Fiscal year 2018 broke records for the number of decisions (42,224) by immigration judges granting or issuing asylum denials. Denials grew faster than grants, pushing denial rates up as well. The 42,224 decisions represented a 40 percent jump from decisions during FY 2017, and an 89 percent increase over the number of asylum decisions of two years ago.
This increase largely reflects asylum applicants who had arrived well before President Trump assumed office. Given the backlog in the Immigration Court only one out of five asylum decisions involved cases that took 12 months or less to decide. The one exception was for those who were unable to find an attorney to assist them. For those without representation, over half (55.8%) had cases begun in the same year. For those who were represented, only about one in ten (12.9%) were in cases that had taken 12 months or less to decide.
In 65.0 percent of these decisions this past year were asylum denials. This is the sixth year in a row that denial rates have risen. Six years ago the denial rate was just 42.0 percent. See Figure 1. (For year-by- year figures, see Appendix Table 1 at the end of this report.)
FY 2001 – FY 2018
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What Do Immigration Court Asylum Grant and Denial Rates Really Mean?
Immigration judges’ decisions on asylum applications are not necessarily the same as the outcome of each case. A denial of asylum does not automatically result in a deportation order. The individual could have qualified for some other form of relief, or was otherwise found by the immigration judge to not be deportable and was accordingly allowed to remain in the country.
Currently the government does not publish or provide public access to data that would allow complete tracking of the final outcome from all asylum cases. This occurs in part because multiple agencies are involved, often with separate tracking systems. Only a partial portrait is therefore available from Immigration Court data.
The situation is particularly confusing for unaccompanied children from Honduras, Guatemala, El Salvador and other countries that do not directly border this country. 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 (USCIS). 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.
Table 1 compares case outcome in FY 2018 for the top four nationalities seeking asylum, and compares these with asylum grant and denial rates.
Overall Immigration Court Case Outcomes in FY 2018
|Asylum Decision Grant/Deny||All Asylum Applications||All Immigration Court Cases|
Can Remain in U.S.
Can Remain in U.S.
Note that for El Salvador, Honduras, and Guatemala the proportion allowed to remain in the country is higher than the asylum grant rate. As a result, the proportion of those allowed to remain in the country is somewhat higher than the simple grant and denial rate suggests.
Of course, not all individuals from these three countries apply for asylum in Immigration Court. The last two columns in Table 1 include the outcome for all Immigration Court cases. The proportion of those allowed to stay from these three countries is somewhat higher even than on those submitting asylum applications to the court. This partially reflects the inclusion of favorable outcomes for many unaccompanied children’s cases who submit their application to USCIS rather than directly to the Immigration Court.
Absentia and Representation Rates
Rising denial rates were not the result of asylum seekers failing to show up for their hearing. During FY 2018, only 573 or 1.4 percent were denied asylum because they failed to appear for their scheduled hearing. That meant for 98.6 percent of all grant or deny decisions, the immigrants were present in court.
The unavailability of representation also did not explain the rising denial rates. In fact, FY 2018 saw a turnaround in the proportion of decided cases with representation. During FY 2018 representation rates increased to 84.4 percent, as compared with 78.4 percent during FY 2017. As shown in Figure 2, during the four previous years from FY 2014 through FY 2017, representation rates had been below average as the number of asylum cases rose. (Appendix Table 2 provides the underlying statistics.)
This rebound during FY 2018 in part reflects the delayed impact of many organized efforts to provide pro bono legal representation. These efforts picked up speed after the asylum seekers from Central America – many involving mothers with children — began arriving in large numbers beginning in 2014. These efforts have continued to expand. However, given the frequent delays before Immigration Court hearings can be scheduled, it has taken some time before many of these represented cases worked their way through to a final decision.
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Judge-by-Judge Differences in Asylum Decisions
The outcome for asylum seekers continued to depend on the identity of the immigration judge assigned to hear the case. The San Francisco Immigration Court led the country in having the widest disparity among judges serving on the same court. Depending upon the judge, denial rates ranged from 97 percent down to 10 percent.
Comparisons for other districts can be seen here. TRAC’s annual update of its individual judge-by-judge asylum decision report series accompanies the release of this report. These latest updates cover FY 2013 through FY 2018.
Recent Trends Under President Trump
While Figure 1 shows a fairly steady rise in asylum denial rates since FY 2015, the month-by month picture gives a more nuanced impression. Against a backdrop of natural month-to-month variability, Figure 3 shows that there were periods of relative increase followed by stretches where rates showed little average gain. The switch to a purple line from blue shown in Figure 3 marks where President Trump assumed office following President Obama.
The graph indicates that asylum denial rates rose during the initial months of the Trump Administration. However, after that denial rates stabilized. Only very recently beginning in June of this year did denials climb again. This latest rise corresponded with decisions announced by former Attorney General Sessions that strictly limited the grounds on which immigration judges could grant asylum. Central American women and children fleeing from gang and domestic violence no longer were deemed asylum candidates. Not surprisingly, following this new hard line on immigration enforcement, the rate of asylum denials has recently climbed.
September 2014 – September 2018
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|Fiscal Year||Asylum Decisions||Asylum Granted||Asylum Relief Denied||Other Relief Granted||Percent Denied|
|Fiscal Year||Asylum Decisions||Represented|