On Luck

by Jason Dzubow

For years, practitioners and academics have complained about inconsistent decisions at the Asylum Offices and the Immigration Courts, and there’s plenty of data to back up this concern. Recently, two sets of cases in my office brought this problem home, and illustrated how luck impacts who receives protection in the U.S. and who does not.

The first set of cases involves two siblings whose uncle was a well-known member of the political opposition. As a result of the uncle’s activities in the early 2000’s, his siblings–including my clients’ father–were all arrested and held in jail for years. Thus, for a good portion of their childhood, my clients grew up without their father. After he was released, the father resumed his life and his children (my clients) eventually came to the United States to study. While they were here, the father was re-arrested for seemingly pretextual reasons. Fearing for their own safety, the siblings filed for asylum. Both cases were referred to Immigration Court, and the siblings hired me for their cases. As far as I could tell, the cases were exactly the same. Neither sibling had engaged in political activity; both cases were based on the relationship with their high-profile uncle and the home government’s persecution of the entire family. Also, we submitted the same evidence in each case and both applicants were found credible. The only difference between the two cases is that the siblings had different Immigration Judges. The first case was before a judge with a 62% denial rate and the second case was before a judge with a 91% denial rate (according to TRAC Immigration). We won the first case and DHS did not appeal,. So in a sense, the second case was different in that one sibling had already been granted asylum. Unfortunately, that was not enough. DHS opposed asylum in the second case (even though they had not appealed the grant in the first case) and the IJ denied relief. The case is currently on appeal.

Sometimes, it may make sense to try to change venue.

The second set of cases involves members of a religious minority who faced persecution by their government and by extremists in their country. These cases were before the Asylum Office. The lead applicants were all related, either as siblings or in-laws, they were members of the same congregation back home, and they faced mostly the same persecution. Also, we submitted similar evidence in each case and all the applicants were deemed credible. Out of four cases in 2019 and 2020, we received three grants and one denial. The main difference between the four lead applicants was that the person who was denied had the strongest case due to past imprisonment in his country. Also, the denied case was the most recent decision, and so we had informed the Asylum Office that other family members were granted asylum on basically the same facts. In the denied case, the Asylum Office found that the applicant suffered past persecution, but found that country conditions had changed, such that the situation was now safe. It seems odd that the Asylum Office would find changed country conditions in one case, but not the others. The referred case is now before an Immigration Court.

So here we have two situations where the applicants presented nearly identical cases, but received different results. Why did this happen? As far as I can tell, the reason is luck: Some adjudicators are more likely to grant asylum than others, and this gives us inconsistent results. Also, some adjudicators seem to be inconsistent from one case to the next, in that their mood at a given moment may influence their decision. And so, the outcome of a case is dependent–at least in part–on the luck of the draw.

This is obviously not a good thing. While I agree with former Chief Immigration Judge MaryBeth Keller that we “don’t want decisions on asylum made according to mathematical formulas as if by computers,” I do think disparities are a serious problem, which should be addressed at the policy level. But what can individuals do about the problem of luck in asylum cases?

In thinking about this question, I am reminded of Reinhold Niebuhr’s Serenity Prayer–

G-d, grant me the serenity to accept the things I cannot change,
Courage to change the things I can,
And wisdom to know the difference.

But how do we know what we can change? Some things are obvious: We can gather the evidence needed for a case, make an appropriate legal argument, try to weed out inconsistencies, prepare testimony beforehand, dress appropriately for court, etc. For those who can afford it, having a competent attorney can make a big difference. For those who cannot afford legal help, securing pro bono (free) assistance is important (though finding pro bono help is often not easy).

Some things are harder to control. For Immigration Court, it is possible to get an idea about the asylum grant rate for your particular judge (for newer judges, data may not be available). If you find your judge has a particularly high denial rate, you might consider moving to a new jurisdiction in order to change venue to a different court, where you will hopefully get a better judge. I rarely recommend this option to my clients, as moving is largely a crap shoot–the IJ may refuse to transfer the case, you may end up with a worse judge despite the move (and a judge who may be “bad” for most applicants might be “good” for certain types of cases), and you may substantially delay the case. Also, of course, moving to a new state is disruptive and expensive. Despite all this, if you have a particularly difficult judge, it may make sense to try to move the case.

Forum shopping is even less useful for cases at the Asylum Office. While there is some data about the overall grant rates for the different offices, there is no information available about the individual Asylum Officers. Even if such data existed, it would be of little value, since you won’t know who your Officer is until the day of the interview, when it is too late to switch. While it is possible to move to a jurisdiction with an “easier” Asylum Office, given all the variables, this often makes little sense. On the other hand, if you have the flexibility to live anywhere, why not live somewhere with a good Asylum Office?

For the most part, then, you are stuck with your adjudicator, but you have a fair bit of control over the case you present. In my experience, it is more productive to focus on the case itself, rather than worry about who will decide that case. In the end, the absence of control is a fact of life for asylum seekers and for us all. Perhaps a quote from another of my favorite theologian–Saint Augustine–provides an appropriate conclusion here: Pray as though everything depends on G-d. Work as though everything depends on you. At least in this way, you cover all your bases.

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The All-or-Nothing Problem

by Jason Dzubow

The debate over immigration–legal and illegal–has become more divisive and seemingly more intractable in the face of the current Administration’s hard-line policies. In a democracy, ideally, people with different views about immigration would talk to each other and reach some type of compromise solution. That is difficult with any issue, but it is particularly problematic when it comes to immigration. There are many reasons for this, but for me, one reason stands out: Immigration is an all-or-nothing proposition.

What I mean is, under the immigration law, either a person gets to stay in the U.S. or they get deported. There is no middle ground. Contrast this with the criminal law. If a person robs a bank, for example, there are a wide range of responses available under our system of justice. The person could be sentenced to jail (for a short time or a long time), or fined (a lot or a little), or given probation. Perhaps the bank robber is a good candidate for rehabilitation and can be placed into a program to obtain appropriate services. In short, a criminal judge has many options, and can–theoretically–tailor a solution to fit the particular circumstances of the case. Immigration Judges have far fewer options.

When a person is placed into Immigration Court, it is for one reason: The U.S. government believes that the person should be deported from the United States. The charging document, called a Notice to Appear (“NTA”), lists the reason(s) why the “respondent” (the non-citizen) can be deported. If you look at the allegations in a typical NTA, you will see: (1) You are not a citizen or national of the United States; (2) You are a citizen and national of country X; (3) You entered the United States on a particular date with a particular visa (or without a visa); (4) You overstayed your visa and no longer have permission to remain in the U.S., or you committed some act (such as a crime) that makes you ineligible to remain in the United States. Sometimes, respondents deny the allegations. Maybe the government got it wrong. Maybe the person is not deportable. Usually, though, the allegations in the NTA are correct, and the respondent concedes removablity, and proffers some type of defense to being removed. Common defenses include asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, and adjustment of status. There are also other, less common, options. At the end of the day, the respondent will either be granted relief based on one of these defenses, or he will be ordered to leave the United States.

Making a reasonable argument in the immigration debate is like bringing a flower to a gun fight.

Under this legal regime, there is basically no opportunity for compromise. The respondent wins everything or loses everything. One exception (sort of) is the asylum applicant who receives the “lesser relief” of Withholding of Removal or protection under the United Nations Convention Against Torture (“CAT”). An applicant will receive “lesser relief” where she is ineligible for asylum. Committing a crime could render a person ineligible. So could missing the asylum-filing deadline. Asylum is the better form of relief, since asylees can bring immediate family members to the U.S., can travel, and can eventually get their green cards and become U.S. citizens. People who receive Withholding or CAT can stay in the country with a work permit, but they cannot bring their family members here, travel or obtain their green cards or citizenship. This type of “compromise” (if it can be called that) leaves the respondent in a strange limbo: Here, but not here. Unable to feel secure in their status or stable and safe in the U.S. It also seems unfair, at least to me, to “punish” asylum seekers with lesser relief when their only mistake was to file late for asylum. Why should such people be treated the same way as criminals under the asylum law? So for me, if “lesser relief” in an asylum case is a compromise, it is a poorly thought out compromise, which has little basis in equity or justice.

I wonder if there could be another model. Is there a moral middle ground that allows qualified respondents to stay and feel secure here, but that does not completely ignore past immigration misdeeds? In other words, is there a way to satisfy Americans who don’t want the government to grant amnesty to law-breakers, but at the same time, to provide a viable path for respondents seeking relief in Immigration Court?

One could argue–convincingly in my opinion–that the existing immigration system does not give immigrants a pass, even if they do receive relief. For one thing, it’s not cheap to obtain a green card or citizenship ($1,225 and $725, respectively, if you only consider direct fees to the government). Also, most immigration applications (with USCIS or with the Immigration Court) take a long time. If you do receive relief and then want your family members to join you here, that process will usually take additional years. So even in the best case, immigration to the U.S. is not easy and not cheap.

Although respondents pay a price (in money and time), the current immigration system does not provide the type of flexibility available to judges in criminal or civil cases. So what can be done?

One possibility is to impose fines on respondents who violate the immigration law. If relief is granted, the Immigration Judge can determine whether a law was broken, and if so, whether a fine is appropriate, and how much. Relief would then be conditioned on completing payment of the fine. Of course, a major criticism of fines (in civil and criminal cases) is that they are a tax on the poor, and that they prevent people from achieving financial stability. In the asylum context, fines would likely be inappropriate, since it is perfectly lawful for anyone–even people who do not have permission to enter the country–to seek asylum. But in other contexts, fines might make sense.

Another possibility is to impose a waiting or probationary period on people who are granted relief. This already happens in certain cases (and indeed, the green card itself might be viewed as a type of probation, since it can be lost for not following the rules). For example, there are only a limited number of green cards available through Cancellation of Removal, and so if such relief is granted, the applicant usually has to wait (for a year or two) before a green card is available. This is akin to “waiting your turn,” which seems so important to people concerned about immigrants “jumping the line.”

Finally, in some cases, it may be appropriate to impose certain conditions on people who receive relief in court. For example, if an applicant has a prior conviction for DUI, perhaps the Judge could require the applicant to attend AA meetings or complete community service. For people with other criminal issues, maybe anger management classes would be appropriate. In some cases, maybe English classes or job training would be important. Final relief could be contingent on fulfilling your court-imposed obligations.

All these ideas are imperfect and preliminary. Perhaps it’s a fool’s errand to try to satisfy those who oppose “amnesty” for non-citizens. Maybe the lesson of the Trump Administration is that policy is made by imposing our ideas on others and eschewing compromise. Maybe. But for me, I still have hope that we can reach a point where civil discourse and reasonable compromise are possible. And certainly, as the political landscape continues to change (hopefully, at some point, for the better), we should be thinking about ways to re-work our immigration system so that more Americans have a stake in that system and feel that it serves their needs. Giving Immigration Judges more flexibility may be one path towards that goal.

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New Data Shows that Most (But Not All) Asylum Offices Are Getting Tougher

by Jason Dzubow

Last fall, the Asylum Division cancelled its quarterly stakeholder engagement meeting and postponed the release of data about the various Asylum Offices. Now, finally, that information has been released. The news is generally bad (who would have guessed?), but the data contains some bright spots and surprises–as well as a few mysteries. Here, we’ll take a look at the most recent news from our nation’s Asylum Offices.

First, the data. The Asylum Division has released statistics for FY2019, which ended on September 30, 2019. The data shows that despite the Trump Administration’s hostility towards asylum seekers, many people continue to seek protection in the United States–through the fiscal year, a total of 82,807 new affirmative asylum applications were filed (and remember that some of these cases include dependents, so I imagine the total number of people filing for asylum in FY2019 is well over 100,000). Case completions are still not keeping up with new filings, and the overall asylum backlog continues to grow: From 323,389 at the beginning of the fiscal year, to 339,836 at the end. Throughout the year, the number one source country for new asylum cases was Venezuela. China was number two for most of the year, followed by Guatemala, Honduras, El Salvador, and Mexico.

In terms of grant rates, the news is fairly negative, but not uniformly so. As an arbitrary base-line, I will use a post I did in February 2016 about Asylum Office data from the second half of FY2015 (April to September 2015). I calculated the percentage of cases granted at each Asylum Office. In crunching the numbers, I discounted cases that were denied because the applicant failed to appear for an interview, but I included cases that were denied solely because the applicant failed to meet the one-year asylum filing deadline. I’ve made the same calculations for the period April to September 2019, and compared the grant rates for both time periods in the chart below. 

Whenever a lawyer does math: Beware!

As I mentioned, I did not include “no shows” in my data. For this reason, government statistics about the asylum grant rate will be lower than my numbers, since they include people who failed to appear for their interviews. If I had included “no-shows,” the FY2019 grant rate in Arlington would be only 19.5% (instead of 26.5%, as shown in the chart). The New York grant rate would drop to a paltry 7.1%, and the grant rate in San Francisco–the “best” asylum office–would fall to a still-respectable 54.0%. Arguably, it makes sense to include “no shows,” since some people may not appear due to no fault of their own. However, I chose to leave them out, since I suspect most have either found other relief or have left the country, and I don’t think it is useful to evaluate Asylum Offices based on denials where the applicant never appeared for an interview.

One problem with my comparison is that there are more asylum offices today than there were in 2015. The two new offices are Boston and New Orleans. The Boston office was previously a sub-office of Newark, and the New Orleans office was part of the Houston office (though in truth, I am not sure whether all of New Orleans’s jurisdiction was covered by Houston, or whether some was covered by Arlington). To account for this, the first numbers listed for Houston and Newark for FY2019 is the percentage of cases granted in that office. The numbers in parenthesis for Houston and Newark include cases that would have been within the jurisdictions of those offices in FY2015 (i.e., the New Orleans cases are included with Houston and the Boston cases with Newark). Thus, the parentheticals are useful only for comparison with the FY2015 numbers; if you are just interested in the percentage of cases granted in Houston and New Orleans in FY2019, look only at the first number.

The same chart, but here, I have removed one-year bar denials (reminder: Beware!!).

As you can see, there is an overall decline in the grant rate at most offices. In some cases, this decline is quite significant. One office–Houston–bucked the trend and actually granted a higher percentage of cases than in FY2015.

But perhaps things are not quite as bad as they appear. The numbers in the first chart include cases denied solely because the applicant failed to file asylum on time (remember that you are barred from asylum unless you file within one year of arriving in the U.S. or you meet an exception to that rule). In the second chart, I factored out cases that were denied solely because they were untimely (the Asylum Offices have been identifying late-filed cases and interviewing them; unless the applicant overcomes the one-year bar, the case is referred to Immigration Court without considering the merits of the asylum claim; since they are interviewing many such cases, this is pushing overall denial rates up). Comparing the two fiscal years in chart two, the decline in grant rates is much less severe. Indeed, three offices granted a higher percentage of timely-filed cases in FY2019 than in FY2015.

So what’s happening here? Why did grant rates generally decline? Why did some offices improve? What does all this mean for asylum seekers?

First of all, these numbers must be taken with a big grain of salt (and not just because I am an incompetent mathematician). A lot is going on at each Asylum Office. Different offices have different types of cases, including different source countries, greater or fewer numbers of unaccompanied alien children (“UAC”) cases, and different policies in terms of interviewing untimely applicants. As a result, some offices may be interviewing more “difficult” cases, while other offices are interviewing more “easy” cases. Offices that interview many Central American cases, or many UAC cases, for instance, will likely have lower grant rates than other offices. This is because Central American cases and UAC cases are more likely to be denied than many other types of asylum cases. Also, some offices are more aggressive than others in terms of identifying and interviewing untimely asylum cases. Offices that interview more late-filed cases will likely have a higher denial rate than offices that interview fewer late-filed cases.

Despite all this, it is fairly clear that the overall trend is negative. One obvious reason for this is a series of precedential cases and policy changes during the Trump Administration that have made it more difficult for certain asylum seekers, particularly victims of domestic violence and people who fear harm from Central American gangs. In addition–and I think this is probably less of a factor–the leadership at DHS and DOJ has repeatedly expressed hostility towards asylum seekers and encouraged the rank-and-file to identify and deny fraudulent applications.

Finally, as my colleague Victoria Slatton points out, it’s possible that the negative trend is worse than what the numbers above reflect. In FY2015, the Asylum Division gave priority to UAC cases. Since such cases are more likely to be denied, interviewing more of them may have pushed the overall grant rates down. In FY2019, UAC cases were not given priority, meaning that (probably) fewer UACs were interviewed. All things being equal, fewer UAC cases should mean a higher overall approval rate, but that is not what happened at most Asylum Offices. This may mean that more non-UAC cases are being denied today than in FY2015.

As you can see, there are a lot of moving parts, and a lot is going on behind these numbers. In one important sense, though, things have not changed much in the last four years. Strong cases still usually win; weak cases often fail. For asylum seekers (and their lawyers), we can only control so much of the process. Submitting a case that is well prepared, consistent, and supported by evidence will maximize your chances of success. And as the numbers above show, success is still possible even in these difficult times.  

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