Administrative Law and the Lottery

Steven Rosales is an attorney in the office and teaches administrative law at California State University Fullerton.  Steve had his class watch "Well-Founded Fear."  I pass the recommendation on to you.

The synopsis of the movie on the PBS website sets out the foundation of the movie.  People that that have left their homes in China, Russia, Rumania, Nigeria, and other places in the world end up in the United States seeking asylum for politics, religion, procreative rights, and others.  The lottery that is the administration of the asylum process is simply appalling and a reflection of what happens every day in the practice of Social Security disability. 

First, it is a lottery.  The luck of the draw determines the outcome of who will get asylum and who will not.  An asylum officer tells how his experience changed his apprhear theoach and made him more stingy in terms of granting asylum.  The luck of  the draw animates many administrative proceedings because the legal construct gives those officers and Administrative Law Judges tremendous discretion to make whatever credibility determination they wish to make.  If a claimant or applicant gets the officer or ALJ on a bad day or simply gets a bad officer or ALJ, that person is unlikely to get the relief that the statute promises.  One of the truly shocking recurrent themes is the stated bias of the officers depicted that rely on their own fund of knowledge, only to be grossly wrong. 

Second, the system is filled with incompetence.  The movie subtitles the non-English speaker.  We get to hear the professional interpreters butcher, edit, and change the words that were spoken by the applicant for asylum.  That is truly disturbing because neither the officer nor the applicant has the facility to know that the interpreter is making grave errors.  So much rides on the competence and accuracy of the interpretation.  I know from my own practice that interpreters do make mistakes.  My limited Spanish language facility permits me to catch truly egregious errors in translation.  Long-winded answers in a foreign tongue translated to a short sentence in English is a big clue that the interpreter has fouled the exchange.  Of course there are professionals that are bilingual and they then enjoy the biggest advantage to protect the applicant or claimant either as the officer-ALJ or the representative-attorney. 

Public confidence in any system of adminstrative decisions has to rest on the assumption that justice is meted out in a just manner.  Similar circumstances achieving similar results with the decision-maker carrying out carefully crafted rules and guidelines without letting unstated personal bias change he decision.  Of course some of the decision-making is just dishonest.  Not in a corrupt way but in failing to be honest with the person in front of them about the problems that the officer or ALJ had to give that person an opportunity to either explain why the assumptions are not worth a warm pitcher of spit.