A Rave Review for a Justice Dept. Report on Immigration Decisions

By David North on March 4, 2010

We at CIS are often highly critical of the government, but a Justice Department publication just appeared that is worthy of high praise.

The praise is for the publication itself, the FY 2009 Statistical Year Book of the Executive Office for Immigration Review (EOIR), not necessarily for the program being discussed. The 129-page report is online as a pdf here.

The report deals with two administrative appeals agencies central to the implementation of immigration policy; EOIR has the nationwide set of several hundred immigration judges, who handle about a third of a million deportation (now called removal) and other cases each year. EOIR also houses the Board of Immigration Appeals, an entity that handles appeals from the immigration judges and from some USCIS decisions.

EOIR is a large, busy operation and is to be commended for the thoroughness, if not the liveliness, of the reporting of its own activities. These are important, because if an alien loses an appeal at the Immigration Judge or BIA level that usually is the end of the matter; at that point he either leaves the country or falls into illegal status. Similarly, an alien's victory before an EOIR entity is likely to be final, too.

Only a handful of cases (compared to the one-third of a million) wind up in the regular federal courts, which is the next level of appeal. During the fiscal year the immigration judges were sent 391,829 cases, and completed 352,233 cases. Meanwhile, at the BIA level, there were 32,859 receipts and 33,103 completions.

What is commendable about the report is the fact that it not only talks about volume of business, and the size of the backlogs (it was 27,639 at the BIA level) but it also reports what happens to the cases. It sorts out the results by interesting variables like country of origin (Mexico, Guatemala, El Salvador, Honduras, and China lead the list) and the nature of the claim.

In FY 2009 79.8 percent of the cases before immigration judges led to a decision to remove the alien, though some unknown number among those to be removed were granted voluntary departure, meaning that they were on their honor to leave. The percentage to be removed has dropped a few points in recent years.

While the number of removals (which includes both the old concepts of deportation and denial of entry) has dropped a bit, the number of grants of asylum has crept up a bit, with the grant rate moving from 38 percent in FY 2005 to 47 percent in 2009.

The removal business, however, is a much busier one than the asylum business; in FY 2009 there were 185,314 judge-ordered removals and only 10,186 asylum grants.

The report is commendable in two other ways, as well. It has a splendid, easily understood, 19-page glossary of terms; one can learn, for instance, about the difference between the "credible fear" concept used in asylum cases, and a "reasonable fear of persecution" in the home country, used in removal cases. If you have a valid claim for either, you stay in the U.S.

At the very end it has a long-long printout showing the disposition of asylum cases by nation. Needless to say, the number and percentage of grants is high for heavily-populated nations with authoritarian governments (e.g., China, with 3,418 grants in 2009) and low in the democracies (one from Germany and five from the UK in 2009). Were I making the decision to publish such a list I think I would make it available if you went to the head office in Falls Church, Va., but would not put it on the web.

I would do that to discourage people (like me) from noticing, for instance, that in 2009 the Immigration Judges gave political asylum to one person, and in 2008 to 11 people from the delightful, if poor and isolated, South Pacific island of Niue, whose colonial power is New Zealand. I regard New Zealand as one of the most beneficent of nations, but then I may be biased. Decades ago I dated a delightful young woman who was on the staff of New Zealand's Office of Island Territories.

Back to the judges – why grant asylum to someone from a place like that?

EOIR has decided, however, to publish these nation-of-origin lists, and I commend them for it.

The EOIR data system is so detailed, and so open that the Transactional Records Access Clearinghouse (TRAC) at Syracuse University (which collects federal government data) has created a system whereby you can look up a specific immigration judge, or a specific immigration court, and find out the asylum grant rate for the judge in question (assuming the judge has handled a substantial number of cases) or for the court in question. The site presumably is used by the immigration bar for its highly useful information to an asylum applicant deciding where to file his or her applications. (Only some asylum applicants have that choice.)

According to TRAC's report on the judges, the asylum denial rate for the surveyed judges varied from "a low of 10% to a high of 98%." The average denial rate for the studied judges was about 65 percent. Part of that relates to the nations-of-origin mix among the applications filed where the judge is working, but only part of it. (TRAC percentages and those of EOIR differ, presumably because of different definitions and different time periods used.)

While the EOIR document does not have that kind of judge-by-judge information, and has very little real analysis, it does have lots of tabulations of the disposition of various kinds of cases.

If, on the other hand, if you want statistics on how the Department of Labor's administrative judges handled appeals on permanent labor certifications, or how the comparable body in USCIS dealt with denied nonimmigrant worker decisions, you would have to wade through the decisions, one by one, and total up your own numbers.

But EOIR does it for us, and for that it is to be commended.