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Jason Dzubow on Political Asylum

Immigration Judges Repudiate Asylum Officers

Rating: 3 votes, 5.00 average.

The Executive Office for Immigration Review has released its Statistical Yearbook for FY 2010.  Page 33 of the report lists the Immigration Court grant rates for affirmative and defensive asylum cases.  According to the report:


There is some difference in the grant rates depending on whether the asylum application was filed affirmatively or defensively.  There are two ways that aliens may request asylum: "affirmatively," by completing an asylum application and filing it with a DHS Asylum Office; or "defensively," by requesting asylum before an immigration judge [after the alien has been placed into removal proceedings]. 


The IJ grant rate for affirmative cases is significantly higher than for defensive cases:




































Year



 IJ Grant Rate for Affirmative Asylum Cases



IJ Grant Rate for Defensive Asylum Cases



 FY 2006



 51%



 34%



 FY 2007



 51%



 39%



 FY 2008



 51%



 37%



 FY 2009



 55%



 36%



 FY 2010



 61%



 35%



This seems counterintuitive-affirmative cases have already been reviewed by the Asylum Office, which should have granted the applications that qualify for asylum, so the Immigration Courts are only reviewing affirmative cases that have previously been denied.  Defensive cases, on the other hand, come before the Court for the first time, so the judges are reviewing the good cases and the bad cases.  The low grant rate for defensive cases can be explained (many are denied because they are not filed within the one year deadline or because the claims are barred for other reasons, such as criminal convictions), but what interests me is the relatively high grant rate for affirmative cases.


 


Judges are not pleased by the high number of referred asylum cases.

Each affirmative asylum case has already been reviewed and denied (technically, referred) by the Asylum Office.  Thus, all the affirmative cases that come before the Immigration Court have been examined and rejected by a trained asylum officer.  Why, then, are 61% of those decisions being reversed by Immigration Judges? 


One reason may be that more asylum seekers are represented before judges than before the Asylum Office.  There is no doubt that a good attorney makes a difference in whether a case is granted (88% of unrepresented asylum seekers are denied, as compared with about 55% of represented asylum seekers). 


Also, because Asylum Officers generally do not need to describe their reasons for a denial, they can be more sloppy than IJs.  I experienced this in a recent decision referring one of my clients to court: the Asylum Officer used a boilerplate excuse-that there were "material inconsistencies" in the client's testimony-to deny the case.  In fact, the client's testimony was consistent with her affidavit, supporting documents, and country conditions.  However, because the Asylum Officer is not accountable to anyone for his decision, he can deny the case without explaining himself (and in a manner that-to me at least-was intellectually dishonest).   


When Asylum Officers refer cases to court that should be granted, it is a waste of government resources.  It also causes unnecessary stress and expense (not to mention wasted time) for the alien.  I don't know whether it has been done before, but it would seem worthwhile to study referred cases that have been granted by IJs.  Perhaps such a study would lead to improvements in how the Asylum Offices (or the Immigration Courts) adjudicate cases.


Originally posted on the Asylumist: www.Asylumist.com.

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