Findings of Credible Fear Plummet Amid Widely Disparate Outcomes by Location and Judge

Immigration Court outcomes in credible fear reviews (CFR) have recently undergone a dramatic change. Starting in January 2018, court findings of credible fear began to plummet. By June 2018, only 14.7 percent of the CFR Immigration Court decisions found the asylum seeker had a "credible fear." This was just half the level that had prevailed during the last six months of 2017. See Figure 1. Supporting details are found in Table 1[1].

This recent change has major implications. Unless the asylum seeker who is otherwise subject to expedited removal[2] passes the CFR review, he or she is not allowed even to apply for asylum. This applies to most parents arriving with children at the southwest border. As a consequence, individuals who don't pass these reviews are usually quickly deported back to their home countries.

Table 1. Percent of Immigration Court Decisions Finding Credible Fear or Reasonable Fear by Month,
June 2013 - June 2018

Month	# CFR Decisions*	Credible Fear	Denial Affirmed	Credible Fear (%)	# RFR Decisions*	Reasonable Fear	Denial Affirmed	Reasonable Fear (%)
2013-06	177	16	161	9.0%	115	13	102	11.3%
2013-07	233	26	207	11.2%	89	11	78	12.4%
2013-08	179	7	172	3.9%	119	15	104	12.6%
2013-09	171	17	154	9.9%	100	19	81	19.0%
2013-10	292	29	263	9.9%	136	10	126	7.4%
2013-11	276	34	242	12.3%	122	17	105	13.9%
2013-12	245	26	219	10.6%	110	20	90	18.2%
2014-01	296	51	245	17.2%	127	15	112	11.8%
2014-02	229	43	186	18.8%	121	16	105	13.2%
2014-03	279	63	216	22.6%	138	31	107	22.5%
2014-04	400	57	343	14.3%	112	20	92	17.9%
2014-05	319	41	278	12.9%	109	9	100	8.3%
2014-06	488	56	432	11.5%	138	21	117	15.2%
2014-07	1237	202	1035	16.3%	161	25	136	15.5%
2014-08	1198	258	940	21.5%	218	41	177	18.8%
2014-09	1095	261	834	23.8%	214	43	171	20.1%
2014-10	780	184	596	23.6%	194	37	157	19.1%
2014-11	467	145	322	31.0%	160	31	129	19.4%
2014-12	531	122	409	23.0%	197	38	159	19.3%
2015-01	517	107	410	20.7%	202	36	166	17.8%
2015-02	425	80	345	18.8%	171	39	132	22.8%
2015-03	457	75	382	16.4%	181	32	149	17.7%
2015-04	472	69	403	14.6%	215	41	174	19.1%
2015-05	401	115	286	28.7%	209	42	167	20.1%
2015-06	563	112	451	19.9%	286	70	216	24.5%
2015-07	694	128	566	18.4%	268	49	219	18.3%
2015-08	716	109	607	15.2%	214	32	182	15.0%
2015-09	603	161	442	26.7%	262	59	203	22.5%
2015-10	731	261	470	35.7%	237	63	174	26.6%
2015-11	595	166	429	27.9%	206	46	160	22.3%
2015-12	741	226	515	30.5%	191	46	145	24.1%
2016-01	620	185	435	29.8%	166	36	130	21.7%
2016-02	547	159	388	29.1%	202	47	155	23.3%
2016-03	709	203	506	28.6%	227	63	164	27.8%
2016-04	639	159	480	24.9%	228	54	174	23.7%
2016-05	549	189	360	34.4%	196	56	140	28.6%
2016-06	501	126	375	25.1%	236	48	188	20.3%
2016-07	543	162	381	29.8%	188	49	139	26.1%
2016-08	725	169	556	23.3%	205	56	149	27.3%
2016-09	592	154	438	26.0%	256	59	197	23.0%
2016-10	663	185	478	27.9%	188	51	137	27.1%
2016-11	756	191	565	25.3%	194	53	141	27.3%
2016-12	873	189	684	21.6%	210	53	157	25.2%
2017-01	736	152	584	20.7%	191	52	139	27.2%
2017-02	766	223	543	29.1%	215	68	147	31.6%
2017-03	668	142	526	21.3%	208	38	170	18.3%
2017-04	328	71	257	21.6%	193	29	164	15.0%
2017-05	318	86	232	27.0%	186	50	136	26.9%
2017-06	376	123	253	32.7%	226	66	160	29.2%
2017-07	348	108	240	31.0%	203	58	145	28.6%
2017-08	410	123	287	30.0%	236	54	182	22.9%
2017-09	292	89	203	30.5%	188	54	134	28.7%
2017-10	469	163	306	34.8%	203	69	134	34.0%
2017-11	445	162	283	36.4%	246	56	190	22.8%
2017-12	391	117	274	29.9%	201	45	156	22.4%
2018-01	527	121	406	23.0%	239	64	175	26.8%
2018-02	483	86	397	17.8%	195	35	160	17.9%
2018-03	486	62	424	12.8%	224	24	200	10.7%
2018-04	500	76	424	15.2%	223	49	174	22.0%
2018-05	551	83	468	15.1%	217	39	178	18.0%
2018-06	510	75	435	14.7%	187	24	163	12.8%

* Excludes a small number where decision unknown.

These very recent data from the Immigration Court provide an early look at how the landscape for gaining asylum may be shifting under the current administration. Initially, the Department of Homeland Security (DHS) determines whether in its view the person has a credible fear of persecution if returned to his or her home country. This review generally takes place within days of arrival at the border[3]. If the DHS asylum officer decides after informally interviewing the individual that he or she has not met this credible fear standard, the asylum seeker may ask that this decision be reviewed by an immigration judge. Here again the review generally happens quickly and the asylum seeker must explain why they are seeking asylum. Despite the inordinate complexities in asylum law, as a rule no attorney is allowed to help individuals at their hearings[4]. Yet an unfavorable decision at this stage ends the process. The judge's decision cannot be further appealed, and deportation quickly follows.

The observed decline in pass rates parallels a growing drumbeat of pronouncements by Administration officials about "baseless and fraudulent asylum applications," and an alleged seriously flawed system currently used to adjudicate these claims.

For example, in a speech delivered by Attorney General Sessions in October 2017 to an audience of immigration judges, he called for "elevat[ing] the threshold standard of proof in credible fear interviews," and criticized the award of asylum in too many alleged meritless cases. In March Sessions announced he was reviewing several Board of Immigration Appeals (BIA) asylum decisions with a view to limiting hearings, and restricting grounds for granting asylum[5]. In June, Session handed down a wide-ranging decision reversing long standing precedent and generally finding that now neither domestic abuse nor gang violence were legitimate grounds for granting asylum[6].

Odds of Passing Credible Fear Reviews Depend on Hearing Location and Judge

There are additional issues in credible fear reviews. The latest available case-by-case court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University document that depending upon the particular Immigration Court undertaking the credible fear review, the proportion of asylum seekers passing this screening step varied from as little as 1 percent all the way up to 60 percent - a sixty-fold difference. Thus, whether or not asylum seekers receive favorable CFR court decisions appears to be largely driven by which Immigration Court and judge heard their cases.

Previous reports by TRAC and others[7] have long documented wide judge-to-judge disparities in asylum decisions. This report breaks new ground in showing that similar differences also exist earlier in the asylum process in the determination of who is allowed to apply for asylum. These striking differences are illustrated in Figure 2. Since October 2015, for example, at least half of credible reviews found the asylum seeker had established credible fear of persecution if returned to their home country when conducted by the Immigration Courts in Arlington, Virginia (60% passed), Chicago, Illinois (52% passed), Pearsall, Texas (51% passed), and Baltimore, Maryland (50% passed).

During this same period, in comparison, 40 percent of credible fear reviews conducted by the San Antonio, Texas, Immigration Court received a favorable outcome and 39 percent were found to have a credible fear in those conducted by the San Francisco, California, Immigration Court. But only 20 percent were found to meet this standard by the Los Angeles Immigration Court.

In addition, since October 2015, only 1 to 2 percent were found to have credible fear when their review took place in Immigration Courts based in Lumpkin, Georgia (1% passed) and Atlanta, Georgia (2% passed).

More detailed statistics for each court that heard at least 100 cases during the October 2015 - June 2018 period is given in Table 2[8].

Table 2. Immigration Court Decisions After Credible Fear or Reasonable Fear Reviews, October 2015 - June 2018

Rank				Decisions after Credible Fear Review (CFR)					Decisions after Reasonable Fear Review (RFR)
CFR	RFR			# CFR Decisions	Credible Fear (%)	By Fiscal Year			# RFR Decisions	Reasonable Fear (%)	By Fiscal Year
CFR	RFR	State	Immigration Court*	# CFR Decisions	Credible Fear (%)	2016	2017	2018	# RFR Decisions	Reasonable Fear (%)	2016	2017	2018
		All		18,624	26.0%	28.8%	25.7%	21.7%	7,065	23.9%	24.5%	25.7%	20.9%
1	2	VA	Arlington	105	59.6%	71.1%	47.9%	63.6%	279	50.0%	41.9%	45.0%	66.7%
2	1	IL	Chicago	319	51.9%	49.5%	53.6%	52.4%	151	51.0%	50.0%	57.5%	46.8%
3	3	TX	Pearsall	3,323	50.5%	63.8%	46.3%	29.2%	945	44.0%	63.9%	38.0%	26.4%
4	7	MD	Baltimore	118	49.6%	49.2%	48.3%	52.4%	133	33.3%	27.3%	34.1%	38.6%
5	4	TX	San Antonio	3,529	40.2%	39.0%	49.0%	31.7%	583	41.0%	41.6%	45.2%	31.7%
6	6	CA	San Francisco	178	39.2%	33.7%	46.8%	38.1%	307	34.9%	28.6%	46.7%	22.0%
7	10	PA	York	336	28.5%	35.1%	20.1%	34.7%	204	22.6%	21.7%	23.7%	22.1%
8	8	CO	Aurora	371	28.2%	36.2%	20.7%	29.0%	216	28.4%	29.9%	27.1%	28.6%
9	9	MN	Bloomington	48	23.9%	10.7%	53.3%	(only 3)	132	26.0%	25.9%	32.6%	16.7%
9	18	OH	Cleveland	199	23.9%	10.2%	32.4%	16.2%	63	14.5%	8.7%	22.7%	11.8%
11	14	CA	Adelanto	529	22.1%	15.3%	24.6%	34.0%	181	19.4%	7.3%	29.2%	17.6%
12	12	NY	Batavia	148	20.3%	21.0%	13.5%	26.7%	31	20.0%	9.1%	14.3%	60.0%
12	15	NJ	Elizabeth	313	20.3%	22.7%	15.5%	24.4%	73	19.2%	28.6%	23.8%	9.7%
14	12	CA	Los Angeles	231	19.8%	17.1%	24.0%	19.8%	161	20.0%	22.9%	21.3%	15.2%
15	17	CA	Imperial	275	15.3%	12.2%	11.2%	23.3%	53	15.1%	20.0%	6.3%	17.6%
16	11	MI	Detroit	102	13.7%	14.4%	8.3%	(none)	47	21.7%	5.0%	26.7%	45.5%
17	20	TX	Houston - Detained	1,834	13.4%	11.1%	14.7%	15.2%	563	13.5%	13.3%	13.0%	14.3%
18	5	NY	New York - DET	106	12.3%	25.0%	7.7%	(only 4)	51	40.0%	25.0%	23.8%	61.9%
19	25	WA	Tacoma	325	11.2%	13.8%	6.9%	12.8%	264	7.7%	7.6%	6.9%	9.3%
20	25	LA	Oakdale	221	10.9%	15.0%	6.0%	14.3%	79	7.7%	13.2%	3.8%	0.0%
21	21	CA	San Diego	181	10.5%	5.4%	16.3%	(only 2)	103	11.9%	0.0%	21.8%	(none)
22	16	NM	Chaparral	194	10.3%	(only 4)	9.8%	18.8%	19	15.8%	(none)	18.8%	(only 3)
23	19	CA	Otay Mesa	145	9.7%	(none)	15.4%	8.4%	91	14.3%	(none)	23.8%	11.4%
24	24	LA	Jena	158	7.6%	5.5%	5.3%	40.0%	135	8.1%	6.2%	10.4%	9.1%
25	30	TX	Los Fresnos	1,025	6.3%	3.5%	5.3%	9.6%	480	4.2%	3.8%	5.3%	3.6%
26	28	AZ	Eloy	563	4.6%	5.9%	2.8%	5.7%	139	6.5%	5.6%	4.8%	8.2%
27	23	AZ	Florence	705	4.4%	0.5%	5.5%	6.7%	188	9.6%	3.1%	16.7%	10.0%
28	25	TX	Dallas	213	4.3%	2.1%	7.7%	10.3%	271	7.7%	3.8%	6.5%	12.6%
28	31	TX	El Paso	959	4.3%	2.9%	2.5%	7.3%	223	4.1%	2.6%	8.2%	2.3%
30	22	FL	Miami - Krome	557	3.8%	3.4%	3.8%	7.0%	187	9.8%	9.5%	6.4%	12.2%
31	29	GA	Atlanta	185	1.7%	0.0%	0.0%	3.4%	59	5.3%	0.0%	4.5%	10.5%
32	32	GA	Lumpkin	327	0.6%	0.6%	0.9%	0.0%	131	2.3%	2.9%	1.9%	2.3%

* Immigration Courts with at least 100 CFR or RFR decisions during FY 2016-FY 2018; if deisions in any year less than 5 no outcome percentage is calculated.

The fact that there were these extreme court-to-court differences does not explain why they occurred. For example, outcomes could vary because the general "worthiness" of individuals seeking asylum varied by location, or standards used by DHS asylum officers at different locations influenced the "worthiness" of cases that sought an immigration judge's review.

However, sometimes there were substantial differences among judges sitting on the same court, as well as great similarities in pass rates among judges sitting on courts with entirely different overall pass rates. Among the four Immigration Courts that decided at least a thousand cases during this period, for example, average pass rates varied from 6.3 percent to 50.5 percent. But there were individual judges in each of these four courts with low pass rates of just four per cent or less. While other judges in two of these courts - Pearsall, Texas and San Antonio, Texas - had pass rates of 94 percent.

Conclusion

It has long been clear that the extreme level of disparity now present in asylum adjudication is inconsistent with our country's commitment to equal justice and the rule of law. This report provides preliminary evidence of similar disparities in the process that determines who is and isn't allowed to apply for asylum.