In a Friday post captioned "Trump vs. Biden Debate: Credible Fear No-Shows: Neither was correct, but statistics show credible fear process results in catch-and-release", I analyzed a chart detailing the outcomes of asylum cases in which aliens had claimed credible fear. It shows that over a 12-year period, of 100 aliens who claimed credible fear, 83 would be referred to apply for asylum, but 38 of them would fail to follow through and actually apply. Of the 38 who did not apply for asylum, 23 were ordered removed in absentia. So, what happened to the other 15?
The question was raised by a reader, and it is a good one, which deserves some explanation. It also, however, raises three important points.
Summary of the EOIR Chart
The chart was prepared by the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts, and the cases are those in which the immigration judge (IJ) reached an outcome.
To summarize, 83 percent of aliens from FY 2008 to FY 2009 claiming credible fear were found to meet that standard and were referred to an IJ to apply for asylum, statutory withholding, or protection under the Convention Against Torture (CAT). An asylum officer (AO) at U.S. Citizenship and Immigration Services (USCIS) makes the credible fear decision, but only an IJ can grant asylum or other protection in those cases.
Some 45 percent of the aliens who claimed credible fear (or 54 percent of those referred) actually filed an asylum application. At the end, 14 of those who claimed credible fear (or just less than 17 percent of those referred) applied and were granted asylum.
That leaves 38 percent of the total who were referred but who did not actually apply for asylum. Of that 38 percent, 23 percent (or just less than 28 percent of those referred) were removed in absentia (as were 4 percent of the total, or about 5 percent of those referred, who did apply for asylum — an alien must show up for all hearings or be ordered removed).
That means that 15 percent of those referred (or 18 percent of the total) never applied for asylum, but were not ordered removed in absentia. To figure out what happened to them, we need to go to a separate EOIR chart, captioned "Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim". It covers the period FY 2008 through the third quarter of FY 2020. But first, a brief detour.
Implications of the Comparably Low Grant Rate in Credible Fear Cases
The grant rate on that chart shows significant disparities in outcomes in cases originating with credible fear claims over time. In FY 2010, for example, IJs granted asylum to 37.65 percent of aliens found by AOs to have credible fear. That number dropped to 12.03 percent in FY 2016 (a 13-year low), but has never reached 17 percent since FY 2013.
Before I discuss the missing 15, I want to make a point about that low grant rate, by reference to a third EOIR chart of total "Asylum Decision Rates". That shows that the IJ grant rate for asylum, in total, has been in the low 20-percent range (with variations) since FY 2013. In other words, the grant rate for credible fear cases over the past eight years has actually been lower than the total grant rate.
That would appear to be counter-intuitive, because aliens in credible fear have actually been screened before they appear before an IJ — the credible-fear screening they had to pass in order for apply for asylum with an IJ.
There is no screen any other alien applying for defensive asylum from an IJ has to pass in order to apply for asylum and, in fact, aliens who were referred to immigration court by USCIS after applying with an AO for affirmative asylum were (in essence) denied asylum by USCIS (AOs can grant asylum in those cases). The total grant rate should be lower — but it's not. In fact, the lower grant rate for aliens who have passed the credible fear screen likely brought down the total asylum grant rate.
That proves a point that I have made before: The credible fear screen is too low, and encourages foreign nationals to enter the United States illegally. A separate statistic underscores this point.
USCIS has published a "Credible Fear Workload Report Summary", which runs from FY 2009 through FY 2016. It shows that the number of credible fear cases completed by AOs annually (which had always been around 5,000 before FY 2009) jumped exponentially throughout that eight-year period, going from 5,523 in FY 2009; to 8,926 in FY 2010; 11,716 in FY 2011; 12,056 in FY 2012; and then almost tripling to 33,283 in FY 2013.
In FY 2014 — a year in which there was an influx in unaccompanied alien children (UAC) and aliens travelling with children (family units or "FMU") prompting a "migrant crisis" — AO completions of credible fear claims jumped to 49,607. That number tailed off (slightly) in FY 2015 (47,928) and FY 2016 (46,519). Still, there was a 742 percent increase between FY 2009 and FY 2016.
It got worse from there, with the AO credible-fear completion rate increasing to 79,710 in FY 2017 and 97,728 in FY 2018. It reached an astounding 102,204 in FY 2019 (when receipts were 105,439, as AOs were overwhelmed and could not get to them all). That year saw a humanitarian and national security disaster at the Southwest border that dwarfed FY 2014, with massive numbers of FMU and UAC entering illegally (473,682 FMU and 76,020 UAC apprehensions by the Border Patrol along the Southwest border — 64.5 percent of total apprehensions).
Thus, between FY 2009 and FY 2019, there was a 1,750 percent increase in AO credible fear case completions, despite the fact that IJs denied the vast majority of the subsequent asylum claims. The easiest (and most likely) explanation for this increase is that migrants — and more importantly smugglers — realized that credible fear was a loophole that could be exploited to move foreign nationals into the United States.
The Missing 15
Back to the missing 15, however. In FY 2013, the asylum denial rate for credible fear cases of 17.04 percent was just less than the 16.48 percent grant rate. That left just fewer than 67 percent of all of those asylum cases. Where did they go?
Some (7.07 percent) were abandoned, not adjudicated, "other", or withdrawn (all described as "Other" by EOIR). That likely included some of the in absentia orders included in the EOIR chart in which aliens applied for asylum but subsequently failed to appear.
But not all, as the "Other" rate over the period FY 2008 to FY 2019 has consistently been higher than the 5 percent of aliens who filed for asylum after a positive credible fear determination and subsequently failed to appear during that period, and in fact was much higher in FY 2018 (13.94 percent). My best explanation is that the bulk were detained cases in which the alien simply took an order of removal — proving that detention works in ferreting out bad claims.
A few in FY 2013 (2.78 percent) were administratively closed, a judicial tool used to take a case off of the docket, generally for the alien to await a decision on a separate immigration petition with USCIS — or simply because the case is not a priority for DHS or the court.
The bulk (56.64 percent), however, had filed no asylum application at all. They either failed to appear and were ordered removed in absentia, or had applied for some other immigration benefit. Of course, the immigration benefits they were referred to apply for were asylum, statutory withholding, or CAT, which they likely never intended to apply for at all. DHS and DOJ have proposed to close that loophole by sending credible fear applicants to asylum-and-withholding-only proceedings.
How could in absentia orders also be included in that category as well, though? Remember that the original EOIR chart that I referenced included cases in which an alien filed an asylum application but subsequently failed to appear, and they would have all been captured under "Other". But that does not mean that some of the 15 would not be in both — it is all how the IJ characterized the decision.
That "no-filing" rate dropped slightly to 54.22 percent in FY 2014, and has remained around the low-40 percent range ever since — an unacceptable number by any standard, given again, these are all aliens referred by AOs to IJs to apply for asylum, but who have failed (at least thus far) to do so.
I would like to say that is the end of the bad news, but it's not. The administrative closure rate increased to 14.41 percent in FY 2015, and then to 18 percent in FY 2016, as the Obama administration ordered ICE (including the attorneys who represent the government in immigration court), to "prioritize" cases for apprehension, detention, and removal. That "prioritization" usually resulted in administrative closure or termination.
Many of those administrative closures were likely earlier cases in which the alien applied for DACA or Special Immigrant Juvenile Status (another big loophole), but many were simply administratively closed because the government was told not prosecute them (aliens are not going to agree to an administrative closure — which offers no immigration benefits — if they believe they have a winning asylum claim). If you want to know more about that fiasco, you can read the Backgrounder I wrote on the immigration court backlog in July 2017.
Then-Attorney General Jeff Sessions ended administrative closure in May 2018 (although our newest justice — Amy Coney Barrett — and two of her then-colleagues continued it, at least in the Seventh Circuit, in January 2019, as did the Fourth Circuit in August 2019), and administrative closure has tailed off since FY 2017 (it was .03 percent in FY 2019).
And the denial rate increased to 20.27 percent in FY 2014, dropping slightly in the next two fiscal years (19.48 percent in FY 2015 and 18.21 percent in FY 2016), before jumping to almost 32 percent in FY 2019.
No-filings, however, remain the largest category of IJ decisions in cases beginning with credible fear, (41.53 percent in FY 2019, with an average of 43.05 percent over the 12-year period). I will break those cases into two categories: the good and the bad.
The Good and the Bad
First, the bad. Many of those cases (particularly prior to the Trump administration) were likely simply terminated, as my colleague Jessica Vaughan reported had occurred with respect to 37 percent of UACs apprehended in the FY 2014 surge.
The Obama priorities, which were enshrined in a November 2014 memorandum from then-DHS Secretary Jeh Johnson, listed "aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States" as "Priority 1" cases, which meant that they were supposed to be prosecuted to completion. That was likely purely prospective, however, as "aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States" who had been here since January 1, 2014 fell into a separate (lower) category, "Priority 2" cases.
Aliens apprehended before that date were not a priority, so if aliens were apprehended at the border, found to have a credible fear, and released, many of their cases were likely terminated prior to the Trump administration (which has replaced the old prioritization policy). Those cases likely make up a significant number of the aliens who appear on the original EOIR chart (but not all, as I will explain).
Another "bad" is the fact that many of those no-filings are cases in which the alien has not yet filed an asylum application with EOIR. Included in that number are UACs who are in the process of having their asylum applications adjudicated by AOs (which is an exception that was explicitly provided for them in the 2008 Trafficking Victims Protection Reauthorization Act).
They are not alone, however. There is a huge backlog of cases in the immigration courts (of which about 43.5 percent are asylum cases), and so it can take anywhere from six months to several years for asylum claims to be heard.
For those not familiar with immigration court, the alien respondent appears at a first master calendar hearing, which is similar to a criminal arraignment. The charges are read and explained, and the respondent can plead, or get a continuance for counsel (assuming the respondent does not have one) before doing so.
That leads to a separate master calendar hearing (which can be held months later), and perhaps several more before an asylum application is actually filed. In a June 2017 report, the Government Accountability Office (GAO) found, after reviewing 3.7 million continuance records from FY 2006 through FY 2015, that continuances increased by 23 percent from FY 2006 to FY 2015 with "the percentage of completed cases which had multiple continuances" also increasing during that period.
Most critically, the cases in which the largest number of continuances that GAO identified were issued, those with "four or more continuances" (as an INS attorney, I handled one that was continued more than 20 times), increased from 9 percent of cases completed in FY 2006 to 20 percent of cases completed in FY 2015.
Those continuances made an impact, as GAO found: "[C]ases that were completed in [FY] 2015 and had no continuances took an average of 175 days to complete. In contrast, cases with four or more continuances took an average of 929 days to complete" that year. That has only gotten worse. The average time that it takes to complete a case in immigration court is now 811 days, and in Denver, that stretches to 1,130 days.
If a respondent has a weak claim, he or she is in no hurry to speed that process by filing an asylum application in short order. That has likely boosted the number of no-files in credible fear cases.
Note, however, that those pending no-files are not included in the original EOIR chart (which only counted completed cases, not pending ones).
Second, though, the good. At least some part of those completed cases that commenced with credible fear and in which no application was filed involved aliens who were detained, and who decided to take an order of removal instead of waiting in custody for an asylum hearing. The average length of a removal proceeding in my old court, the York Immigration Court, is 77 days. That is not so long to wait if you have a good claim, but a long time to wait if you have a weak one.
Why do I break them down into "bad" and "good"? Lengthy continuances are bad for our system of justice, and bad for aliens who have valid, grantable claims and who should be allowed to get on with their lives (and potentially petition for their family members, who may also be in danger). Aliens in detention with weak or fraudulent cases are bad for that system as well, and their removal clears the way for those good cases.
So, what happened to those missing 15? Some have had their cases terminated and are likely still in the United States. Some, however, seeing no likelihood of relief, and wanting to leave detention, simply took orders. Some have been granted DACA or some other form of immigration relief, despite the fact that they came to the United States under the guise of seeking asylum.
There are likely still other reasons, and without reviewing all the cases, I cannot even offer a guess. That said, however, my review in response to the question was worth the effort, because it suggests that three things are true: (1) Credible fear is a loophole that is exploited by foreign nationals seeking to enter the United States. (2) Detention works in flushing out bad claims. (3) Until that loophole is closed, the backlogs in the immigration courts are just going to get worse.