Tuesday, April 13, 2021

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While discussing ways to quickly determine if people who cross into the U.S. through Mexico are eligible for asylum, Republican Sen. Rob Portman of Ohio claimed that “only about half of them even show up for their court cases” and “only 15% of them qualify” for asylum. But government statistics aren’t that clear-cut.

A study published last year in the University of Pennsylvania Law Review found that “88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings.” The analysis of government data also revealed that 95% of nondetained individuals who filed for asylum or other forms of relief from removal attended all of their court hearings over the same time period from 2008 to 2018, the authors said.

Also, to get the 15% grant rate for asylum cases in fiscal year 2019, government officials factored in tens of thousands of people who were neither granted nor denied asylum, including the nearly 40% of people who didn’t file for asylum after a “credible fear” interview with asylum officers. 

If only the number of actual grants and denials are considered, the asylum grant rate that year would be around 32%.

In a March 21 interview on CBS’ “Face the Nation,” Portman said that the government needed to invest in ways to immediately determine if migrants apprehended when crossing the southern border meet the requirements for asylum.

“Let’s put the resources into that so people can find out right away,” he said. “Do they qualify or not? Right now, as you know, it’s four or five, six years before they know. Meanwhile, they’re living in the United States. We know that only about half of them even show up for their court cases. No wonder they’re in the United States for — for several years. And at the end of the day, only 15% of them qualify. So it’s — it’s a bad situation.”

He wasn’t the only one to make such a claim. Days later, in a March 24 press conference, Republican Sen. Lindsey Graham of South Carolina said he has introduced legislation to prevent the asylum process from being abused.

“Under the current law, if you show a credible fear, that’s the initial screening standard, you are allowed to be processed and have a court hearing on asylum,” Graham said. “The credible fear standard is too low, so we changed it to increase the requirement to pass the screening test to where it’s more likely than not you’re going to be harmed. Eighty percent of the people pass the credible fear standard, but when it comes to final adjudication, the final asylum standard, only 10%.”

As of fiscal year 2019, asylum applicants overall were reported to have waited an average of 1,030 days — nearly three years — for their cases to be decided, according to Syracuse University’s Transactional Records Access Clearinghouse, which collects and analyzes immigration data. A quarter of applicants waited even longer — 1,421 days, or nearly four years.  

But the issue of who is granted and denied asylum is more complicated than both Portman’s and Graham’s claims suggest, experts told us.

Court Attendance

A spokeswoman for Portman said his claim that “only about half” of the people coming to the U.S. attend their immigration court hearings is based on data from the Department of Justice’s Executive Office for Immigration Review. It shows that nearly 50% of removal orders are issued “in absentia” — meaning the individual fails to appear — in initial case completions.

But immigration law experts argue that EOIR’s in absentia statistics undercount the number of people actually attending court hearings by excluding the many appearances people are making while their immigration cases have not been decided.

“The government … does not report immigrants’ appearance rate,” Aaron Reichlin-Melnick, policy counsel for the American Immigration Council, wrote in a July 2019 Wall Street Journal opinion piece. “Instead it reports a related figure called the ‘in absentia rate’ — the percentage of ‘completed’ cases closed each year because the person missed court. Because the penalty for missing court is an automatic deportation order, these cases are completed rapidly. As a result, that figure overemphasizes rapid deportations for missing court and leaves out the much larger number of cases that remain pending as the immigrant diligently appears for every hearing.”

He used the following example to illustrate his point: “To simplify, imagine 10 people are scheduled to appear in court one day and nine show up. The judge issues a deportation order for the person who missed court, then deals with the remaining cases, finishing one and ordering the other eight to return for another hearing. The appearance rate for that day is 90%. The in absentia rate is a mere 50% — one deportation order divided by two completed cases.”

Susan Long, an associate professor of managerial statistics and co-director of TRAC at Syracuse University, made a similar observation in a phone interview. 

“In absentia is not hearing attendance because there may be a lot of people who are attending hearings, but the court hasn’t ruled yet and so they’re not being counted,” Long told us. If you’re talking about whether people show up, “hearing attendance is whether or not they show up,” she said.

The University of Pennsylvania Law Review study published last year claimed to be the “first-ever independent analysis of in absentia removal orders” based on EOIR data from 2008 to 2018.

Authored by Ingrid Eagly, a professor of law at the UCLA School of Law, and Steven Shafer, the managing attorney for the Esperanza Immigrant Rights Project, the study found that “88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings.”

The authors said: “If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded.”

Furthermore, the analysis revealed that people who applied for protection from removal or deportation had an even higher rate of attendance.

“Individuals who filed claims for relief (such as asylum or cancellation of removal) are very unlikely to miss court: 95% attended all of their court hearings over the eleven years of our study in pending and completed nondetained cases,” the study found.

That trend for people seeking asylum continued into FY 2019, according to a TRAC analysis, which found that nearly 99% of nondetained asylum seekers attended all of their court hearings.

Asylum Grants

To provide some background: Asylum is a form of protection for individuals who can demonstrate that they can’t or won’t return to their home country because of persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. The two ways individuals can apply for asylum in the U.S. are affirmatively and defensively.

The affirmative process is available to people, regardless of their immigration status, who are physically present in the country and are not in removal proceedings. Applications for affirmative asylum are voluntarily filed with the Department of Homeland Security’s U.S. Citizenship and Immigration Services.

The defensive process is reserved for people who are in standard removal proceedings in immigration court. The application for defensive asylum is to be filed with an immigration judge as a defense against removal from the country. 

Asylum cases that begin with a credible fear screening after a person is apprehended by border officials would fall under the defensive asylum process. 

Portman’s spokeswoman said his claim that “only 15%” of people crossing the border “qualify” for asylum was based on an EOIR table showing a FY 2019 grant rate of 15.31% in completed or administratively closed cases originating with a credible fear interview after apprehension. (The rate each year had been between roughly 12% and 16% since FY 2013.)

Meanwhile, Graham’s spokesman told us his claim was referring to an EOIR flowchart for FY 2019 showing that out of 100 people who initially claim to have a credible fear of persecution in their homeland, only 12 would eventually be granted asylum.

But experts we interviewed said it’s wrong to assume that all who were not granted asylum didn’t have a valid claim, as the senators’ claims may suggest.

For example, the FY 2019 data broke down this way:

  • Grant rate: 15.31% (8,480)
  • Denial rate: 31.94% (17,692)
  • Other rate: 11.19% (6,197)
  • Administrative closure rate: 0.03% (18)
  • Percentage of No Asylum Application Filed: 41.53% (23,001)

Footnotes in the table indicate that the “other rate” includes decisions of “abandonment, not adjudicated, other, or withdrawn,” while the administrative closure rate includes cases “that have not been placed back on the docket” after a judge granted a party’s motion to pause removal proceedings.

Experts said that the “other rate” could include some people who were not granted asylum but did receive another form of relief from removal.

“There is this other whole category of other actions which is completely undefined,” Denise Gilman, a clinical professor and director of the Immigration Clinic at the University of Texas School of Law, said in a phone interview. “For some, that might actually be withholding of removal, for example, where it’s very similar to asylum but it’s not exactly the same thing.”

Withholding of removal is a form of temporary protection that allows someone to remain in the U.S. and work legally. To qualify, individuals have to establish that it would be more likely than not that their life or freedom would be threatened by removal to another country.

The largest percentage in the EOIR table, however, is for cases in which someone is said to have not submitted an asylum application after a credible fear interview. That changes the grant rate significantly.

“It’s very strange to include in an asylum grant rate those who never applied for asylum, particularly where that group of non-applicants makes up over 40 percent of the overall group,” Jeffrey Chase, an immigration attorney and former immigration judge, told us in an email. “There is an obvious implication that those who didn’t apply aren’t real refugees, or gamed the system.”

He noted that if the rates had been calculated by considering only asylum claims that were filed and reached a conclusion of granted or denied, the grant rate for FY 2019 is 32.4%. That’s the way the rates were previously calculated and reported by EOIR, Chase said.

Gilman told us that some people pass a credible fear interview but don’t file for asylum because they don’t know that it is required.

“A lot of asylum seekers think that when you pass your credible fear interview you are now in asylum proceedings, but that’s actually not really true,” she said.

“So you’ve indicated at the border that you are seeking asylum, you’ve passed an interview that says you have a viable asylum claim, but you are not yet an asylum applicant until you actually file the I-589 form,” Gilman explained. “A lot of people, if you don’t have a lawyer, don’t even know. They think they’re already being considered for asylum. Then for those who do understand that they need to file an application still, again it may be incredibly challenging to know how and where to do that and to be able to do it in English.”

She said that border officers who conduct the initial credible fear interviews often do not explain the procedures to individuals who have been placed in removal proceedings.

“In fact, there’s been litigation about the fact that these officials don’t explain that there is a requirement that you still file your actual application and that you file it within one year of your entry into the United States,” Gilman said.

It isn’t clear if the EOIR data include individuals who missed the one-year deadline to file an asylum application, or if it counted anyone who still had time to file an application but had not done so yet.

We contacted the EOIR for clarification about its data, but have not received a response.

Even in cases in which someone was denied asylum, it doesn’t always mean the applicant didn’t have a valid claim.

“The reasons for denial are numerous,” Sarah Paoletti, a practice professor at the University of Pennsylvania Carey Law School and director of the Transnational Legal Clinic, told us in an email. 

She said one of the main issues is “a lack of legal representation” to help applicants present their case, as well as “challenges in meeting increasingly restricted interpretations of eligibility.”

Data do show that applicants who obtain lawyers are more likely to have asylum granted than those who go through removal proceedings on their own.

In FY 2019, only 16% of unrepresented asylum applicants received asylum or other forms of deportation relief, according to Syracuse University’s TRAC. In contrast, 33% of asylum applicants with an attorney received asylum or other relief.

Then, in FY 2020, 18% of applicants without an attorney and 31% of applicants with representation received asylum or another kind of protection from removal, TRAC said.

Gilman also said grant rates may be lower at times because the government imposed more restrictive rules “rather than because the applicants do not qualify under a proper definition of asylum.”

The EOIR “calculations assume that eligibility for asylum is static and objective,” which is not the case, she said in an email.

In June 2018, for example, then-Attorney General Jeff Sessions ruled that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” 

The ruling blocked many asylum seekers from even applying and also placed thousands of pending asylum cases in jeopardy, according to news reports. It wasn’t until December 2018 that a federal judge struck down the Sessions-issued rule limiting claims to asylum.

In addition, some unaccompanied minors who are granted asylum may not even show up in the EOIR statistics, TRAC has said.  

In a November 2018 post, TRAC wrote: “While the Immigration Court generally has jurisdiction over their cases, their actual applications for asylum are typically submitted directly to U.S. Citizenship and Immigration Services. If asylum officers at USCIS determine they are entitled to asylum, the Immigration Court will use the USCIS decision as a basis for closing the child’s case. However, the decision to allow them to remain in the country will not be recorded as a grant of asylum in the court’s records. This is because court records only separately track asylum decisions made by immigration judges.”

Finally, we should note that asylum cases that begin with a credible fear interview after apprehension are only a subset of all asylum proceedings.

The EOIR data show that the overall grant and denial rates for all asylum cases closed in FY 2020 — including affirmative and defensive asylum applications — were 19.12% and 54.55%, respectively. The remaining 26% of cases had “other” decisions or were closed administratively.

If only grants and denials were considered, the asylum grant rate would be 26% that year.

Of the more than 14,500 asylum applications granted in FY 2020, around 75% were defensive applications and about 25% were affirmative applications.

Editor’s note: FactCheck.org does not accept advertising. We rely on grants and individual donations from people like you. Please consider a donation. Credit card donations may be made through our “Donate” page. If you prefer to give by check, send to: FactCheck.org, Annenberg Public Policy Center, 202 S. 36th St., Philadelphia, PA 19104.

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