The Transactional Records Access Clearinghouse (TRAC) at Syracuse University released a report late last year captioned "Asylum Decisions and Denials Jump in 2018". The lede tells much of the story:
Fiscal year 2018 broke records for the number of decisions (42,224) by immigration judges granting or denying asylum. 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.
Every asylum case rises or falls on its own merits, so I cannot tell you dispositively the reasons for these trends. I can, however, posit some guesses for the reasons behind these increases, including: Obama-era restrictions being removed from attorneys at U.S. Immigration and Customs Enforcement (ICE), who represent the United States in immigration court; a focus by the Department of Justice (DOJ) on removal case completions; and a series of decisions issued by the attorney general that clarified the standards for granting asylum.
As for the restrictions on ICE attorneys, I noted in a November 2017 post discussing an earlier TRAC report:
As the then-Acting Principal Legal Advisor for [ICE] Riah Ramlogan stated in an April 6, 2015, memorandum captioned "Guidance Regarding Cases Pending Before EOIR Impacted by Secretary Johnson's Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented immigrants":
Consistent with the current practice, DHS's enforcement priorities will continue to be national security, public safety, and border security. DHS personnel, including OPLA attorneys, are directed to prioritize removal assets accordingly. OPLA attorneys should continue to review their cases, at the earliest opportunity, for the potential exercise of prosecutorial discretion, in light of the enforcement priorities. OPLA should generally seek administrative closure or dismissal of cases it determines are not priorities. OPLA attorneys should also review available information in incoming cases to determine whether, in a case that falls within an enforcement priority, unique factors and circumstances are present that may warrant the exercise of prosecutorial discretion. Understanding that these factors and circumstances may change as the case progresses, if further prosecutorial discretion review is requested by the respondent, the case should be reviewed again in light of any changed facts and circumstances. Keep in mind that prosecutorial discretion may encompass actions beyond offers for administrative closure or dismissal of the case, including waiving appeal, not filing Notices to Appear, and joining in motions. [Emphasis added.]
Respectfully, as a long-time government employee and lawyer, a good-government lawyer does not need to be told twice where the agency's priorities lie. Reading between the lines, low-priority cases were not be contested that vigorously, and this would include asylum cases. If it is a borderline asylum case, and you're encouraged to waive appeal, it is only natural that you would not contest it as vigorously as you might otherwise. Dockets are busy, and there are always other cases — better to focus your attention on those, rather than spend extra time in court in a futile effort.
As for appeals, I was told anecdotally when I was an immigration judge (IJ) that ICE headquarters was stingy in agreeing to allow line ICE trial attorneys to appeal decisions. If you're encouraged not file appeals, and there's a possibility that your appeal will be rejected any case, why bother?
None of this is to call the ethics of any ICE attorney into question, or even to question the ethics of the ICE lawyer corps as a whole. Lawyers represent clients, and generally litigate those cases consistent with the will and interests of those clients. That is the essence of good lawyering.
Those restrictions, to the best of my knowledge, are now gone. ICE lawyers are encouraged by the current administration to vigorously litigate cases, within the bounds of ethical conduct. After a tough loss, you will often hear a coach explain, "The other team is trying, too." Well, now ICE is trying, too, to oppose non-meritorious asylum claims.
As an aside, I am often asked about the discrepancies in grant rates between immigration cases in which the respondent is represented, as opposed to those in which the respondent is not represented. I am often befuddled by the question. Lawyers aren't cheap (and some can be quite expensive), so if hiring one didn't make a difference in your case, why would you hire one? If I could fix my own pipes, I would not pay my plumber (who charges $175 an hour, plus expenses) to do it. He is the best, however, and I can't, and therefore he is worth every penny.
With respect to the availability of counsel, however, TRAC noted, interestingly:
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. ... [D]uring the four previous years from FY 2014 through FY 2017, representation rates had been below average as the number of asylum cases rose.
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.
So perhaps the presence of a lawyer in an asylum case does not make that much of a difference in determining whether an asylum applicant will be granted relief, after all. Only time will tell.
As a second aside, I'm also asked about the discrepancy in grant rates between various IJs. Again, the question is somewhat confusing. Various theories have been offered by various "experts", including biases on the part of those IJs who grant, or deny, at a greater rate than the mean. I have the highest respect for my former colleagues, however, and have argued thousands of cases in immigration court, so I think that this is an issue on which my opinion is better than most. It is important to note that IJs are the adjudicators of law and fact: There are no juries in immigration court. Individuals make credibility determinations on a daily basis, and often those determinations differ, even given the same set of facts, and IJs are no different.
And IJs can have disagreements about the application of those facts to the law. I had a collegial relationship with the other IJs in the court in which I served (the York, Pa., Immigration Court), and would often bounce legal questions off of them. I would also turn to IJs in other courts who I knew and trusted for their opinions. At the end of the day, however, the decision was mine, as law and ethics require. Many times my response was: "I respectfully disagree." No hard feelings.
Lest you be concerned that immigration courts are some sort of Star Chambers, every respondent has a right of appeal to the Board of Immigration Appeals (BIA), and can file a petition for review with the circuit courts. Many did. Sometimes the BIA or circuit held that I was wrong, but almost always I was right: Like an umpire, I was just calling balls and strikes. I don't lack for ego, but the same was true of most of my colleagues.
What I find truly astounding, however, is that we accept it as expected on the Supreme Court that, say, Justice Ginsburg may well (and often does) issue a different decision then Justice Alito. Who's right? The one in the majority on the decision. As the great Justice Robert Jackson stated of the Court: "We are not final because we are infallible, but we are infallible only because we are final." Respectfully, immigration court is no different.
Back to the TRAC report. Again, it found that: "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." There are a number of reasons that I can put forth that would explain this increase.
As I noted in a separate November 2017 post:
The Washington Post reported last week that the Department of Justice (DOJ) "is aiming to slash the massive immigration court backlog in half by 2020 by adding judges, upgrading technology and refusing to tolerate repeated delays in deportation cases."
Specifically, DOJ "said it plans to hire new immigration judges, use technology such as videoconferencing, and increase judges' productivity by setting case-completion guidelines" as well as introduce "a 'no dark courtrooms' policy", which would place retired immigration judges in courtrooms that are vacant because their usual occupants are on "alternative work schedules" (AWS).
DOJ did each of these things, and not surprisingly, they were apparently successful. I've written extensively about the increase in IJs under AG Jeff Sessions. I will not belabor the point here, except to note again that as of August 14, 2017, there were 334 IJs in our country's then-58 immigration courts, while as of November 2018, according to the Executive Office for Immigration Review (EOIR, the DOJ component responsible for the immigration courts) there were "approximately 400 immigration judges located in 62 immigration courts throughout the Nation." Given the increase in resources, I would hope that there would be more decisions issued. The only real question is why prior administrations left this key agency so tragically underfunded.
Further, in January 2018, EOIR issued new "Case Priorities and Immigration Court Performance Measures". As the memorandum announcing that initiative stated:
[T]o address concerns and confusion, it is appropriate to clarify EOIR's priorities and goals to ensure that the adjudication of cases serves the national interest consistent with the principles outlined by the Attorney General.
All cases involving individuals in detention or custody, regardless of the custodian, are priorities for completion. Likewise, cases subject to a statutory or regulatory deadline, cases subject to a federal court-ordered deadline, and cases otherwise subject to an established benchmark for completion ... are also priorities. As developments warrant, other priority designations may be established as appropriate, and other categories of cases may be tracked regardless of whether they reflect a priority designation.
The designation of a category of cases as priority is an indication of an expectation that such cases should be completed expeditiously and without undue delay consistent with due process. Because the designations outlined in this memorandum apply prospectively, it is not intended to require the rescheduling of currently-docketed cases. The designation of priority cases is also not intended to diminish or reduce the significance of other cases. Indeed, the timely completion of all cases consistent with due process remains a matter of the utmost importance for the agency. Finally, the designation of a case as a priority is not intended to limit the discretion afforded an immigration judge under applicable law, nor is it intended to mandate a specific outcome in any particular case.
An appendix to that memorandum established "Immigration Court Performance Metrics", which included the following:
1. Eighty-five percent (85%) of all non-status detained removal cases should be completed within 60 days of filing of the Notice to Appear (NTA), reopening or recalendaring of the case, remand from the Board of Immigration Appeals (BIA), or notification of detention.
2. Eighty-five percent (85%) of all non-status non-detained removal cases should be completed within 365 days (1 year) of filing of the NTA, reopening or recalendaring of the case, remand from the BIA, or notification of release from custody.
5. Ninety-five percent (95%) of all hearings should be completed on the initial scheduled individual merits hearing date.
7. One hundred percent (100%) of all expedited asylum cases should be completed within the statutory deadline and consistent with established EOIR policy. See INA 208(d)(5)(A)(iii); OPPM 13-02.
Thereafter, as CNN reported in April 2018, DOJ "announced it will evaluate immigration judges on how many cases they close and how fast they hear cases." The EOIR "Performance Plan" for adjudicatory employees, a portion of which was released by the network, included "Performance Goals". Specifically, in order to obtain a "satisfactory performance" rating, IJs were expected to complete 700 cases per year, with a rate of cases being remanded by the BIA of 15 percent.
Not surprisingly, critics of that plan (including the National Association of Immigration Judges (NAIJ), the IJs' union) castigated those proposals. For example, CNN quoted NAIJ President Ashley Tabaddor, who had previously stated in January 2018:
"NAIJ is working diligently to fight the implementation of any 'numeric based performance measures' on judges, and ensure that any future standards that may be imposed on judges or the Immigration Courts are legally defensible, fair, and would not encroach on our independent decision making authority."
That said, these actions by DOJ and EOIR likely spurred the IJ corps to complete its cases, including asylum cases, in a timelier manner.
In addition, familiarity with more recent asylum claims likely both shortened the time it took IJs to issue decisions on those claims, and therefore increased both the number of decisions and denials. As TRAC reported:
This increase [in denials and completions] 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.
As an aside, one would expect that hiring a professional to do a job would actually make that job go more quickly, but that is not always the case in immigration court. This is true for several reasons, some positive (the lawyer taking additional time to assemble evidence and documents), some negative (extending period of presence in the United States of an otherwise removable alien).
Back to my main point, however. Many of the cases that were completed in 2018 likely began in 2014, and involved asylum claims made by parents who brought their children with them (family units), and unaccompanied alien children (UAC) themselves. The majority of those individuals came from the so-called "Northern Triangle" countries of El Salvador, Honduras, and Guatemala. Speaking broadly, many of those cases were based upon criminal violence and gang recruitment.
Although the immigration courts have handled criminal-based and recruitment asylum claims for years, many of these new cases likely presented very unique facts, or unusual twists that may have distinguished them from prevailing case law. In addition, many IJs may not have been familiar with the country conditions in those Northern Triangle countries. As those judges heard more of those claims (many of which share similar fact patterns), the ability of those IJs to hear those cases in a timely manner, and to distinguish those cases from fact patterns on which the BIA, AG, and federal courts had already ruled positively, probably increased. Therefore, more cases could be decided more quickly, with more denials.
Finally, decisions issued by AG Sessions on continuances in immigration court and on the standards for granting asylum based on criminal-based claims almost definitely had an effect both on the number of cases completed, and on asylum denials. Those decisions contained bright-line rules for IJs to follow in immigration court.
Proving this point as related to asylum denials, the TRAC report contained a graph of such denials as a percentage of cases, beginning in September 2014 and continuing to September 2018. TRAC noted:
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.
The first part of that analysis bears comment, as well. As the New York Sun noted a few years back:
It was the fictional comic character Mr. Dooley, created by the Chicago columnist Peter Finley Dunne, who uttered the now immortal line "No matther whether th' constitution follows h' flag or not, th' Supreme Coort follows th' election returns." He reckoned that it was always thus and would always be.
It is difficult to argue with Mr. Dooley (or Mr. Dunne) on this point. It should not come as a surprise that a similar dynamic would apply in immigration court. This is not to question the ethics or independence of IJs; rather, it is simple common sense. IJs are lawyers within DOJ by regulation, and should be expected to follow the lead of their bosses. Given the leniency with which the Obama administration treated those illegally present in the United States, it would not be unexpected that with a change in administration to a president who followed a harder line on that issue, some or most of those IJs would follow suit.
Further, as noted, ICE policy as it related to the adjudication of removal cases actually did change, and quickly. Again, as attorneys are allowed to more vigorously litigate cases in immigration court, they will likely receive a more positive outcome (from their perspective), particularly in close cases.
Again, the actual reasons behind the increase in asylum denials is not clear from the TRAC report. But increased resources, efforts by DOJ to speed removal cases, and a shift in focus from the prior administration to the present one likely had a significant effect.