https://trac.syr.edu/immigration/reports/672/
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Completed Asylum Cases and Outcomes
Asylum grant rates have often been the focus of public attention and discussion. An implicit assumption is often made that if the immigrants’ asylum applications are denied that they have been unsuccessful in their quest to legally remain in the U.S. However, this may not always be the case. In addition to asylum, there are often other avenues for relief, and other types of decisions where the Immigration Court can determine that an individual should be allowed to legally remain in the U.S. This report breaks new ground in empirically documenting just how often asylum seekers’ quests to legally remain in the U.S. have been successful.
According to case-by-case records of the Immigration Courts, Immigration Judges completed close to one million cases (967,552) on which asylum applications had been filed during the last 21 years (October 2000 – September 2021). Of these, judges granted asylum to 249,413 or one-quarter (26%) of these cases.
However, only about half of asylum seekers were ordered deported. More specifically, just 42 percent received removal orders or their equivalent,[4] and an additional 8 percent received so-called voluntary departure orders. These orders require the asylum seekers to leave the country, but unlike removal orders voluntary departure orders do not penalize individuals further by legally barring them for a period of years from reentry should their circumstances change.
The remaining one-quarter (24%) of asylum seekers were granted other forms or relief or Immigration Judges closed their cases using other grounds which allowed asylum seekers to legally remain in the country.[5] When this proportion is added to asylum grant rates, half of asylum seekers in Immigration Court cases — about twice the individuals granted asylum — have been successful in their quest to legally remain in the United States at least for a period of time. See Figure 5.
Figure 5. Outcome of U.S. Asylum Applications, October 2000 – September 2021
Focusing on just Immigration Court asylum cases, however, does not take into consideration asylum seekers who have asylum granted by Asylum Officers from the United States Citizenship and Immigration Services (USCIS). Those cases end there with the asylum grant. Only unsuccessful cases are forwarded to the Immigration Court for review afresh, and thus included in the Immigration Court’s records. These referrals of asylum denials by USCIS Asylum Officers are classified in the Court’s records as affirmative asylum cases,[6] to distinguish them from those that start with DHS seeking a removal order from the Immigration Court and the asylum claim being raised as a defense against removal.
Thus, a more complete picture of asylum seekers to the U.S. would add in the asylum grants by USCIS on these affirmative cases. Over the period since October 2000, the total number of asylum grants totals just under 600,000 cases – more than double the asylum grants by Immigration Judges alone.[7] Asylum Officers granted asylum in just over 350,000 cases, while Immigration Judges granted asylum in an additional close to 250,000 cases. See Tables 5a and 5b.
Asylum grants thus make up almost half (46%) of the outcomes on the total number of 1.3 million cases closed in which asylum applications were filed. An additional one in five (18%) were granted some other form of relief or otherwise allowed to legally remain in the U.S. Thus, almost two-thirds (64%) of asylum seekers in the 1.3 million cases which were resolved have been successful over the past two decades.
Figure 5 above presents a side-by-side comparison of asylum case outcomes when examining Immigration Court completions alone, and how outcome percentages shift once Asylum Officers’ asylum grants are combined with decisions made by Immigration Judges.
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Outcome on Asylum Cases Number Percent** IJ Outcome on Asylum Cases Asylum Granted by IJ 249,413 26% Other Relief, etc. 236,889 24% Removal Order 403,252 42% Voluntary Departure Order 77,998 8% Total IJ Asylum Completions 967,552 100% USCIS + IJ Outcome on Asylum Cases Asylum Granted by USCIS+IJ 599,772 46% Other Relief, etc by IJ 236,889 18% Removal Order by IJ 403,252 31% Voluntary Departure Order by IJ 77,998 6% USCIS + IJ Asylum Completions 1,317,911 100%
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Read the complete TRAC report, containing all the graphs and charts that I could not adequately reproduce, at the link.
Applying the 50% “granted protection of some type” rate in Immigration Court to the ever expanding backlog of 667,000 asylum cases in Garland’s dysfunctional EOIR, that means that there are at least 333,000 asylum seekers who should be “out of Garland’s backlog” and legally living, working, and/or studying in the U.S., probably over 165,000 of whom should be on the way to green cards, citizenship, or already citizens in a functional system!
And, the TRAC-documented success rate has been achieved in a system that has been designed with bias to deter and discourage asylum seekers with mediocre, or even hostile, judges, a BIA that lacks asylum expertise and turns out incorrect restrictionist precedents, and administrative leadership that specializes in ineptitude, toadyism, and mindless “aimless docket reshuffling.”
Obviously, the “get to stay” rate would be much higher with better-qualified, better-trained, merit-selected judges, guided and kept in line by a BIA of America’s best and brightest appellate judges with proven expertise in asylum, immigration, human rights, due process, and racial justice, and dynamic, inspiring, well-qualified leadership. For a great example of what “could have been” with a better AG, see, e.g., https://immigrationcourtside.com/2021/12/18/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8courts-justice-courtside-proudly-announces-the-dream-bia-its-out-there-even-if-garland/.
Better problem-solving-focused judicial leadership at EOIR could come up with innovative ways of screening and getting the many aged, grantable cases of asylum seekers and other migrants (cancellation of removal, SIJS, and “stateside processing” come to mind) out of the Immigration Court backlog and into an alternative setting where relief could granted more efficiently. For the most part, there is no useful purpose to be served by keeping cases more than three years old on the Immigration Court docket.
The Immigration Courts must work largely in “real time” with real judges who can produce consistent, fair results on a predictable timetable. Big parts of that are increasing competent representation, providing better legal guidance on recognizing and promptly granting meritorious cases (that, significantly, would also guide the USCIS Asylum Office), and standing up to efforts by DHS Enforcement to overwhelm judicial resources and use Immigration Courts to “warehouse and babysit” the results of their own mismanagement and misdirection of resources.
There’s no chance that Garland (based on inept and disinterested performance to date, and his near total lack of awareness and urgency) and the crew, largely of Sessions/Barr holdovers, currently comprising his EOIR can pull it off. That’s a monumental problem for migrants and American justice generally!
Without an AG with the guts, determination, expertise, and vision to “clean house” at EOIR and DOJ, or alternatively, a Congress that takes this mess out of the DOJ and creates a real Article I Immigration Court system, backlogs, fundamental unfairness, and incompetence at EOIR will continue to drag down the American legal system.
Worthy of note: The TRAC stats confirm the generally held belief that those asylum seekers held in detention (the “New American Gulag” or “NAG”) are very significantly less likely to be granted relief than those appearing in a non-detained setting. But, what would be helpful, perhaps a task for “practical scholars” somewhere, would be to know “why.”
Is it because the cases simply are not a strong, because of criminal backgrounds or otherwise? Or, is it because of the chronic lack of representation, intentional coercion, and generally less sympathetic judges often present in detention settings? Or, as is likely, is it some combination of all these factors?
Also worthy of note: Three major non-detained courts, with approximately 31,000 pending asylum cases, had success rates significantly below (20% or more) the national average of 50%:
- Houston (19%)
- Atlanta (29%)
- Harlingen (24%)
On the “flip side,” I was somewhat pleasantly surprised to see that the oft-criticized El Paso Immigration Court (non-detained) had a very respectable 48% success rate — a mere 2% off the national average! Interesting!
Also worthy of watching: Although based on a tiny, non-statistically-valid sampling (2% of filed asylum cases), Houston-Greenspoint had a 53% grant rate, compared with “Houston non-detained’s” measly 19%. If this trend continues — and it well might not, given the very small sample — it would certainly be worthy knowing the reasons for this great disparity.
In addition to “giving lie” to the bogus claims, advanced mostly by GOP nativists, but also by some Dems and officials in Dem Administrations, that most asylum seekers don’t have valid claims to remain, the exact opposite appears to be true! Keeping asylum seekers from getting fair and timely dispositions of their cases hurts them at least as much, probably more, than any legitimate Government interest.
Moreover, it strongly suggests that hundreds of thousands of legitimate asylum seekers with bona fide claims for protection have been illegally and immorally returned to danger or death without any semblance of due process under a combination of a bogus Title 42 rationale and an equally bogus “Remain in Mexico” travesty. It should also prompt some meaningful evaluation of the intellectual and moral failings of Administrations or both parties, poorly-qualified Article III judges, and legislators who have encouraged, enforced, or enabled these “crimes against humanity” — and the most vulnerable in humanity to boot!
🇺🇸 Due Process Forever!
PWS
12-24-21