The Uses and Abuses of the Asylum System

The recent release of data on the immigration judges' asylum decisions by the TRAC system reminded me of the uses and abuses of the asylum process, an interesting but relatively minor part of the immigration system.

These data also cast some light on our role in Iraq, as noted below.

As the DHS 2009 Yearbook of Immigration Statistics indicates, that year's total of people with newly acquired permanent resident alien status (more than 1,130,000 of them) included 58,532 asylees, or about 5 percent of the total number of legal migrants. Were the number of asylees to be compared to the total number of migrants, legal and illegal, that small percentage would drop still further.

Asylees and refugees are roughly comparable populations, and though the size of the annual influx of both populations varies, there are usually more of the latter than the former. There were 118,836 refugees admitted in 2009 according to the Yearbook's Table 6.

Uses of the System. Asylees and refugees come to the U.S. through entirely different systems; I think this causes rather different sets of characteristics for the two populations. Both, if accepted by authorities, have successfully argued that they are subject to persecution in their home countries.

Refugees come in large groups, they usually come as families, and usually from situations in which masses of people have been displaced, either by wars (often with ethnic overtones), or by dictatorial governments, or by natural disasters.

They have been nominated for refugee status by a refugee-serving agency and approved by visiting staff from DHS; they arrive by the planeloads and their travel is paid by refugee travel loans, which are, over the years, supposed to be repaid. (For more on this sometimes lax repayment scheme, see p. 21 of my Backgrounder "Charging More for Immigration: Closing Financial Loopholes in the U.S. Migration Process.") The refugees, on arrival, are immediately put in touch with U.S.- supported voluntary agencies which help the newcomers settle in the U.S.

In contrast, asylees arrived singly, or in small groups, having paid their own airfares; then, in either legal or illegal status they apply, one at a time, for asylum, and their applications are judged by various federal officials. Sometimes they are the alleged victims of mass persecution systems, and sometimes they are the victims of rather narrower scale persecution, involving smaller numbers of people. (An asylee might be from a small African country, for example, contending that his family had been persecuted by the authorities; but the governmental problems there were not dramatic large enough to create a mass refugee outflow, so the asylee would not have had an option of coming here as a U.S.-recognized refugee.)

The asylees, to continue the comparison, may be in touch with the volags (voluntary agencies that are paid by the State Department to assist in refugee resettlement) and their supportive services after arrival, but this is not automatic, and sometimes occurs only after a substantial lapse of time.

One rarely discussed by-product of these two different processes is that, in my view, asylees are a healthier, more prosperous, and more worldly lot than the refugees, and apparently do better with American systems than the refugees.

During the 1990s I spent a lot of time studying both populations, mostly on federal grants. In the course of that work I encountered a couple of obscure federal data sets which showed the differential use of Food Stamps and SSI (Supplement Security Income) by the two populations. Asylees were much less likely to use welfare programs than refugees. I think these outcomes relate directly, and understandably, to the travel and screening processes just described, but have seen no one else's writing on the subject.

Abuses of the Asylum System. There must be some people who come to the U.S. as refugees who should not have been selected from the refugee camps, but data on that subject is largely out of sight, as the decisions are made overseas, at least partially by non-U.S.-government decision-makers.

Decisions on asylees, however, take place in the United States, before government tribunals; there is a remarkable mine of such data on those chosen – or rejected – by Immigration Judges and recorded in the TRAC system.

There are two paths to asylee status, the affirmative one and the defensive one, to use the government's terms. Both can be abused, leading to the delay of a well-deserved deportation, and, on the other hand, both can be used to obtain asylee status, the right to work, and later, a green card.

The affirmative path starts when an alien in this country, legally or illegally, goes to one of the specialized USCIS offices that deal with asylum applicants, and only with them. The alien then makes his case before a specially trained officer in a non-confrontational setting.

If the case is judged to be a good one, the asylum applicant becomes an asylee, and is on his or her road to green card status.

If the case is judged to be inadequate, and the applicant is in illegal status, he or she is referred to the immigration courts with a recommendation that deportation be ordered. In other cases where the failed applicant is still in legal status (such as being a student on an F-1 visa) he or she is told to leave the country at the expiration of the nonimmigrant status.

The defensive path starts when an illegal alien is apprehended by ICE and put into the Immigration Courts for the deportation process. At this point the alien argues that deportation is not appropriate because the alien qualifies for asylum. That argument is then thrashed out in an adversary setting with a government lawyer on one side of the issue, and often, but not always, a private attorney for the alien. (Rejected affirmative applicants go through the same process.) About half the time the government wins, and about half the time the alien does, as I mentioned in an earlier blog about the TRAC report.

The TRAC data, in a backwards sort of way, indicates the extent to which the asylum system, at the Immigration Court level, is used by illegal aliens to thwart or at least postpone deportation rulings.

There are small numbers of persons from the U.K. and Canada, for instance, who seek asylum status in an effort to avoid deportation; these are usually rejected. There are larger numbers of others from relatively peaceful countries, Jamaica and Guyana, for instance, who try to make the same argument. They are unlikely to do themselves much good, but they are highly likely to clutter up an already over-crowded court system with their frivolous claims.

While Immigration Judges have remarkably different individual batting averages, as noted in the earlier blog, they pretty much agree with each other about the validity of the asylum applications filed by people from the following nations:

Data are from the TRAC study; the nations listed had at least 50 cases decided by the judges in those years. (Only the nations at the extremes of the denial-rate spectrum are shown.)

The sad irony is that the U.S. government, after spending billions of dollars and thousands of lives to make life better in Iraq, has done so little good there, in the eyes of its own Immigration Judges, that when it comes to arguing that one is persecuted in one's own country, those from Iraq are the ones most likely to win.