Answering the Impossible Question

by Jason Dzubow on March 23, 2017

Possibly the most common question I hear at initial consultations with asylum seekers is, “What are the chances that I will win my case?” It’s a reasonable question. People want to know the likelihood of success before they start any endeavor. The problem is, it’s impossible to answer this question. Why is that?

The other Impossible Question: “Does this dress make me look fat?”

One reason is mathematical. Probabilities are tricky to calculate and even more tricky to understand. Also, it is very hard to apply probabilities in a meaningful way to a single event. What does it mean, for example, when the weather report shows a 30% chance of rain? If you run 100 computer simulations of the weather, it will rain 30 times. But in the real world, it will either rain or it won’t. The problem is that we do not have complete information to start with, and that there are too many variables to predict precisely how the weather will evolve over time. Without sufficient information, we have to approximate, and we are left with a range of possible outcomes and probabilities. As Niels Bohr observed, “Prediction is very difficult, especially if it’s about the future.”

Another difficulty is that predicting case outcomes involves human beings, and we are a notoriously capricious species. At the outset of a case, the lawyer may not know whether the client can get needed evidence, or whether she can remember her testimony, or how a witness will behave. Also, the lawyer may not know who the fact finder will be (with Immigration Court cases, we usually know in advance; for Asylum Office cases, we never know until the day of the interview). Also, what if the fact finder is in a particularly good or bad mood on the day of the case? Or what if she is hungry during the case (one Israeli study famously correlated favorable parole decisions to whether the judge had recently eaten lunch!)? These “human factors” can greatly affect the decision, and few of them can be known in advance, which again makes predicting difficult.

That’s not to say we know nothing about the likelihood of success. For Immigration Court cases, there is data available about the grant rates of individual Judges. Also, there is some data available about Asylum Office grant rates. Of course, all of this is very general and does not necessarily bear much relationship to the likely outcome in a given individual’s case, but I suppose it’s better than nothing.

As a lawyer, once you get a sense for asylum cases, you can at least give the client some idea about the outcome. I can tell a strong case from a weak case, for example. If the client has a lot of credible evidence, has suffered past persecution on account of a protected ground, and faces some likelihood of future harm, the client has a strong case. The most I will say to such a prospective client is that, “If the adjudicator believes that you are telling the truth, you should win your case.” I might also say that since the corroborating evidence is strong, it is likely that the adjudicator will believe the claim.

I do think there is a basic human desire behind the question about the chances for success, and that is the desire for certainty. Asylum cases now take years, and it is very difficult to live your life for so long under the threat of deportation. When the clients ask about the likelihood of success, I know part of what they want is reassurance. Even if the case is weak, they want to feel like they have a chance. They want to feel that what they are building in the U.S. while they wait for a decision will not all be lost. How, then, do we balance the need for certainty with providing an honest evaluation of the case?

For my clients, I try to give them both honesty and hope. In the beginning, I give the client my honest assessment of the case and the likelihood of success. Knowing my assessment (whether it is good or bad), if the client decides to go forward, my focus shifts to creating the strongest case possible with the facts and evidence available, and to helping reassure the clients so they feel some hope. I try to encourage the client to do what is within their power to make the case better: Gather evidence, talk to witnesses, find experts, etc. At least this helps empower the client a bit, and it gives them some agency over their case outcome.

Different lawyers do things differently, and there are probably many “right” ways to balance realism and hope. There are also wrong ways. Any lawyer who “guarantees” you will win an asylum case is a lawyer you should avoid. No lawyer can guarantee a win because we do not make the decisions–the government does. Also, lawyers who make dubious promises (“I am good friends with your Judge, so I can get you a quicker hearing date”) are probably lying to get your business. Be careful, and remember that offers that seem too good to be true probably are. For all its flaws, the American immigration system is largely free from corruption. Lawyers don’t have special relationships with adjudicators that can change outcomes or speed adjudication. When a lawyer oversells hope at the expense of realism, you are safer to seek a different attorney; one who is more interested in telling the truth than in selling you his services.

So when a prospective client asks me the chances for success, I’ll try to give the best evaluation I can, so that the person can make an informed choice about whether to file an asylum case. Once the case is started, I will try to address weakness and gather evidence to maximize the chances for a win. I will also try to encourage the client, so that she has some hope during the long wait.

{ 10 comments… read them below or add one }

Raaz September 12, 2017 at 8:13 pm



Nika August 28, 2017 at 5:21 pm

If briefly, the situation is as follows:
Two women (we are lesbians) and a 15-year-old daughter. At the moment, our family is in the United States. I came from a Muslim country – Azerbaijan. As a lesbian, I struggled through my adolescence to hide my homosexuality, fearing rejection, violence and abuse from the family (my family may seek to control me even further, either as punishment or in a misinformed attempt to “cure” my sexual orientation by putting me in a mental clinic or I could be killed because dishonored the family. I was afraid of Muslim society in which I live and is consequently the target of violence and rape, police and others whom the state is unwilling or unable to control. For example, there was an incident that a US citizen was killed by the Azerbaijani police. This situation was hushed up by diplomats, but the Human Rights organization reports about it in annual Country Reports. In my country, the practice of curing gays in “normal heterosexual people” is still being applied.
I survived violence and harassment from the family and the police. My family tried to kill me, what’s known as – “honor killings”. I was threatened by the police, and when I was summoned to the police with an unknown number, I realized that it’s time to escape or I will be tortured and eventually killed. For 7 years I have been in a relationship with a woman from Israel. All these years we could not live together not only in my Muslim country but also in Israel. We met in different countries. For the reasons I have already explained, we also could not reunite and live together in Israel because of constant threats from her ex-husband, who once attempted her life and was summoned to court for this. Numerous marks of beating and cuts are fixed on her body. Her ex-husband is inclined to aggression. He constantly follows her and threatens to kill her if he will see us together. The daughter’s psyche is broken and she does not talk to her father. They are in constant stress all the time. At the moment we are living together in US. I am the main applicant. The question is:

We talked to a lawyer and he said that in our situation, we have chances to get asylum in the US and that my girlfriend’s Israeli citizenship will not become the reason for deportation for the following reasons:
1. Reasonableness of Internal Relocation Alternative – INTERNAL ONLY.
2. Safe Third Country – CANADA ONLY.

What do you think?


Jason Dzubow August 29, 2017 at 6:02 am

As long as you are not a citizen or resident of Israel, your partner’s Israeli citizenship will not block you from getting asylum. We have done many cases like this, and I would not anticipate a problem. Also, if you get legally married to her before your decision (or better yet, before your asylum interview), she and the child will also be able to receive asylum here (we had a case recently where a woman got asylum from Malaysia, and her husband – a citizen of Canada and the UK – also got asylum). Take care, Jason


sara abuganaya August 26, 2017 at 1:20 am



sara abuganaya August 26, 2017 at 1:19 am

am writing this because am seeking an replacement of my employment authorization document(EAD), I need the replacement because my name in my certificate and passort appear in form of four name but in the EAD it appear as first and last, and when I send the form of replacement to the USCIS office they send me a notice that I should provide them with explanation , I don’t know what should I write as explanation, can you please help me?


Jason Dzubow August 27, 2017 at 9:52 pm

I do not fully understand the problem – maybe you have to send them a copy of a document with your correct name on it (like your passport) and ask them to make the correction. Take care, Jason


Ko July 11, 2017 at 10:58 pm

Hi Jason,

i applied for working permit through asylum but i did applied early before the 150 days but unfortunately i got denied which is because i applied to early. so can i applied again ? because right now i’m over 150 days even 190 days now.. do you think if applied again they will approved it?


Jason Dzubow July 12, 2017 at 6:37 am

You can apply again. You will need to explain on the form that you previously applied for an EAD, but that it was denied because you filed too soon, but you are eligible and you should get the card. Take care, Jason


MARIELA M OLIVEROS August 23, 2017 at 9:52 pm

Hi Dear:
Yes you could apply again. and don’t forget attach another pic. they will approved it.


MaRia P June 1, 2017 at 7:29 am

Another thing do you always recommend go to interview with an attorney?


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