Asylum Grant Rates Climb Under Biden

Under the new Biden administration asylum seekers are seeing greater success rates in securing asylum. While asylum denial rates had grown ever higher during the Trump years to a peak of 71 percent in FY 2020, they fell to 63 percent in FY 2021. Expressed another way, success rates grew from 29 percent to 37 percent under President Biden.

However, with the continuing partial court shutdown during the COVID-19 pandemic, there has been a sustained drop in the number of asylum decisions. This means fewer asylum seekers actually won their cases despite this improving success rate. During FY 2021 just 23,827 asylum decisions were made. This is down from 60,079 decisions during FY 2020. These statistics count all decisions rendered on the merits of asylum seekers' claims.

Even with the greater odds of success, the number of asylum seekers who were granted asylum during FY 2021 was only 8,349 with an additional 402 granted another type of relief in place of asylum. In sheer numbers, this was only about half the number of asylum seekers who had been granted relief during FY 2020. See Figure 1.

Asylum is a form of protection that immigrants who believe they are facing persecution can lawfully request at the borders of the United States or while inside the country. Asylum cases can be exceedingly complex and are influenced by complex life histories, political and social contexts outside of the United States, and a constantly shifting landscape of U.S. immigration laws and policies. Asylum is also notable for being discretionary, which means that asylum applications are approved or denied on the authority of an Immigration Judge's individual conclusions about a case. Simple trends may not have simple causes.

This report—the first in a two-part series—is an attempt to identify and disentangle factors that shape the observable trends in asylum decisions before the Immigration Courts. It is based upon an analysis of hundreds of thousands of detailed Immigration Court records covering the last two decades obtained from the Executive Office for Immigration Review (EOIR) by TRAC under the Freedom of Information Act (FOIA).

Disentangling Influences of The Pandemic Shutdown

It is possible that with so many Immigration Courts closed or partially closed due to the pandemic, that the composition of asylum cases may also have shifted. Perhaps the decline in denials merely reflects the different mix of cases and/or Immigration Judges hearing these cases—not any change in the underlying odds of success more generally for asylum seekers.

An examination of parallel month-by-month data on asylum decisions should help disentangle the effects of the partial government shutdown from those resulting from the change in presidential administrations. See Figure 2. The partial government shutdown began in mid- March of 2020, and we see the drop in decisions immediately following in the monthly time series plot. During February 2020 asylum decisions had topped 10,000. while by April 2020 asylum decisions had fallen to under 2,000. And monthly asylum decisions while varying a bit month-by-month have continued at this low level through September 2021, the latest data available.

What happened to the proportion of asylum decisions where asylum was granted or denied during this same timeframe? Initially, as we see in Figure 2, the asylum denial rate climbed for a month, then dropped the following month, before settling at a level very similar to the denial rate before the government shutdown. Thus, this sharp drop in the number of asylum decisions resulted in very little change in asylum denial rates during the remaining months of the Trump administration from April 2020 - December 2020.

The month-by-month plot also clearly shows that a decline in asylum denial rates began once the new Biden administration took office at the end of January 2021. By September 2021, the asylum denial rate had dropped to 53 percent. That means that success rates had climbed to 47 percent. This cannot be attributed to any real change in the number of asylum cases being decided. The February - September 2021 period differs little from case numbers during the latter months of the Trump administration.

Another interesting comparison is the asylum success rate between the waning months of the Obama administration with those thus far in the Biden administration. During the last quarter (October 2016-December 2016) of the Obama administration, asylum denial rates were 56 percent. The Biden administration's denial rate during the last three months (July-September 2021) is a full 5 percentage points lower, at 51 percent. Or stated a different way, asylum seekers success rate has climbed five percentage points and is now at 49 percent, up from 44 percent at the end of the Obama administration.

Most Asylum Cases in Court are Now Defensive, Few are Affirmative

Both affirmative and defensive asylum applications in the Immigration Courts are included in the data and in this report. Most asylum applications today are considered defensive applications and filed in response to the Department of Homeland Security initiating removal proceedings in Immigration Court. An individual may then claim they are entitled to asylum as a defense against removal[1].

Alternatively, under some circumstances asylum applications can be first submitted to the U.S. Citizenship and Immigration Services (USCIS) when a person does not have a pending deportation cases. If USCIS denies the application, it then generally refers the application to the Immigration Court. This is considered an affirmative application[2]. Decisions granting asylum by USCIS are not referred to the Immigration Court and are therefore not covered in these data. Thus, effectively successful affirmative asylum applications have been excluded from these data since only unsuccessful affirmative asylum applications can make their way to this second hearing and decision by an Immigration Judge.

At one time the majority of asylum applications decided by Immigration Judges were affirmative cases. This is no longer the case.

For the decade spanning FY 2001 - FY 2010, around 60 percent of asylum applications were for affirmative cases referred by USCIS. Starting in 2003, a declining number of affirmative applications reached the Court. Then starting around 2016, the number of defensive asylum applications started to grow.

These trends are shown in Figure 3. The rapid buildup in defensive asylum seekers during the Trump years pushed the proportion of defensive cases up to 90 percent, while affirmative cases fell to just 10 percent. That is nine out of every ten asylum decisions that year were on defensive applications. The huge drop in defensive asylum case decision during FY 2021 allowed the percentage of decisions in affirmative asylum cases to climb back to 15 percent. This was true even though the actual number of decisions in affirmative cases also actually fell as a result of Court closures during the pandemic.

Asylum Outcomes in Affirmative vs Defensive Cases

Historically, asylum seekers have had greater success in the Immigration Court for affirmative as compared with defensive asylum cases. Indeed, this has been true for decades. Figure 4a provides a time series graph plotting asylum denial rates separately for affirmative vs defensive decisions. Figure 4b presents an alternative view of these same trends—this time looking at asylum success rates rather than denials. Success here is further separated into whether asylum itself was granted or asylum was denied but other forms of relief were granted to the asylum seeker.

While denial rates are consistently higher in defensive asylum cases, the pattern of these differences show distinctively different trends in Figure 4. Denial rates for affirmative asylum decisions began a long period of decline starting in FY 2006. They had been running at around 56 percent and fell to 49%. Denial rates stabilized for a while at this point, and then began consistently declining after 2008 until bottoming out during FY 2016 with fewer than one in five (18%) of asylum seekers denied relief in affirmative cases. Since then, denial rates rose again. In FY 2021 slightly more than a third (35%) of decisions in affirmative asylum cases denied relief.

Trends for defensive asylum cases instead of declining rose fairly steadily during most of the same period (from FY 2008 through FY 2020). This past year, as we have previously noted, overall denial rates dropped once President Biden assumed office. All of this decline occurred in defensive asylum cases.

Lots of factors may have contributed to these divergent trends. We examine two important influences in this report: Representation rates among asylum seekers, and whether or not they were detained.

Higher Representation Rates Contribute to Higher Asylum Success Rates

Asylum seekers who are represented by an attorney have greatly increased odds of winning asylum or other forms of relief from deportation. This is consistently reflected in a time series plot of asylum denial rates for represented versus those who were not represented. See Figure 5.

Over the past two decades four out of five (81%) asylum decisions occurred in cases where the asylum seeker was represented. For decisions in FY 2021 nearly nine out of ten (89%) asylum seekers were represented. This clearly was a vital factor in improving overall asylum success rates since in the prior year, FY 2020, representation rates were 80 percent or nine (9) percentage points lower.

Given the dominance of represented asylum seekers in the makeup of Court cases, trends for represented asylum seekers in Figure 5 largely mirror the overall trends displayed earlier in Figure 1.

Trends in denial rates for asylum seekers who were not represented generally worsened over most of this period, climbing from 71 percent during FY 2001 to 89 percent during FY 2013. Thereafter outcomes remained at around 89 percent denial rate through FY 2018, before falling to 81 percent in FY 2020.

This considerable improvement during the Trump years is noteworthy and contrasts with the generally worsening odds that represented asylum seekers were experiencing during this same period. [The second report in this series will examine how differences in the nationalities of asylum seekers have influenced these trends.]

While the unrepresented were many fewer in FY 2021, denial rates for this remaining small group were largely unchanged with the inauguration of a new presidential administration.

Affirmative asylum cases have consistently had higher representation rates than defensive asylum cases. See Figure 6. And over the past two decades while affirmative cases have generally dwindled, the proportion who were not represented has also declined. During FY 2020 and FY 2021, only 4 percent of affirmative decisions for asylum seekers were unrepresented.

Today this means if asylum seekers go through the affirmative asylum process, receive a denial, and end up in Immigration Court, they nearly always have an attorney. Higher success rates for asylum seekers in decisions involving affirmative cases can be attributed in part to their higher representation rates.

Figure 7 contrasts the denial rates for four groups: whether the case was affirmative or defensive and whether the asylum seeker was represented.

Those who were represented and were affirmative cases consistently have much, much lower denial rates. Indeed, unrepresented affirmative cases usually have the same or even lower denial rates than asylum seekers in defensive cases who have representation! During FY 2021, for example, denial rates in defensive cases were 66 percent for represented cases and 82 percent for those without representation. In contrast, both represented and unrepresented asylum seekers in affirmative cases had substantial lower denial rates.

In affirmative cases, those who were unrepresented were denied asylum (as well as other forms of relief) in 52 percent of Immigration Judges' decisions, while for those with representation the denial rate dropped to 32 percent. That means that even for represented asylum seekers, denial rates are only half the level in affirmative compared with defensive cases.

Detention and Outcome

Asylum seekers who are detained face a myriad of disadvantages when seeking asylum. Not only do they have more difficulty in securing representation, but being locked up presents a whole host of difficulties for preparing and presenting their cases effectively. Moreover, the rationale for ICE's decision to detain someone (such as criminal history) may also factor negatively into the Immigration Judge's discretionary decision about whether to approve or deny asylum.

While being held in custody by ICE is relatively unusual in affirmative cases, it is more common for asylum seekers in defensive cases. In fact, over the two decades only 43 percent of asylum seekers in defensive cases were never detained, while fully 98 percent were never detained in affirmative cases.

Thus, examining success rates for asylum seekers in affirmative cases largely reflects the fact that they are both represented as well as never detained during Immigration Court proceedings.

However, even if we compare affirmative asylum denial rates with defensive cases which were both represented and never detained a large differential in outcomes remains.

This comparison is shown in Figure 8 for each of the last five fiscal years. For each of these years, denial rates are around 40 to 50 percentage points lower for affirmative cases than for defensive cases. Stated another way, success rates for obtaining asylum are 40 to 50 percentage points higher in affirmative cases. Clearly other factors are at work beyond representation and custody status.

Coming Next

Ideally, of course, outcome in asylum cases should reflect the strength of an asylum seeker's claims. Direct measures are obviously not available for the underlying strength of each asylum seeker's case. Changes in outcome highlighted in this report also occurred against a backdrop of larger shifts in enforcement and migration patterns.

An ebb and flow of asylum seekers has been experienced over the past two decades with certain periods seeing waves of migrants seeking asylum massed along the Southwest border. The countries these asylum seekers are fleeing from have also undergone profound change over the past two decades. ICE enforcement priorities and practices in the interior of the country have also experienced large shifts as different presidential administrations assumed office.

This is the first of a two-part series examining changing asylum outcomes. It synthesizes data covering the past two decades, contrasting these trends against the current state of affairs reflected in the latest available Court data. The second report in this two-part series will take a detailed look at the shifting composition of asylum seekers with respect to nationality, age, gender, and language to see if these factors appear to have played any role in influencing asylum outcomes.

Expanding Asylum Information Tools: Gender, Age and Language

TRAC is excited to announce that our Asylum Decisions tool has been expanded with new data categories that the public has been asking for. Specifically, TRAC's free information tool now includes data about gender, age, and language for asylum cases decided by Immigration Judges. All of the numbers summarized in this report, and much more, can be obtained from this updated and expanded web query tool available here.

In addition, TRAC is working on two brand new asylum tools. These will track new asylum filings, and will document the growing backlog of Immigration Court asylum cases. Each tool will provide a similar wide range of factors that can be examined to allow users to dig deeper into the results, both nationally as well for each Immigration Court and hearing location. Look for an announcement for their release in the coming weeks. Also, a new edition of the report series covering asylum decisions by each Immigration Judge is coming shortly.

TRAC continues to sound the alarm that every month more asylum-related records go missing from EOIR's database. TRAC has raised this issue with the agency several times. After considerable pressure, the EOIR finally appeared to have fixed the most glaring errors (read more here), but has since refused to take further action. Over time, the cumulative loss of extremely important asylum records could undermine the ability of the agency to provide the public (and itself) with accurate and complete reports on asylum cases. TRAC provides a running total of the number of missing asylum cases on the Asylum Decisions tool web page.

^[1] As a matter of practice, asylum seekers who cross the border unlawfully are currently typically assigned by DHS to the defensive asylum path in the Immigration Courts, even though their sole purpose for crossing was to affirmatively request asylum. The Biden administration has proposed a change in policy that would provide these asylum seekers with a hearing before USCIS asylum officers. The proposed rule change is explained by former Immigration and Naturalization Service Director Doris Meissner of the Migration Policy Institute here.

^[2] Despite the many nuanced legal differences between affirmative and defensive asylum, perhaps the most important practical difference is that affirmative asylum interviews take place in an administrative, non-adversarial (or at least less adversarial) setting with an asylum officer and with the option of having an attorney and interpreter present, but without an opposing counsel. In contrast, defensive asylum hearings take place in an adversarial setting in Immigration Court with an Immigration Judge and an opposing attorney from Immigration and Customs Enforcement.