The process by which the United States grants asylum is extremely complex, partly because it takes place in two different agencies. One is the U.S. Citizenship and Immigration Services (USCIS), located in the Department of Homeland Security. The other is the Executive Office for Immigration Review (EOIR), located in the Justice Department. In addition to being under the purview of separate agencies, the asylum process is further complicated by the fact that it has multiple entry points and multiple exit points. As part of the background for a series of TRAC reports on asylum, presented here is a simplified description of the process.
What is Asylum and Who are Asylum Seekers?
Asylum, in simple terms, is legal protection against deportation. It is the status sought by non-US citizens who enter the U.S., either legally or illegally, asking for refuge based on claims of persecution or fear of persecution in their home country. Although refugees outside the country may ask for the same protection from the U.S. based on the same fear of persecution, asylum seekers are differentiated because they have already entered the country while refugees have not. The laws that govern asylum are covered in another TRAC background report. (see Asylum Law, Asylum Seekers and Refugees -- A short Primer
Overview of the Asylum Process
According to the Office of Immigration Statistics, there are two routes to gaining asylum, "…affirmatively through a USCIS asylum officer or defensively with an immigration judge as part of a removal hearing." How an asylum seeker enters the process plays a role in the eventual outcome. Figure 1 below presents an overview of the process flow for affirmative applications, and Figure 2 presents the flow for defensive applications.
An asylum seeker can file an affirmative application through the U.S. Citizenship and Immigration Service (USCIS), formerly part of the Immigration and Naturalization Service in the Department of Justice, now part of Homeland Security. This channel is open to applicants whether or not they have entered the country legally, as long as they have not been arrested by DHS and put into removal proceedings in immigration court. Unlike the defensive process described later, the affirmative process tends to be non-adversarial in nature. Currently Congress is debating changing the process to bar people who enter the U.S. illegally from seeking affirmative asylum.
During Fiscal Years 2000 through 2004, the last 5 years for which we have complete data, almost 251,000 cases composed of one or more individuals were filed affirmatively with USCIS. The number of cases filed rose during 2001 and 2002 but dropped dramatically in 2003 and 2004. During that same period, however, over 400,000 cases were, in one way or another, completed as the backlog of cases that had built up from previous years was reduced. (see graph and table)
As indicated in Figure 1 above, there are several options that USCIS Asylum Officers have for closing affirmative cases. During the five year period, approximately 52% of the cases completed were considered "adjudicated" while the remaining 48% received other dispositions. The adjudicated category consists not only of those cases where an actual decision about whether or not to grant asylum has been made, but also those cases that are filed after the one year deadline and thus not considered. Over the course of the five years, as the number of cases closed has risen, the percent of the closures that have been adjudicated has fallen. (see graph and table)
Adjudication can result in a case being "approved" which was the decision for 19% of all the affirmative asylum cases over five years, but only 9% in 2004. A case can also be "denied" which was the result for 2% of the cases over five years and 1% in 2004. The individuals in the cases that are denied asylum are in the country legally and are thus permitted to stay although without the legal privileges they would have had had they been granted asylum.
During the same period, along with these denials, in an additional 31% of all cases, asylum was not granted. However, because the individuals were in the country illegally, they were referred to Department of Justice to be placed in removal proceedings. For these individuals, removal proceedings automatically trigger a defensive asylum filing, which gives them another chance to be granted asylum. (see graph and table)
The remaining 48% of the cases that received other dispositions (i.e. those not adjudicated), consisted mostly of those labeled "Otherwise Closed", with a small percentage being sent directly to DOJ for removal without an interview. Interestingly, in 2004 as a push was made to reduce the backlog, an enormous 71% of the cases completed were "Otherwise Closed." (see graph and table)
Defensive asylum cases are heard in Immigration Court (Executive Office for Immigration Review – EOIR) by an Immigration Judge. Although the terms court and judge are used, this is an administrative process presided over by a Department of Justice employee. Neither the court nor the judge is part of the judiciary.
The defensive process is triggered automatically for individuals placed in removal proceedings who have expressed a "credible fear" of persecution if they are returned to their homeland. The hearing is meant to give these individuals an opportunity to defend themselves from a removal. Unlike the affirmative process, the hearings are adversarial with evidence exhibits, cross examination, witnesses, etc.
During the latest five year period (fiscal years 2001 – 2005), defensive asylum cases were filed on behalf of almost 311,000 individuals. (Note that the information system used in DHS to record the affirmative process counts cases which may represent one or more individuals, whereas the DOJ system recording the defensive process counts individuals.) During the same period, slightly less than 300,000 cases were completed. Although the backlog was not as great as had built up in the affirmative process, there was a similar push to reduce the backlog with over 18% more cases being closed during 2004 and 2005 than had been received in those years. (see graph and table)
As noted in Figure 2, there are two routes of entry into the defensive asylum process. One route is through "referral" from the affirmative process by Asylum Officers in DHS. Approximately 71% of defensive asylum seekers enter via this route with the percentage remaining fairly stable over the five year period. Although those entering via this route have in fact been denied asylum during the affirmative process and are now in defensive proceedings, their status is referred to as an "affirmative referral." In theory, these individuals will receive a de novo hearing where the judge starts afresh and is not guided or bound by the Asylum Office decision.
The other route of entry into the defensive asylum process is via an arrest by DHS or the initiation of an "expedited removal". If these individuals have expressed a "credible fear", the defensive process is triggered automatically. Approximately 29% of defensive filings come into the system this way, and again, the percentage has remained fairly stable over the past five years. (see graph and table)
Of the almost 300,000 defensive asylum seekers whose cases were completed between 2001 and 2005, close to half (48%) either withdrew or abandoned the application, or received an alternate resolution. This percentage is similar to the proportion of affirmative asylum cases that are "Otherwise Closed". Unlike the affirmative process, however, this category has remained fairly stable since 2001. (see graph and table)
The remaining 52% have been "decided on merit" by Immigration Judges. (See TRAC's report on Immigration Judges.) Figure 8 looks at just these cases. Again unlike the affirmative process, the proportions of grants vs. denials from the defensive process have remained fairly steady in the past five years with denial rates ranging from 60 - 63% of the cases decided on merit. If all dispositions -- not just those decided on the merits -- are considered, then ultimately four out of five individuals (80.2%) did not have their asylum claim upheld and only one out of five defensive applicants (19.8%) were granted asylum in immigration court. (see graph and table)
For those applications decided on merit, the origin of the application -- through the affirmative process first, or directly into the defensive process -- plays a role in the eventual outcome of whether asylum is granted or denied. For those cases in which asylum has been granted, 27% started as defensive claims and had not been referred from the affirmative process. This is not too dissimilar from the 29% of total defensive applications that start the process (see Figure 2, graph, table on grants, and table on denials)
Since such a large proportion of defensive applications are abandoned, withdrawn, or receive alternate resolution (48%), it would be interesting to understand the composition of this group in terms of application origin. Are those who come directly into the defensive process without first going through the affirmative process more or less likely to withdraw or abandon their case? While EOIR does not publish such statistics, available figures do suggest that those who come directly into the defensive process are much less likely to withdraw or abandon their case (or receive an alternative resolution) in immigration court than those that who go through the affirmative process first. On the other hand, because these same individuals are less likely to withdraw or abandon their claims, they are more likely to receive an "on their merits" denial decision from immigration judges. See earlier table on denials.
Ultimately, while the reasons for not receiving asylum may differ depending upon the origin of the defensive application, the odds of being granted asylum appears to be approximately the same for both groups in immigration court -- asylum is received by about one out of every five applicants.