Continued Rise in Asylum Denial Rates:
Impact of Representation and Nationality

Denials of asylum by immigration judges continued to rise last year. As of the end of September 2016, overall asylum denial rates for FY 2016 had risen to 57 percent. See Figure 1. The number of asylum cases decided last year also increased nearly twenty percent to 22,186 cases, up from 18,581 cases decided in FY 2015. Details are shown in Table 1.

Figure 1. Asylum Denial Rates in Immigration Court by Fiscal Year

This is the second to a two-part series examining this recent data. The first report examined how asylum outcome increasingly depended on the judge assigned the case. This report examines trends in filing asylum applications, and how outcomes differed by whether asylum seekers were represented and by the countries they were from^[1].

These latest Immigration Court numbers are based on case-by-case records on each asylum decision that were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These court records were provided by the Department of Justice's Executive Office for Immigration Review (EOIR) as a result of a series of Freedom of Information Act requests by TRAC.

The Impact of Representation

An increasing number of asylum seekers are attempting to navigate the Immigration Court system without representation. In FY 2007 some 3,721 individuals without representation had their asylum applications decided. They represented 13 percent of asylum cases that year. By FY 2016, the proportion whose asylum cases were decided without the benefit of representation had grown to 20 percent and affected 4,515 individuals^[2].

The evidence also shows that having an attorney continued to be almost a necessity for winning asylum in Immigration Court. Not only is the complexity of applying daunting for many, unrepresented individuals who do manage to file a claim are largely unsuccessful.

In fact, in FY 2016 immigration judges denied these 4,515 unrepresented asylum seekers' claims 90 percent of the time. In contrast, if represented, the odds of denial last year was 48 percent. Or stated another way, more than five out of every ten represented asylum seekers were successful as compared with only one out of every ten who were unrepresented. This translates to a success rate that was five times higher when you had an attorney.

Figure 2. Asylum Denial Rates in Immigration Court by Representation Status

Figure 2 shows contrasting trends for represented versus unrepresented asylum seekers in Immigration Court. Currently four out of every five asylum seekers were represented. The trends shown for those with an attorney parallel those shown earlier in Figure 1.

The outcomes for unrepresented asylum seekers differ not only in their much higher denial rates, but also in the trends shown. For unrepresented, there has been a steady upward march in their denial rates from 73 percent in FY 2001 to 90 percent by FY 2011. Since then their denial rates have varied only slightly from year to year. Details are shown in Table 2.

Thus, for much of this period the gap between denial rates for represented versus unrepresented asylum seekers grew. This increase was despite efforts such as through the Legal Orientation Program (LOP) established in 2003 to provide legal information regarding Immigration Court procedures and available forms of relief.

Asylum Seekers from Different Countries

The countries asylum seekers were from has also shifted. TRAC compared the most recent six years (FY 2011 - FY 2016) with the previous six years (FY 2005 - FY 2010) for nationalities that had one thousand or more asylum seekers during either period. While the number of asylum decisions declined by 18 percent nationally, asylum seekers from some countries have dramatically increased.

Five countries in particular, as shown in Figure 3, showed a surge in those seeking asylum. Mexico topped the list with a 408 percent increase in asylum seekers, followed by Honduras with a 166 percent increase, and Eritrea with a 101 percent growth. Other countries showing an increase of over fifty percent in asylum cases decided by the Immigration Courts during the last six years were Nepal and Somalia.

At the other extreme, Haiti had the largest drop in asylum cases. That country's numbers fell 89 percent. Showing a similar trend, was Colombia (down 87%) and Indonesia (down 81%). Details are shown in Table 3.

Figure 3. Percent Change in Immigration Court Asylum Cases (FY 2005-FY 2010) vs. (FY 2011-FY2016)

There was also wide variation in asylum grant and denial rates depending upon the nationality of the asylum seeker. Table 4 presents nationality-by-nationality asylum denial rates and percentage that had representation. The denial rates for the top ten nationalities are shown in Figure 4.

Figure 4. Asylum Denial Rates for Top Ten Nationalities, FY 2011 - FY 2016

Among the ten nationalities that had the largest number of Immigration Court asylum cases decided during FY 2011 - FY 2016, Mexico had the highest denial rate with nine out of ten (89.6%) turned down. The three Central American countries that have had large numbers arriving seeking asylum also had very high denial rates - El Salvador (82.9%), Honduras (80.3%), and Guatemala (77.2%).

Somalia also had over a fifty percent (54.7%) denial rate. While asylum seekers from Ethiopia and Eritrea were the most successful among the top ten nationalities with denial rates of only 16.5 percent and 17.5 percent, respectively.

Expanding the comparisons to all countries that had at least 10 asylum seekers, Jamaica had the highest denial rate (92.8%), while the Soviet Union had the lowest denial rate (10.0%).

Footnotes

Tables