The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010. Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases. According to the report:
There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively. There are two ways that aliens may request asylum: “affirmatively,” by completing an asylum application and filing it with a DHS Asylum Office; or “defensively,” by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings].
The IJ grant rate for affirmative cases is significantly higher than for defensive cases:
|
Year |
IJ Grant Rate for Affirmative Asylum Cases |
IJ Grant Rate for Defensive Asylum Cases |
|
FY 2006 |
51% |
34% |
|
FY 2007 |
51% |
39% |
|
FY 2008 |
51% |
37% |
|
FY 2009 |
55% |
36% |
|
FY 2010 |
61% |
35% |
This seems counterintuitive–affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied. Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases. The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.
Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office. Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer. Why, then, are 61% of those decisions being reversed by Immigration Judges?
One reason may be that more asylum seekers are represented before judges than before the Asylum Office. There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers).
Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs. I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse–that there were “material inconsistencies” in the client’s testimony–to deny the case. In fact, the client’s testimony was consistent with her affidavit, supporting documents, and country conditions. However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that–to me at least–was intellectually dishonest).
When Asylum Officers refer cases to court that should be granted, it is a waste of government resources. It also causes unnecessary stress and expense (not to mention wasted time) for the alien. I don’t know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs. Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.
[…] Judges “reversing” Asylum Officer decisions is not new. Indeed, I wrote about the same issue way back in 2011. At the time, for the period from FY 2006 through FY 2010, IJs […]
The main reason for the difference in grant rate between affirmative and defensive asylum claims is country of origin. Affirmative asylum cases come from everywhere in the world, but for the most part reflect world events. For example, right now there are many cases from Egypt (Coptic Christian claims), Iran (Christian conversions), Iraq, Syria and other places that you may have heard about in the news. While Credible Fear and Reasonable Fear (defensive claims) come from everywhere as well, the vast majority are from Latin American countries. While many of these countries have serious problems, few typically have issues with GOVERNMENT persecuting people on account of a PROTECTED CHARACTERISTIC. Every case is handled on an individual basis, but the likelihood is that many Central Americans are fleeing crime, drug cartels, extortion, and other civil unrest. The story may be compelling and the officer may feel tremendous sympathy, but an adjudicator makes her/his decisions based on law and not on emotions. To suggest racism, as Kenneth does is petty and ignorant. Every asylum officer has denied cases of people he geniunely liked and wanted to help and perhaps granted a few cases where he personally did not like the applicant. The lawisthe guide and is the only thing that matters in the decision process. As for the credibility issue – every officer has granted more than a few cases where is was convinced that the applicant was being dishonest. This is because getting a denial approved by the chain-of-command takes much more than the officer being convinced. It takes a compelling legal argument. It requires showing inconsistencies and then giving the applicant ample opportunity to explain the inconsistency.
There is a high rate of fraud in asylum. Sometimes attorneys assist with this and some have gone to jail for doing so. It is important that the people who qualify get the help that they need, but this can only happen if everyone is vigilant to protect the integrity of the program.
[…] proceedings, he or she can appeal the decision within 1 month to the Board of Immigration Appeals. Asylum can be a type of relief to deportation / removal available just to aliens who qualify as refu…S). If the alien flees his / her home country and arrives in the united states, he has as long as 1 […]
The variability between individual adjudicators, whether at the asylum office or before the IJ, is great enough that it should warn against making any inferences based on the national statistics. The number of possible explanations that you could come up with to explain the disparity is large. The simplest explanation that comes to mind is the one you point to. Asylum seekers in proceedings are much more likely to have representation, which improves their changes enormously. Those who file defensively may also be less likely to have a claim in the first place, hence their reluctance to file affirmatively. There are too many variables to take into account.
But the main point I take issue with is the statement that “…Asylum Officers generally do not need to describe their reasons for a denial”. Not true. Asylum officer decisions are subject to 100% supervisory review. It is the supervisor’s job to review the decision and determine if it is legally sufficient. Supervisors, like asylum officers, are overworked and under considerable time pressures.
Now, it may be that, just as there is a great deal of variability in adjudicators, there is also a great deal of variability in supervisors, and some may not do their job as well as others, but there is at least one level of review of every decision by someone who should demand that the asylum officer provide specific and cogent reasons for their referral. And many cases get additional review from Quality Assurance and Training Officers that staff each asylum office and do random reviews of decisions, not to mention certain classes of cases that are subject to headquarters review. So, any inference that asylum officers are somehow unaccountable is simply not true. No system that relies on human beings to make complex decisions is ever going to be perfect and there is ample proof of that in the asylum program. But the asylum program does make an honest effort to do the best it can.
It’s all in the name, Hadda Nuff and Noes Better. Hadda Nuff is no use in his or her job and is biased, while Noes Better thinks he or she knows it all, regardless of evidence.
Asylum Seeker: Denied Dues to Bias. Why should I give you asylum? Go back to your country and solve your own problem. It has nothing to do with sloppiness, but bias and racism.
Immigration officials in the United States are some of the worst in the world. The are rude, arrogant and most of them are on a power-trip.
Both of you have no place in immigration and certainly not dealing with anything related to Asylum cases. Both are more of a danger to the United States and a hindrance to security, than of any real help or value. Unfortunately, there are far too many Hadda Nuffs and Noes Betters in our immigration system and in the public at large.
A name change is in order: “Don’t Know My Stuff” and “Noes No Better.”
It’s obvious that you’re attempting to use statistics that can be interpreted in many different ways to attempt to drum up business. “There is no doubt that a good attorney makes a difference in whether a case is granted.” One reason that represented aliens are granted at a higher rate than non is that a large percentage of the represented applicants are represented by quality non-profits and law school clinics who conduct thorough vetting and ensure that their limited resources are not wasted. Furthermore, those statistics are skewed by the hundreds of grants of cases that were prepared fraudulently by attorneys, whose names don’t bear repeating, who were later convicted and disbarred. You also fail to take into account several other things. Foremost of these is the lack of time that the ICE attorneys and Immigration Judges have to examine the cases they are presented with. There are massive shortages of immigration judges, there is a tremendous backlog of immigration cases, immigration judges are paid less than 1st year associates at big firms in big cities, and there is no actual requirement that immigration judges have a background in immigration law – only that they have at least 7 years of legal experience. So aliens who’ve already been interviewed, questioned about all of their unreasonable and contradictory answers, lack of detail, boilerplate applications, boilerplate affidavits, and “material inconsistencies” are referred to overworked, underpaid immigration judges and ICE attorneys who, without time and resources, then have to confront an alien who has had time to fine tune and rehearse a fraudulent story so as to perfect it. With those odds, it’s amazing that even more referred cases aren’t then granted. In Defensive Asylum claims, the alien is relaying the story for the first time under scrutiny. It makes perfect sense that more of them would be denied by the immigration judges because the alien hasn’t had the full interview, preparation and rehearsal time inherent with an asylum interview and subsequent hearing as opposed to the cases being, “good cases and bad cases.” So maybe instead of accusing asylum officers of being sloppy you should be less sloppy in picking your clients and preparing their applications.
Clearly you’re an idiot.