In completing a recent post, I referenced the "Statistics and Reports" page on the website of the Executive Office for Immigration Review (EOIR), the Department of Justice component with jurisdiction over the immigration courts and Board of Immigration Appeals (BIA). The "Workload and Adjudication Statistics" page is particularly helpful, but could use a little more explanation.
Why is that specific page helpful? It provides charts containing information, often with historical context and easy-to-use graphs, on cases pending and completed by the immigration courts and the BIA. For example, the "Pending Cases" page provides both numbers and a graph showing the number of cases (removal, deportation, exclusion, asylum-only, and withholding-only) that were pending with the immigration courts at the end of each fiscal year (FY), from FY 2008 (186,099) to FY 2019 (987,274), accompanied by a graph showing the steady upward trajectory of pending cases.
That page reveals how the backlog at the immigration courts has increased, year over year, and provides a basis for analysis as to why the number of cases has increased. This is extremely helpful, particularly in conjunction with other statistics from other agencies, in understanding how the immigration system as a whole has gotten to the point that it is right now.
The "administratively closed" cases chart reveals how the now-invalidated procedure of "administrative closure" was used as a tool to sweep cases under the rug by removing them from the immigration courts' and BIA's dockets. Specifically, it reveals that the number of "inactive pending cases" increased by fewer than 6,500 between FY 2008 (171,798) and FY 2011 (178,227), before really gaining steam in FY 2012 (192,160) through FY 2017 (339,441), an almost 47.5 percent increase (161,214 cases) in just six years.
This suggests that, once administratively closed, few cases were recalendared, or (viewed more sinisterly) that once IJs started using the procedure, it became a convenient way to clear dockets (likely a combination of the two). And it provides significant justification for then-Attorney General (AG) Jeff Sessions' discontinuance of administrative closure.
The FY 2019 decision outcomes chart provides a snapshot, but an extremely useful one, of the results of immigration cases before the immigration courts in that fiscal year. It shows that in FY 2019, there were 260,378 initial decisions in removal, deportation, and exclusion cases. Of that number, removal was ordered in 181,139 cases (69.5 percent of the total), while relief was granted in 30,479 (11.7 percent); there were 26,592 grants of the privilege of voluntary departure (10.2 percent), 21,270 cases were "terminated" (less than 8.2 percent), and 448 were "other" (0.17 percent).
Totaling the removal and voluntary departure numbers reveals that aliens in almost 80 percent of initial removal, exclusion, and deportation cases were removable and were not eligible for relief that would allow them to remain in the United States.
That chart also shows some of the shortcomings of the "Workload and Adjudication Statistics" link. Why exactly were cases "terminated"? That chart does not explain, but the EOIR Statistics Yearbook for FY 2018 states: "If an immigration judge determines that the alien is not removable, then the immigration judge will terminate proceedings." Are those the only terminations that are counted, or does the "FY 2019 Decision Outcomes" page include cases involving aliens who were removable, but who were granted status by U.S. Citizenship and Immigration Services (USCIS) while proceedings were ongoing, as well? If aliens who were not actually amenable to removal were the only ones who were counted, more than 8 percent is a lot of respondents who were erroneously charged with removability. And I have no idea what "other" is.
There are similar problems with the otherwise helpful chart captioned "Rates of Asylum Filings in Cases Originating with a Credible Fear Claim" for FY 2008 to FY 2018. It shows that 354,356 removal, deportation, and exclusion cases were referred to the immigration courts following a credible fear claim in those 11 years, but that there were only 189,127 "Cases Referred Following a Credible Fear Claim and a Filed Asylum Application", 53.4 percent. I assume that this chart indicates that just over half of aliens who passed credible fear in those 11 years and were referred to immigration court actually filed asylum applications, but honestly I am not sure.
If my assumption is correct, that would suggest that a massive number of aliens are claiming credible fear simply to gain entry into the United States to live and work (that is, that they are really "economic migrants" and not actually seeking refuge), reinforcing an argument that others and myself have made. Of course, there is a lag time between most credible fear referrals and the filing of asylum applications (which was extremely short in my detained immigration court — respondents did not generally want to remain detained), so likely a small percentage fewer than 46.6 percent of aliens who passed credible fear never filed asylum claims, if this interpretation is correct.
But I am not entirely certain that this interpretation is correct, because I am not entirely sure what "Cases Referred Following a Credible Fear Claim and a Filed Asylum Application" means. Does it mean "Cases Referred Following a Credible Fear Claim Who Subsequently Filed an Asylum Application" or "Cases Referred Following a Credible Fear Claim Who Showed Up for the Initial Master Calendar Hearing with a Filed Asylum Application"? Probably the latter (otherwise the percentage on the chart is worthless), but the chart could be clearer.
The statistics on that page are clarified to some degree by the "Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim" page, but that page has its own issues. As the title suggests, it tracks the decision rates in cases that started with credible fear, between FY 2008 and FY 2019.
That chart reflects the effect that the massive increase in credible fear claims in the past decade or so has had on the immigration courts' dockets. While there were 3,163 IJ decisions in cases that originated with a credible fear claim in FY 2008, that number had increased 1,753 percent by FY 2019, when IJs issued 55,459 decisions in cases that had started with credible fear.
It also shows that the percentage of denials of asylum claims had increased in those 12 years, going from 25.61 percent in FY 2008 to 31.77 percent in FY 2019 (the highest denial rate in the 12-year survey), and in fact the denial rate increased significantly in the last three fiscal years, suggesting that the latest migrants who claimed credible fear had weaker claims than earlier entrants. Interestingly, however, the FY 2019 grant rate (15.25 percent) was higher than the rate in FY 2014 (12.81 percent), FY 2015 (13.71 percent), FY 2016 (11.99 percent — the lowest grant rate in the 12 years), and FY 2017 (13.89 percent).
Also interesting is the fact that the number of credible fear cases in which no asylum application was filed (again, logically one of the points of the "Rates of Asylum Filings in Cases Originating with a Credible Fear Claim" chart) has varied significantly over the years. Given the fact that the sole reason for referral of a credible fear case is for the claimant to apply for asylum in removal proceedings, this number reflects the number of migrants who claimed credible fear, but who actually had no intention to seek asylum, indicating that they were actually economic migrants — not foreign nationals seeking refuge.
The 41.76 percent non-filing rate in FY 2019 is actually much lower than FY 2011 (46.32 percent), FY 2012 (51.87 percent), FY 2013 (56.47 percent — the 12-year high), and FY 2014 (54.21 percent). That suggests that a variety of factors were in play over the time period covered, including the fact that by FY 2011, both smugglers and migrants had identified credible fear as a loophole that could be exploited to allow those migrants to live and work in the United States, and that more aliens were detained in FY 2019 following positive credible fear determinations to seek asylum (they would have to file asylum applications, or be summarily removed).
By way of comparison, DHS statistics show that the number of aliens apprehended by the Border Patrol actually dropped significantly between FY 2009 (869,828) and FY 2013 (420,789), before increasing in FY 2014 (486,651), and then levelling off again in FY 2015 (337,117), only to jump to 415,816 in FY 2016. Again, this suggests that the figures in EOIR's "Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim" chart, which show a significant increase in the number of removal cases in immigration court that commenced following a positive credible fear determination beginning in FY 2011 (reaching a peak in the latest FY 2019 numbers) reflect the fact that smugglers and migrants had begun in FY 2011 to understand that credible fear was a loophole to be exploited to gain entry into the United States.
One other glaring statistic in that chart is the number of administrative closures during that 12-year period. Given the fact that credible fear cases are referred by USCIS asylum officers to the immigration court to give those migrants involved the opportunity to apply for asylum, few if any of these cases should have been subject to administrative closure, which is a procedure that was usually employed to allow aliens to pursue other applications for relief (like immigrant visa petitions) from another agency (usually U.S. Citizenship and Immigration Services).
The numbers for FY 2008 through FY 2011 reflect this, as 63, 53, 89, and 67 cases referred after credible fear were administratively closed each of those years, respectively. Those numbers jumped significantly, however, from 176 in FY 2012 to a peak at 3,683 in FY 2016 — a 584 percent increase. There is no reason for such a large number of administrative closures in cases referred following credible fear (I seriously doubt that 3,683 aliens were referred by IJs for psychiatric examinations), and this increase likely reflects abuse of the administrative closure option during the Obama administration. It also justifies AG Sessions' decision to discontinue the practice.
The puzzling statistic on this otherwise very useful chart is the "Other" category. That number went from a low of 219 in FY 2010 to a high in FY 2019 of 6,203 — a 2,800 percent increase. That chart explains: "Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn." This would make sense if the respondents involved were ordered deported after abandoning or withdrawing previously filed asylum applications (which is logically the decision that would have been issued), but it does not explain why cases were not "adjudicated", and begs the question with respect to the cases that are simply "other".
There are plenty of other useful charts on the EOIR "Workload and Adjudication Statistics" page, and the information provided is easier to use and more helpful than similar statistics that the component has provided in the past. While some may argue that certain of the charts are tendentious, they are also indicative of a transparency that should be applauded. In a few instances, however, a little more clarity and some more thorough definitions of the terms used therein would help EOIR in its efforts to provide these facts to the public.