How Luck Often Trumps Justice In US Immigration System

The US asylum process is meant to offer a fair shot at safe haven. But new reporting from Bloomberg uncovers how the difference between those who are granted asylum and those who are denied often boils down to chance.

On today's Big Take podcast, Bloomberg investigative reporter Monte Reel joins host David Gura to trace the arc of one man's journey and discuss new data analysis that reveals the flaws at the core of the US asylum system.

Here is a lightly edited transcript of the conversation:

David Gura: In 2018, 29-year-old Yerandy Valdes fled Cuba, where he was born and raised. He'd been targeted by the police, put in prison, and he feared for his life. Monte Reel, a senior investigative reporter at Bloomberg, says Valdes made it, months later, to the US-Mexico border:

Monte Reel: He crossed a bridge across the Rio Grande to McAllen, Texas. And there's a border patrol station on the US side of that bridge. And he turned himself in to Border Patrol officers, and announced that he wanted to apply for asylum.

Gura: Valdes was one of tens of thousands of people that year, who hoped the US government would agree with them, that life in their home countries had become too dangerous. Monte says that, as soon as Valdes told Border Patrol he wanted to apply for asylum, an agent peppered him with questions. He was given what's known as a "credible fear interview."

Reel: And so, they ask him the nature of his fears in Cuba, and so he really, you know, started to think about this, and he wasn't sure where to start.

Gura: Because there was so much to say. There was the story of what had happened to his dad. At the time, it had been illegal to operate a private business in Cuba - but Valdes' dad defied those rules. He ran an auto shop, and owned a food cart. He was arrested and found guilty of "enrichment at the expense of the state."

Reel: And so, when Valdes was a kid, his father was in jail for almost 15 years.

Gura: His dad escaped the country and was legally admitted to the US. But then, Monte says, Valdes became a target.

Reel: He himself had a churro cart, you know, selling snacks. Those carts were confiscated by the government. He was thrown in jail. He, in fact, became so disenchanted with the Cuban government that he actually got a tattoo on his forearm, and the tattoo said that Cuba is a prison of the living dead.

Gura: And that small act of protest made things worse. He believes someone saw that tattoo, and reported him.

Reel: The jail authorities threatened to burn it off. And in fact, they singed his arm by the tattoo with a hot spoon.

Gura: Valdes tried to leave Cuba over and over again, but he was caught and arrested. So, in 2018, he felt some relief. He'd made it to US soil, he had an opportunity to make his case, and that border patrol agent found Valdes' fear of persecution credible. But this was just the first step in what became a years-long process, and what happened next shows how capricious - and, Monte says, how broken - the US asylum process is. This is "The Big Take," from Bloomberg News. I'm David Gura, and today on the show, a story about one person who applied for asylum in the US in the last decade - one of hundreds of thousands, and what his experience tells us about how arbitrary and unjust that system is.

Gura: After Yerandy Valdes made it through that first interview at the border, the agent had to decide whether to let Valdes live with his dad, before a court hearing or if he should be detained. And Bloomberg's Monte Reels says he chose the latter.

Reel: If you talk to immigration lawyers, they will say that these decisions to detain or to parole often feel arbitrary. That there's no real reason behind them. Technically, the reason given for Valdes becoming a detainee was that he was a flight risk.

Gura: In the US, more than 80% of asylum seekers get parole. But Valdes was not one of them. And according to Monte, that denial made it less likely Valdes' application for asylum would be approved. The next question then, was where he would be detained? And Monte says the answer was, as it often is with asylum cases: "Wherever there's space."

Reel: So, he is transferred to a detention facility in rural Louisiana.

Gura: Back then, around 2018, ICE opened up several new detention centers in the American South. Valdes was sent to one of them. It's in the small town of Pine Prairie. And getting sent there Monte says made his odds of getting asylum even tougher:

Reel: It just so happens that, when you get assigned to a detention center, your case travels to that location. So, if he had been, for example, sent to New York City, about 29% of asylum cases in New York City are denied, and those people are ordered deported. In Louisiana, where he was sent, more than 80% are denied. So that was, you know, a pretty fateful circumstance.

Gura: Valdes, like many others, would learn that, in the asylum process, geography matters. And something else that can make a huge difference, Monte says, is which immigration judge gets your case. His was assigned to Agnelis Reese.

Reel: He got a judge who, in the past 11 years before his case, had heard hundreds of asylum cases and hadn't granted asylum to a single one of them.

Gura: About six months later, Valdes got his day in court.

Reel: He was there, his father was there as a supporting witness. And the proceeding is held essentially like a trial. There's a government attorney who's acting sort of as a prosecutor. And this is an attorney with the Department of Homeland Security who essentially is arguing for deportation. The judge is overseeing all of this and throwing in questions of her own, and so it becomes a hearing that will serve as sort of a one-day trial. This is his chance to present his case.

Gura: Now, one of the key differences between immigration courts and civil courts, or criminal courts, is that immigration courts fall under the executive branch, not the judicial branch.

Reel: So the person who's overseeing the immigration courts is actually the attorney general, which is a political appointee. So one of the reasons a lot of people want reform in this system is they say that these immigration courts are more susceptible to political meddling, political influence, because of that structure.

Gura: Four months before Valdes' hearing, Jeff Sessions, who was the US attorney general at the time, put in place a quota system that required every immigration court judge to make at least 700 rulings every year. All of a sudden, everyone had a busy docket, and Monte says that's reflected in the court records:

Reel: There was pressure on judges to move cases through their courtrooms quickly. And in the transcripts, you can definitely see that come through with the judge in Valdes' case. She's- the judge was definitely in a hurry. Valdes was presenting his evidence through a translator, and there were several times in the hearing where the translation was imprecise.

Gura: At one point, the immigration judge asked Valdes about what happened when Cuban police gave him trouble for having that snack cart:

Reel: He used the verb decomisar, which in Spanish means confiscated. They were confiscated. The translator, she said, "de-commiserated." And the judge had a problem understanding what she meant, and really kind of, took out that misunderstanding on Valdes. She ruled that he was being unresponsive.

Gura: But that wasn't the only thing that stood out to Monte, when he read the transcript of Valdes' court hearing. The judge believed there were inconsistencies in Valdes' story.

Reel: He had told her in the courtroom that, during one of the periods where he was jailed, that the officers had beaten him with a club, hit him in the head and had fractured his skull. And she went back and looked at the credible fear interview, and the credible fear interview, keep in mind, it's not a verbatim transcript. These are just notes that are taken- summary notes by the interviewing officer. And in that interview, he said that he had been hit in the head with a police stick, and that it had broken open his head and created a wound.

Gura: The judge seized on that difference - how Valdes described something as a "fracture" in her courtroom, and as a "wound" in that first conversation with border patrol. "In his interview with asylum officers," she wrote, "he did not mention his head being fractured." This was something at "the heart of the claim," she said, and rendered his testimony "non-credible." Judge Reese denied Valdes' request for asylum. She retired in 2022. And she did not respond to Bloomberg's requests for comment.

Gura: How common is it to have a proceeding go this way? As you just kind of look at, look at others, for there to be difficulties with translation or cultural misunderstanding?

Reel: Yeah, if you talk to immigration lawyers who've had a lot of experience in these courts, they are full of stories about mistranslations, about misinterpretations of testimony, of judges who are hurried and who, in some cases, display a sort of callousness towards the people who are testifying. And you know, in some cases, sure, there are people who are entering the asylum system with claims that are invalid - that just don't hold up. But there are people who have gone through trauma, and who enter these courtrooms, and who face judges that oftentimes are hurried and don't give their cases the hearing that they might deserve.

Gura: Under the current system, judges are routinely required to deliver an oral decision at the conclusion of a hearing immediately after the testimony is given without adjourning. One former immigration judge told Monte that means two similar cases can have very different outcomes, depending on the judge. In an Ohio case, for example, a 22-year old woman testified she had been raped by military officers. They were looking for her relatives, who were activists. That asylum applicant said they'd found her alone, at home, early one morning. The immigration judge in Ohio, overseeing that case, denied her request, saying the assault could not be considered "state-sanctioned violence," because, in Cameroon, quote, "police officers are not allowed to enter a private home at night in search of a criminal suspect" end quote. Valdes pressed on. He took the decision in his case to the Board of Immigration Appeals, which is the appellate body of US immigration courts. But Monte says Valdes recognized his odds were getting even worse.

Reel: That body sustains the vast majority of cases that they hear. So, whenever it came time for his appeal, it was a last-ditch effort, and one he knew he probably wasn't going to win.

Gura: Valdes was sent back to Pine Prairie, Louisiana, to that ICE detention center. Six months later after Valdes submitted his appeal, the board denied his request.

Reel: He was put on a deportation flight to Havana and the plane lands in Havana at the airport and even before he gets off the plane, the police are waiting for him.

Gura: After the break, another turn in the story of Yerandy Valdes, and what his story says about who is - and who isn't - being granted asylum in the US today.

Gura: Yerandy Valdes spent more than a year in an ICE detention facility in Pine Prairie, Louisiana, after an immigration judge rejected his application for asylum, and before a board denied his appeal. I asked Bloomberg's Monte Reel how the asylum system in the US is supposed to work - if it's supposed to take this long.

Reel: Someone who is being persecuted by their home government, they apply for asylum, and then their case goes before a judge and the person is supposed to present their case to the judge. The judge hears it and makes a ruling quickly and that person either then is on the path for citizenship in the United States or they're deported. And it's supposed to be a pretty quick process. But the reality is that these cases now drag on for years.

Gura: And that's partly because of how many cases there are - how many migrants are asking for asylum.

Reel: Well, the court system has just become increasingly overwhelmed with cases and a backlog of cases. So since 2016, that backlog of immigration court cases has grown from about 500,000 to about 3.7 million. And asylum cases alone, they're a part of that backlog. They account for about 1.3 million of those cases.

Gura: Monte says asylum seekers and lawyers alike - and even some immigration judges themselves - argue the system is in sore need of reform.

Reel: One of the things that the judges themselves say is that there's too much political influence in the system. There are also a lot of judges in especially rural immigration courts, places like rural Louisiana, where there, there's not a huge pool of people who qualify, who are living near those courtrooms. 62% of the people who end up being appointed judges there had previously served as staff attorneys for the Department of Homeland Security. In other words, they were prosecutors. And if you look at the judges overall, you know, there are those judges who deny almost all cases. You can find other judges in other jurisdictions, for example, in San Francisco, who deny only, say, 20% of the cases. Critics of the immigration court system say that the variances between judges are so extreme that that ends up becoming the most important part of a case. It's not the merits of the case. It's actually the luck of the draw.

Gura: And Yerandy Valdes? He got a series of bad draws - when he was detained, when he was sent to Louisiana to await trial and when he was sent back to Cuba, where he was put in prison.

Reel: When he was released in 2022, at this time, he began sort of documenting abuses that he would see by the Cuban government.

Gura: He made videos about his own experiences

Yerandy Valdes (in Spanish): Hello, my name is Yerandy Valdes Ruiz.

Gura: In one, he introduces himself as a human rights activist.

Valdes (in Spanish): I am an activist for human rights.

Gura: He also recorded protests and videos of what he saw as examples of government failures. Like this one, after Hurricane Ian decimated western Cuba in late September 2022. You see him walking through the wreckage, pointing out damage, and asking residents if they're getting the help they need.

Reel: And he sent those videos to video bloggers in the United States anti-Cuban bloggers who had programs on YouTube and that sort of thing out of Miami. And he became something of, like, a citizen journalist correspondent, trying to detail abuses in the Cuban regime.

Gura: And Valdes decided he would try again - to leave Cuba. In 2023, he boarded a raft made out of a car frame, and kept afloat by plastic containers, and floated for two days across the Caribbean, before he came ashore on Mexico's Yucatan Peninsula. He worked odd jobs there for eight months before he once again made his way through Mexico, to its border with the US.

Reel: And, you know, the way it works is you generally pay coyotes to help you across the border. He did that, and this time, they didn't cross at a bridge like he did the last time. This time they crossed in ranchland in Arizona. He was picked up by the border patrol, and now for a second time, he entered the asylum system.

Gura: Valdes was in a different state. The US had a different president. And the process had changed. Border Patrol gave him a new form to fill out, one called an I-220A.

Reel: What it meant for Valdes at the time was that he was allowed to go and live with his father. So he joined his father in Missouri. In 2023, and he's there now, and he's awaiting his first court hearing in the immigration courts, which will happen in Missouri, not in Louisiana this time

Gura: That hearing is scheduled for January 2026. And Monte says Valdes is more optimistic. This time, he's going to go before another judge, and he has a cell phone full of videos to support his case. But the odds are not in his favor. In the Missouri court where his hearing will take place the denial rate for asylum seekers is 76%

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)