion, political opinion, nationality or membership of a social group. The success of a case can vary widely depending on an immigrant’s nationality — Salvadorans fleeing gang violence are usually denied, for instance. Immigrants not represented by attorneys also face high denial rates.

Why the drastic variation between judges? “That’s a really great question and sometimes I wish I knew more about the backgrounds of the particular judge that would help explain why they take the views that they do,” Minnetonka immigration attorney Steven Thal said. He noted that sometimes they hear it’s the type of cases or nationalities, “but when you’re at a quarter of the approval rate of most other judges nationwide, there’s got to be something that explains that.”

He said Sardelli had denied asylum to a client who was a Mexican woman claiming that her husband had abused her and she could not get protection because he was a police officer. Domestic violence falls under gender-based violence, which the asylum law covers, according to Thal, “so we certainly felt we had valid, strong ground to obtain that relief. I think either Judge [Audrey] Carr or Judge Hansen would have granted that case.” Carr’s asylum approval rate is 43%.

But Thal said that Sardelli also granted asylum and two other types of humanitarian relief to a different client who suffered forced abortions under China’s one-child policy — the only case he could recall of any judge granting all three types of relief. Judge Sarah Mazzie, who grants asylum in 21% of cases, also recently approved asylum for a family Thal represents that fled Ghana because the wife was bisexual, the husband was an LGBT rights activist and their son was killed over a presumption that he was gay.

Half of Fort Snelling’s eight immigration judges formerly represented U.S. Immigration Customs and Enforcement (ICE) in deportation proceedings, though one of them, Mazzie, is also a former immigration attorney. Two mainly worked as state or federal prosecutors and another spent most of her career as a district court judge Just one, Carr, spent her career in immigration legal advocacy.

Approval rates also vary widely between jurisdictions — a series of judges in Atlanta approves less than 5% of asylum cases, and most judges in Houston approve less than 10%. Meanwhile, Immigration Judge Gina Reynolds in Chicago approves 90%, and most judges in that district grant the majority of claims.

Some immigrants move to improve their odds.

Hunter said she’s seen clients who are increasingly savvy about judges’ varying approval rates. People from a particular country learn that approval rates are better in a different jurisdiction, and they start investigating whether they might fare better in a different court. Particularly when clients have family members living in those locations, “it’s not my place to discourage them from moving.”

“When I first started and grant rates were more uniform, who we got as a judge was less of a consideration, but now having that data and often having clients come in knowing that data, I think you would be doing your client a disservice if you didn’t acknowledge it,” said Hunter, an immigration attorney for 23 years.

This month, Hunter was scheduled to appear in front of Hansen on behalf of a Somali woman claiming persecution as a victim of genital mutilation and forced marriage. Hunter advised the client that Hansen had a high approval rate and tends to be patient and welcoming. Hunter believed they had a strong argument: case law is well-established that female genital mutilation qualifies for asylum.

But the day before their hearing, Hunter learned they would be reassigned to a different judge: Kalin Ivany, formerly a longtime attorney representing the Department of Homeland Security in immigrant removal proceedings. She was appointed to the bench in November. As they waited outside the immigration court, Hunter told the client that the judge was new and there wasn’t much information on her.

During the hearing, the opposing government attorney asked the Somali woman detailed questions about her claims: that she was forced to marry a senior citizen at age 17, and when her husband died a few years later, his family began pressuring her to marry his brother. When she refused and her own brother tried to intervene, the family killed him and kidnapped her sister. The Somali woman left her baby with family and fled, crossing the Mexican border into the U.S. The woman later said she had been nervous, but in court she steadily answered each inquiry.

After an hour, Ivany granted her asylum. The judge said evidence is clear that the Somali government is not taking meaningful steps to stop female genital mutilation; it is reluctant to investigate forced marriage, and reporting gender-based violence often results in harm to women who complain.

Afterward, the woman who won her case told the Star Tribune that she knew about the judges’ varying approval rates but “I just wanted to tell my story and was hoping that would be enough.”