USA: The Rate of Successful Asylum Cases Shot Up This Year. But That’s Probably Not Due to Biden

Of note:

There’s been a significant uptick in the rate at which immigrants have been granted asylum since President Joe Biden took office, new research shows. But that likely has nothing to do with the new President’s policies.

Asylum case success rates jumped from 29% to 37% between Fiscal year 2020 and Fiscal Year 2021, during which Biden took office, according to a new report published Wednesday by the Transactional Records Access Clearinghouse (TRAC), a data and research organization at Syracuse University. Looking only at the period Biden has been in office, the success rate has been 40% — and as high as 47% in September.
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“The obvious inference is, oh, well this is because of Biden,” says Austin Kocher, assistant professor and researcher at TRAC. But, he notes, the Biden Administration has made no major policy changes that would influence how immigration judges rule in asylum cases.

Instead, Kocher says, the higher rate of asylum grants may be due to a confluence of factors. For example, more asylum seekers this past year have had legal representation — and, historically, having a lawyer significantly increases the odds of winning asylum. (The reason for the uptick in legal representation is unclear. One possibility, the researchers say, is that attorneys representing clients with particularly strong cases may have simply succeeded in pushing their cases to the front of the line.)

Another factor may be the nationality of the people whose cases were heard. For example, Chinese applicants have more frequently won asylum cases in the past, while Haitian or Central American nationals have had lower success rates. “The country that people are from goes a long way in determining who gets asylum,” Kocher says. Geopolitics and U.S. foreign policy goals have historically played a big role in shaping asylum decisions.

The absolute number of people being granted asylum remains low, largely because courts have yet to resume their pre-pandemic decision rates after COVID-19 shut down some court activity. “The immigration courts have absolutely not recovered at all, not even a fraction really,” Kocher says. “We still have only had barely more than than 2,000 cases completed a month even right up until the end of September [2021].”

Immigrants Waiting Years for a Decision

Immigration courts are roughly 1.5 million cases behind schedule, which means thousands of people have been waiting for years for their asylum requests to be decided by a judge.

A partial shut down of immigration courts beginning in March 2020 as COVID-19 spread across the U.S. exacerbated this backlog. Before COVID-19, immigration judges were deciding approximately 10,000 asylum cases per month, according to TRAC. That number dropped after the pandemic started. In April of 2020, judges were deciding fewer than 2,000 asylum cases per month.

In Fiscal Year 2021, which ended in September, just over 23,800 asylum cases were decided in court. That’s down from 60,000 cases that were decided in Fiscal Year 2020. Roughly 8,350 people won their asylum claim in FY21, about half the number of people who won their claims in FY20, according to TRAC, which analyzed data it received through a Freedom of Information Act Request.

An additional 400 people won some type of relief from deportation in FY21 that was not asylum, the researchers note.

In the meantime, asylum seekers will likely have to continue to endure long waiting periods before their cases are heard in court. Prior to the pandemic it was not uncommon for people to wait up to four years for a case to be heard.

“The key thing here in terms of what’s driving a lot of the data is really getting past the pandemic,” Kocher says. “Until the immigration courts are fully open, and society is fully back to normal there’s just no way that the courts are ever going to be able to really get through these cases.”

Source: The Rate of Successful Asylum Cases Shot Up This Year. But That’s Probably Not Due to Biden

Higher Asylum Grant Rates Predict Higher Family Appearance Rates in Top Immigration Courts

Interesting study. Similar findings to those of Sean Rehaag, with high variance among judges (…/getting-refugee-decisions-appealed-in-court-the-luck-of-the-draw-study-shows):

TRAC Immigration, a project of Syracuse University, published a report this week, showing that 81 percent of recently released families apprehended at the border showed up for all of their hearings. Some immigration court locations did much better than others in obtaining compliance from immigrant families. San Francisco’s court had almost zero no-shows, while two and five skipped out in Atlanta.

TRAC’s report hypothesized that it was possible that “the lowered appearance rates in some courts arose from particular deficiencies in the recording, scheduling or notification systems there.” While this could be, there is no way to test for such variation. Another strong hypothesis, suggested by Aaron Reichlin-Melnik of American Immigration Council, is that immigrants are much more likely to fail to appear in courts where they have a lower probability of receiving asylum.

Fortunately, TRAC also reports asylum grant rates by immigration court, allowing us to test this.

Figure 1 shows the relationship between asylum grant rates in FY 2019 and family appearance rates in the ten immigration courts that received the most family docket cases (in order of the courts with most cases). These ten court were initially designated to track “family unit” cases in November 2018, and while this practice has expanded to several other courts, 87 percent of the family cases tracked by the government are still in these ten courts.

The five courts with the highest appearance rates had asylum grant rates on average 55 percent higher than the five courts with the lowest appearance rates (37 percent to 23 percent). The five most successful courts had 89 percent of their immigrant families appear at all hearings compared to 75 percent at the other five courts.

The asylum grant rate in 2019 predicted a very significant portion of the variance in appearance rates between courts—42 percent to be precise—that year, and a 10 percentage point increase in the asylum grant rate in a court is associated with almost a 3 percentage point increase in the appearance rate for that court. There are other ways to measure the asylum grant rate. The immigration courts include asylum cases that were closed without a decision being made on the merits. But using that metric doesn’t change the association.

Higher failure to appear rates do not explain the higher denial rates, as just 1.4 percent of asylum denials are a result of a failure of the immigrant to appear. People who skip almost always do so before they officially file for asylum. It could be that immigrants who go to certain courts like Atlanta have worse asylum claims to begin with, but as TRAC notes, “there seems little reason for families with different strengths of asylum claims to migrate to some parts of the country and avoid others.”

Ultimately, the identity of the judge seems like the most important factor in winning asylum. The Government Accountability Office in 2016 found that even controlling for other relevant factors, “the defensive asylum grant would vary by 57 percentage points if different immigration judges heard the case of a representative applicant with the same average characteristics we measured.” It would be very useful if TRAC published data on the appearance rates by judge to determine if it’s the location or the judge that matters the most.

Obviously, because we only have data for a few courts in 1 year, it is impossible to nail down this relationship with certainty, but it appears that if every court had the same asylum grant rate as San Francisco (68 percent), the appearance rate for families would have increased to 90 percent. It may seem obvious that the likelihood of success in court makes people more likely to follow the legal process. But many people’s impression is that every asylum applicant has no case, so they have no reason to show up. That’s false, but unfortunately, some courts are turning this theory into a self-fulling prophecy.

Source: Higher Asylum Grant Rates Predict Higher Family Appearance Rates in Top Immigration Courts