Asylum Decisions and Denials Jump in 2018

Fiscal year 2018 broke records for the number of decisions (42,224) by immigration judges granting or denying asylum. Denials grew faster than grants, pushing denial rates up as well. The 42,224 decisions represented a 40 percent jump from decisions during FY 2017, and an 89 percent increase over the number of asylum decisions of two years ago.

This increase largely reflects asylum applicants who had arrived well before President Trump assumed office. Given the backlog in the Immigration Court only one out of five asylum decisions involved cases that took 12 months or less to decide. The one exception was for those who were unable to find an attorney to assist them. For those without representation, over half (55.8%) had cases begun in the same year. For those who were represented, only about one in ten (12.9%) were in cases that had taken 12 months or less to decide.

In 65.0 percent of these decisions this past year asylum was denied[1]. This is the sixth year in a row that denial rates have risen. Six years ago the denial rate was just 42.0 percent. See Figure 1. (For year-by- year figures, see Appendix Table 1 at the end of this report.)

What Do Immigration Court Asylum Grant and Denial Rates Really Mean?

Immigration judges' decisions on asylum applications are not necessarily the same as the outcome of each case. A denial of asylum does not automatically result in a deportation order. The individual could have qualified for some other form of relief, or was otherwise found by the immigration judge to not be deportable and was accordingly allowed to remain in the country.

Currently the government does not publish or provide public access to data that would allow complete tracking of the final outcome from all asylum cases. This occurs in part because multiple agencies are involved, often with separate tracking systems. Only a partial portrait is therefore available from Immigration Court data.

The situation is particularly confusing for unaccompanied children from Honduras, Guatemala, El Salvador and other countries that do not directly border this country. While the Immigration Court generally has jurisdiction over their cases, their actual applications for asylum are typically submitted directly to U.S. Citizenship and Immigration Services (USCIS). If asylum officers at USCIS determine they are entitled to asylum, the Immigration Court will use the USCIS decision as a basis for closing the child's case. However, the decision to allow them to remain in the country will not be recorded as a grant of asylum in the court's records. This is because court records only separately track asylum decisions made by immigration judges.

Table 1 compares case outcome in FY 2018 for the top four nationalities seeking asylum, and compares these with asylum grant and denial rates.

Table 1. Asylum Grant and Denial Rates and
Overall Immigration Court Case Outcomes in FY 2018

	Asylum Decision Grant/Deny		All Asylum Applications		All Immigration Court Cases
	Number	Granted	Number	Outcome: Can Remain in U.S.	Number	Outcome: Can Remain in U.S.
All Nationalities	42,224	35.0%	64,974	39.2%	215,569	33.2%
El Salvador	8,232	23.5%	12,073	31.1%	28,665	37.6%
Honduras	6,240	21.2%	8,745	23.9%	30,242	27.2%
Guatemala	6,052	18.8%	9,214	24.9%	37,571	26.2%
Mexico	5,379	14.5%	10,896	33.5%	65,792	24.7%

Note that for El Salvador, Honduras, and Guatemala the proportion allowed to remain in the country is higher than the asylum grant rate. As a result, the proportion of those allowed to remain in the country is somewhat higher than the simple grant and denial rate suggests.

Of course, not all individuals from these three countries apply for asylum in Immigration Court. The last two columns in Table 1 include the outcome for all Immigration Court cases. The proportion of those allowed to stay from these three countries is somewhat higher even than on those submitting asylum applications to the court[2]. This partially reflects the inclusion of favorable outcomes for many unaccompanied children's cases who submit their application to USCIS rather than directly to the Immigration Court.

Absentia and Representation Rates

Rising denial rates were not the result of asylum seekers failing to show up for their hearing. During FY 2018, only 573 or 1.4 percent were denied asylum because they failed to appear for their scheduled hearing. That meant for 98.6 percent of all grant or deny decisions, the immigrants were present in court.

The unavailability of representation also did not explain the rising denial rates. In fact, FY 2018 saw a turnaround in the proportion of decided cases with representation. During FY 2018 representation rates increased to 84.4 percent, as compared with 78.4 percent during FY 2017. As shown in Figure 2, during the four previous years from FY 2014 through FY 2017, representation rates had been below average as the number of asylum cases rose. (Appendix Table 2 provides the underlying statistics.)

This rebound during FY 2018 in part reflects the delayed impact of many organized efforts to provide pro bono legal representation. These efforts picked up speed after the asylum seekers from Central America - many involving mothers with children -- began arriving in large numbers beginning in 2014. These efforts have continued to expand. However, given the frequent delays before Immigration Court hearings can be scheduled, it has taken some time before many of these represented cases worked their way through to a final decision.

Judge-by-Judge Differences in Asylum Decisions

The outcome for asylum seekers continued to depend on the identity of the immigration judge assigned to hear the case. The San Francisco Immigration Court led the country in having the widest disparity among judges serving on the same court. Depending upon the judge, denial rates ranged from 97 percent down to 10 percent.

Recent Trends Under President Trump

While Figure 1 shows a fairly steady rise in asylum denial rates since FY 2015, the month-by month picture gives a more nuanced impression. Against a backdrop of natural month-to-month variability, Figure 3 shows that there were periods of relative increase followed by stretches where rates showed little average gain. The switch to a purple line from blue shown in Figure 3 marks where President Trump assumed office following President Obama.

The graph indicates that asylum denial rates rose during the initial months of the Trump Administration. However, after that denial rates stabilized. Only very recently beginning in June of this year did denials climb again. This latest rise corresponded with decisions announced by former Attorney General Sessions that strictly limited the grounds on which immigration judges could grant asylum. Central American women and children fleeing from gang and domestic violence no longer were deemed asylum candidates. Not surprisingly, following this new hard line on immigration enforcement, the rate of asylum denials has recently climbed.

Brand New Asylum Decision App

Given the increased focus on asylum seekers by the Trump Administration, TRAC has developed a new web query asylum decision tool. This allows users to drill in to examine, month-by-month, denial decisions by court, hearing location, county and state of the immigrant's residence, nationality, custody, representation status and more.

For the first time, users can see when asylum seekers who were denied asylum are ordered deported or are granted some other form of relief. Separate series are available for tracking trends in affirmative versus defensive asylum claims.

Appendix Table 1. Immigration Court Asylum Decisions, FY 2001 - FY 2018

Fiscal Year	Asylum Decisions	Asylum Granted	Asylum Relief Denied	Other Relief Granted	Percent Denied
Total	475,151	205,021	261,335	8,795	55.0%
2001	25,036	10,006	14,632	398	58.4%
2002	29,357	10,978	17,968	411	61.2%
2003	35,782	13,382	21,867	533	61.1%
2004	33,897	13,024	20,254	619	59.8%
2005	30,744	11,711	18,535	498	60.3%
2006	29,782	13,300	15,960	522	53.6%
2007	27,736	12,854	14,396	486	51.9%
2008	24,070	10,886	12,716	468	52.8%
2009	21,603	10,272	10,716	615	49.6%
2010	19,449	9,877	9,045	527	46.5%
2011	22,045	11,492	9,958	595	45.2%
2012	21,535	11,961	9,051	523	42.0%
2013	20,947	11,051	9,441	455	45.1%
2014	19,781	9,686	9,715	380	49.1%
2015	18,592	9,036	9,216	340	49.6%
2016	22,318	9,714	12,190	414	54.6%
2017	30,253	11,591	18,215	447	60.2%
2018	42,224	14,200	27,460	564	65.0%

Appendix Table 2. Change in Representation Rates, FY 2001 - FY 2018

Fiscal Year	Asylum Decisions	Represented
Fiscal Year	Asylum Decisions	Number	Percent	Change*
Total	475,151	381,049	80.2%
2001	25,036	17,990	71.9%	-8.3%
2002	29,357	21,754	74.1%	-6.1%
2003	35,782	27,292	76.3%	-3.9%
2004	33,897	26,060	76.9%	-3.3%
2005	30,744	24,412	79.4%	-0.8%
2006	29,782	25,055	84.1%	3.9%
2007	27,736	23,919	86.2%	6.0%
2008	24,070	20,520	85.3%	5.1%
2009	21,603	18,236	84.4%	4.2%
2010	19,449	16,216	83.4%	3.2%
2011	22,045	18,262	82.8%	2.6%
2012	21,535	18,040	83.8%	3.6%
2013	20,947	17,130	81.8%	1.6%
2014	19,781	15,118	76.4%	-3.8%
2015	18,592	14,379	77.3%	-2.9%
2016	22,318	17,307	77.5%	-2.6%
2017	30,253	23,712	78.4%	-1.8%
2018	42,224	35,647	84.4%	4.2%

* Difference between average of 80.2% and representation rate for given fiscal year.

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