For Immediate Release:
Professor Emeritus of Political Science
University of Connecticut
Accredited Immigration Advisor
Granting Political Asylum in the U.S.: How does it work and can Trump change it?
In the last few days ICE arrested about 200 Iraqi refugees in Michigan and ordered them deported. These mostly Christian Iraqis are seeking asylum in the U.S. They argue that they will face religious persecution and possibly death if returned to Iraq. They have been denied a hearing in immigration court. A federal judge has intervened. The judge’s decision should be hitting the fan early this week.
The case appears to be the result of new Trump administration rules intended to make it harder to secure political asylum in the U.S. The new guidelines order Immigration and Customs Enforcement (ICE) agents to more aggressively push for deportation. At the same time new Jeff Sessions selected judges are being added to the backlogged federal immigration courts that handle asylum claims. It’s too early to tell how the new rules will affect asylum seekers but the results are unlikely to be favorable to asylum seekers.
So how exactly does someone go about seeking asylum in the U.S. – and what are the chances of actually receiving it? On paper, the process is clear. In practice, it varies dramatically from one part of the country to another – and even from one judge to another.
What is the process for securing asylum?
To be granted political asylum in the U.S., applicants must prove that they have a credible fear of death or torture if returned to their home country. They must also meet at least one of the five conditions specified under the 1951 Refugee Convention, which the U.S. signed in 1967: persecution in one’s own country because of race, religion, nationality, political opinion or membership in a social group. Economic conditions, crime and violence by non-state actors – like criminal gangs — do not qualify a person for asylum.
To receive asylum in the U.S., the applicant must apply within one year of arrival, which is called an “affirmative application,” or after being ordered deported, called a “defensive application.” In either type of case, applicants must produce the evidence to prove persecution. Applicants have a right to have a lawyer, but the U.S. government doesn’t have to provide that lawyer if an applicant can’t afford one or find one pro bono.
In affirmative cases, a Department of Homeland Security asylum officer interviews the applicant. Less than a third of such cases are granted asylum at this level. The Trump administration wants DHS to approve still fewer. If asylum is denied, the officer issues a removal order for the applicant and refers the case to a federal immigration court. Defensive applications skip the asylum officer and are immediately referred to immigration courts.
Immigration courts aren’t like the more familiar federal courts, which are part of their own branch of government and whose judges, once confirmed by the U.S. Senate, serve for life. Rather, immigration courts are operated by the Department of Justice; the attorney general alone appoints the judges, and DHS officers serve as prosecutors. There are 54 immigration courts, which have from two to 33 judges. At the end of 2016, over 270 judges served on these courts. And they are governed mostly by administrative rules handed down by the executive branch and less so by federal case law.
New Trump rules strongly encourage ICE officers to reject and refer applicants for immediate deportation if they don’t fit the criteria or don’t have a “well-founded” fear of returning to their home country, or both. They will often reject out of hand asylum claims from countries deemed friendly to the U.S., whether or not that country respects human rights.
Not all judges rule alike.
Using data from the Syracuse TRAC immigration judge reports, I examined the performance of immigration courts and judges for the five years between 2011 and 2016. Including only judges who handled at least 100 asylum cases during this period gave me a sample of 267 judges across 54 courts. On average, judges handled about 400 cases each, ranging from a low of 108 cases over the five-year period to a high of 2240 cases.
Here’s what I found. First, despite the law’s clear criteria, asylum denial rates vary widely by judge. Of the 115,500 cases studied, judges denied asylum in just under half the cases. But that’s only the average. One judge denied asylum in nearly every case; another, almost never.
Second, as the figure below shows, asylum denial rates vary by region. Among New York’s 31 judges, the median denial rate was only 14 percent. However, the seven Houston judges denied 86 percent of asylum requests. One immigration attorney told me that the best advice she can give an asylum applicant living in Houston is to move to an area of the country like Arlington, VA, where chances of being granted asylum are much higher.