THE PROSTITUTION OF EYORE: Founded To Establish Independence, The Immigration Court Agency Puts Out Bogus Statistics To Support Sessions’s White Nationalist Agenda!

By Paul Wickham Schmidt (U.S. Immigration Judge, retired)

The Executive Office for Immigration Review, known as “EOIR” and pronounced “Eyore” as in the sad little donkey from Wininie the Pooh,was founded in 1983 to promote judicial independence and Due Process. Sadly, those have ceased to be the focus, as the beleaguered agency now develops and promotes bogus statistics to advance the White Nationalist xenophobic agenda of chief immigration “enforcer,” Attorney General Jeff Sessions.

Some might have noticed a new way of presenting so-called “asylum statistics.’ Recently, EOIR published the following so-called “statistical tables” on “defensive” asylum applications — that is, those filed by respondents as a defense to removal after they have been placed in proceedings before the Immigration Court. By contrast, applications filed with the USCIS Asylum Office before proceedings are instituted and thereafter “referred” to the Immigration Court if they are not granted are known as “affirmative” applications.

EYORE ROLLS OVER FOR SESSIONS

Here’s the chart:

Executive Office for Immigration Review

Anyone familiar with how immigration proceedings actually work immediately would see the problem with this presentation. However, few of those not familiar with EOIR and Immigration court would notice that glaring disconnect.

What’s the problem? This is a classic “apples and oranges”analysis. The number of “applications filed” in a particular year has little, indeed almost nothing, to do with the number granted. That’s because given the dockets at EOIR, applications are very seldom actually decided in the year that they are filed.The minority that are decided in the year filed are  almost always applications by detained, usually unrepresented, aliens. Such applications are  literally like “shooting fish in a barrel.” Detained unrepresented asylum applicants seldom receive anything even resembling Due Process and are therefore routinely denied asylum.

Moreover, because the system forces respondents to file all possible applications for relief before an “Individual Hearing” is scheduled, respondents who might actually be relying on cancellation of removal, adjustment of status, so-called “stateside waivers,” and other forms of relief must file the “backup” asylum application even if it might well never proceed to a final adjudication. Additionally, even respondents seeking only the lesser relief of withholding of removal or relief under the Convention Against Torture must file on the asylum application, Form I-589, and thus are counted as  “asylum applicants” even if they never pursue asylum.

By artificially maximizing the number of “defensive filings,” while taking the grants out of context to minimize them, EOIR artificially creates a bogus picture of only a small number of asylum applications being granted on the merits. Moreover, EOIR compounds the error by presenting a totally bogus and highly pejorative statistic of “filings to grants” without correlating the year filed with the year granted.

No honest professional statistician would participate in such a hoax. The intent obviously is to create a false narrative of overwhelmingly non-meritorious asylum applications to support Sessions’s disingenuous fabricated scenario of “asylum fraud” infecting the system. For example, according the EOIR’s bogus numbers, the ratio of “applications to grants” in FY 2017 was 17 to 1, falsely suggesting very few meritorious asylum applications.

THE “REAL DEAL”

So, what are the only meaningful EOIR asylum statistics.  The number of asylum applications granted and denied on the merits in a particular year. And, those statistics present a radically different picture. Let’s look at EOIR’s own Statistical Yearbookthrough 2016 (the last year for which it was published – the 2017 Statistical Yearbookshould have appeared in the spring of 2018 but, for some curious reason hasn’t) the last full year of the Obama Administration:

Immigration Court Defensive Grant Rate 

Grants Denials  Grant Rate

FY 12  2,854   5,480     34%

FY 13  2,592   6,188     30%

FY 14  2,747   7,254     27%

FY 15  3,390   7,644     31%

FY 16  4,836 10,842     31%

https://www.justice.gov/eoir/page/file/fysb16/download

As recently as 2016, despite the Obama Administration’s ill-advised “Southern Border Initiative” that forced more unprepared individuals into the “defensive” system faster, and notwithstanding the overall politicized slant of asylum law against Central American Asylum seekers (even before Sessions), the grant rate was a very “robust” 31%, essentially one in three, rather than the bogus one out of every 14.5 put forth in EOIR’s Sessions-driven false narrative.

Let’s look a little further into what the real numbers show. Here are the overall grant rates for asylum and withholding of removal (by regulation, all asylum applications are also considered applications for protection under the withholding of removal provisions of the INA) for the five-year period ending in 2016 :

While there is a remarkable drop in approvals in FY 2016, again, likely due to the Obama Administration’s ill-advised “Southern Border Initiative,” in FY 2016, 48% of asylum applicants whose cases were actually adjudicated on the merits received protection – essentially one-half of applicants.Again, this is a far cry from EOIR’s current misleading scenario which compares grants to both asylum applications that were not adjudicated on the merits during the year and asylum applications that have never been adjudicated and might never be adjudicated at all, as a result of Session’s mismanagement of the Immigration Courts.

Let’s dig a little further. Here is what happens to so-called “affirmative applications,” that is those made initially to the USCIS asylum Office, when they are “referred” to the Immigration court for a full hearing:

Immigration Court Affirmative Grant Rate 

Grants Denials Grant Rate

FY 12 7,721 2,964 72%

FY 13 7,175 2,589 73%

FY 14 5,925 1,937 75%

FY 15 4,794 1,172 80%

FY 16 3,890 801    83%

As we can see, the overwhelming number of affirmative asylum applications not granted by the Asylum Office are eventually granted by the Immigration Courts – a huge majority, 83% in FY 2016. At a minimum, this suggests that the USCIS Asylum Offices should be granting many more affirmative asylum applications, thereby keeping them out of Immigration Court altogether.

ACCURATE STATISTICS LEAD TO BETTER CONCLUSIONS

Overall, the real numbers lead to some obvious conclusions that refute the bogus picture of asylum abuse being painted by Sessions and his EOIR accomplices:

• About 50% of asylum applicants whose cases are decided on the merits by the Immigration Courts gain protection;
• Asylum applicants who are given fair access to lawyers and time to prepare, generally those filing “affirmative” asylum applications, succeed at extremely high rates;
• The USCIS Asylum Office could grant many more “affirmative applications” than they currently do.

All of this suggests that a much more logical approach to asylum adjudication would be:

• Treating all asylum applicants applying at ports of entry or who are apprehended near the border and found to have a “credible fear” of persecution or torture as “affirmative applicants” whose cases can be initially adjudicated, and often approved, on the merits by the USCIS Asylum Office without bothering the already overloaded Immigration Courts;
• Insuring fair access to counsel and adequate preparation time, preferably in a non-detained setting, to those seeking asylum at the border (significantly, represented asylum applicants show up for their court hearings at extremely high rates);
• Encouraging “priority scheduling” for cases in Immigration Court where the documentation is compelling and the Assistant Counsel and private counsel have worked together to narrow the issues for a likely grantof protection (obviously, there are less likely to be Due Process issues with “expediting” grants as opposed to denials).
• Exploring other forms of protection or legal status for those whose cases are now “stuck” in the Immigration Court backlog (many are now married to U.S. citizens and eligible for “stateside processing,” or have or will have viable claims for Cancellation of Removal as a result of the Supreme Court’s ruling in Pereira.)
• Restoring a more realistic and generous “prosecutorial discretion” (or “PD”) policy along the line of that followed during the later years of the Obama Administration would also help reduce and restore some order to the Immigration Court dockets.
• Keeping in mind that even denied asylum applicants more often than not are facing life threatening situations in their “home countries;” they just don’t happen to fit our current overly restrictive and legalistic interpretations of asylum law. (Indeed, in my experience most of those denied asylum were credible and had a well-founded fear of harm – they just failed to meet the rather arcane “nexus” requirements for asylum.  Upon return, denied asylum seekers often suffer harm or even death. See, e.g.,https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence;https://www.theguardian.com/us-news/2015/oct/12/obama-immigration-deportations-central-america

Of course, under Sessions, EOIR and DHS are moving in the opposite direction: seeking, without any probative evidence to support their claims, to falsely paint asylum applicants as de-humanized “numbers” who are “gaming” the system. There is “gaming” going on; but, it’s by Sessions and his “go alongs” at EOIR who intentionally are using bogus statistics to paint a false picture of our asylum system.

NO JUSTICE UNTIL BOTH SESSIONS AND EYORE RIDE INTO THE SUNSET

Asylum is an important part of our immigration system. It should and could be much more generously granted and with far less red tape and bureaucracy. Granting asylum is not only our legal obligation (with a moral foundation stemming from the disaster of World War II and its aftermath) but also benefits both our country and, of course, the individuals whose lives are saved.

Yes, there is so-called “asylum fraud.” But, by and large, it doesn’t involve those currently applying at our Southern Border. Indeed, the parts of ICE Investigations that perform reallaw enforcement work, in my experience, do an excellent job of taking apart large asylum fraud rings and “undoing” those asylum grants that were based on fraud.  Several significant Chinese and Indonesian “rings” and at least one involving Cameroonian claims were exposed and prosecuted in that manner.

The U.N Convention and Protocol relating to refugees, implemented by our Refugee Act of 1980, was intended to inspire “a generous asylum policy”and actually to extend protection

to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition. The generous letter and spirit of the Convention and the Refugee Act of 1980 also are reflected in the leading U.S. Supreme Court case, INS v. Cardoza-Fonseca, implementing the generous “well-founded fear” standard for asylum.

Jeff Sessions and his White Nationalist gang are moving to dismantle refugee and asylum protections at all levels. Part of their strategy depends on de-humanization of refugees, bogus statistics, and false narratives. Shamefully, “Eyore” has now become part of that effort, just proving again that Due Process and the rule of law won’t ever be totally restored to our country until we get an independent Article I U.S. Immigration Court.

My friend and colleague, The Honorable Jeffrey Chase, also contributed to this article. The views expressed are mine, and mine alone.

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PWS

08-16-18