Speeding Up the Asylum Process Leads to Mixed Results

Published Nov 29, 2022

Last year saw a substantial increase in the Immigration Court’s processing of asylum cases. The number of asylum cases decided on their merits rebounded from their prior year’s low, and the number of individuals granted asylum by Immigration Judges reached an all-time high. Grant rates also rose. See Figure 1.

Total decisions more than doubled from 24,810 in FY 2021, to 51,607 during FY 2022. And the number of individuals granted asylum by Immigration Judges increased from 8,945 to 23,686. This was the largest number of individuals granted asylum in any year in the Immigration Court's history.

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.

Affirmative vs Defensive Asylum Cases

Both affirmative and defensive asylum applications in the Immigration Courts are included in this report. Most asylum applications today are considered defensive applications and filed in response to the Department of Homeland Security (DHS) initiating removal proceedings in Immigration Court by filing a Notice to Appear (NTA). 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 case. If USCIS denies the application, the agency 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.

Affirmative asylum requests initially turned down by USCIS as compared with defensive requests had much higher success rates. Over three-quarters (76%) of cases USCIS asylum officers had rejected were granted asylum on rehearing by Immigration Judges. Individuals who brought asylum claims as a defense against being deported won asylum just 39 percent of the time. The much higher success rate for affirmative cases continues past trends[3]. In addition, the percentage point increase in success rates in FY 2022 as compared with those in FY 2021 was also slightly greater for affirmative cases than experienced by defensive asylum seekers.

Representation Remains Key to Obtaining Asylum

Success rates were also more than two and a half times higher — 49 percent — in represented cases, than in the small number of unrepresented cases that had managed to file without an attorney at their side. Only 18 percent won asylum when unrepresented. See Table 2.

Historically, affirmative asylum cases have consistently had higher representation rates than defensive asylum cases. Today this means if asylum seekers go through the affirmative asylum process, receive a denial, and end up in Immigration Court, they nearly always already have an attorney. For FY 2022, 97 percent of affirmative asylum decisions as compared with 90 percent of defensive decisions were in represented cases. Higher success rates for asylum seekers in decisions involving affirmative cases thus can be attributed in part to their higher representation rates.

But representation is usually key to winning asylum for an even more critical reason. Many asylum seekers in defensive cases who appear in Immigration Court never get a hearing on their asylum claims. This is because without an attorney to help in filing the paperwork, few are able to put together a formal asylum application—a step that is required to even obtain a hearing on their asylum claims.

As a result, most are represented at the decision stage. Indeed, in 91 percent of asylum decisions reached in FY 2022, the asylum seeker was represented, up from 88 percent during FY 2021.

Detained Cases Fell, But Those Who Remained Detained Did Worse in FY 2022

Those who were detained had the lowest grant rates in FY 2022: only 15 percent were granted asylum. This result was worse than in FY 2021 when 21 percent were granted asylum while they were detained. Those who were released from detention had both the highest asylum grant rates (54%), as well as showed the largest gains in their success rates over FY 2021 (see Table 3). It is intriguing that those released from detention have had higher asylum grant rates than those who were never detained.

Detained individuals have a more difficult time in both finding an attorney as well as gathering the documents and testimony from others that may be needed while they remain in custody. Immigration detention practices changed between FY 2021 and FY 2022 with many fewer locked up by ICE[4]. The number of asylum seekers who managed to file the required asylum application while detained fell as a result, despite the overall increase in asylum cases.

Asylum Decisions by Nationality

Conditions prevalent in different countries are understandably important factors related to whether or not Immigration Judges award asylum. Over the past two decades, asylum seekers from some countries have been highly successful and have been granted asylum in Immigration Court proceedings, while those from other countries have faced much greater difficulty.

While asylum seekers come from just about every country, during FY 2021 there were at least 100 asylum seekers from 21 countries. All but four of these nationalities saw an increase in grant rates, and all but one, Cuba, also saw an increase in the sheer number who received asylum during FY 2022. See Table 4. Thus, Nepal, India, Nicaragua, and Columbia were notable in having their grant rates slip between FY 2021 and FY 2022.

During FY 2022, the highest grant rates among these 21 countries were applicants from Eritrea where 89 percent were granted asylum, up from 83 percent during FY 2021. Asylum seekers from Russia and Cameroon were tied with the next highest asylum grant rates of 88 percent.

At the bottom end of the list was Brazil where only 16 percent were granted asylum. During FY 2021 the grant rate for Brazilians had been 12 percent.

Some countries experienced a particularly large increase in the number of asylum decisions, along with the number of individuals granted asylum. Although Ecuador was tied next to the bottom where less than a quarter of asylum seekers (23%) were granted asylum, there was a 10-fold increase in the numbers whose applications were decided in FY 2022, up from 298 in FY 2021 to 3,380 in FY 2022. With more than a 3,000 jump in cases decided, this was the largest for any country. China, India, El Salvador, Guatemala, and Honduras all had increases of at least 2,000 more asylum decisions in FY 2022 than in FY 2021.

The Asylum Process Takes Time

Note that asylum decisions are a “lagging” indicator of actual volumes of asylum seekers. Take Haitians. The numbers currently arriving from Haiti seeking sanctuary have been rapidly increasing. In fact, there were 43,895 new cases involving Haitians that were filed in Immigration Court during FY 2022. Yet there were only 490 asylum decisions involving Haitians during this same period. And only 116 individuals were actually granted asylum during FY 2022.

Asylum decisions are a lagging indicator because the asylum seekers whose cases were decided during FY 2022, are generally not the same individuals who are just arriving at the border. Even after Customs and Border Protection officials file NTAs in Immigration Court seeking a deportation order, a defensive asylum application must be prepared and filed. As shown in Figure 2, historically we can see where there was a sharp rise in Haitians seeking entry to this county, the uptick in the number of asylum applications followed only after a year or more.

In addition, not all Haitians may be seeking asylum. And even if that is their aim, for a variety of reasons including the inability to obtain representation to assist in making out the paperwork to file for asylum, not all Haitians end up filing a formal application for asylum. Thus, in Figure 3 we see the plot (red line) representing the number of asylum applications generally below the plot (blue line) representing new NTAs.

And for those who do file for asylum, court cases conclude for a variety of grounds. For Haitians, for example, large numbers have been granted Temporary Protected Status (TPS)[5]. The end result of all of these factors is that asylum applications filed for Haitians during FY 2022 were less than a quarter (23%) of new NTAs, and asylum decisions on the merits of the asylum claim were just 5 percent of the number of applications which were filed during this same period.

In Recent Months Asylum Grant Rates Appear to Have Declined

Case-by-case Court records have now become available for October 2022. In this most recent month just 42 percent of asylum seekers were granted asylum. Compared to the overall grant rate of 46 percent during FY 2022, grant rates appear down. Was this a temporary blip or does this reduced success rate mark a real decline?

To answer this question, Figure 3 shows asylum grant rates month-by-month, rather than year-by-year. It is apparent that in the last three months of FY 2022 (July – September), asylum grant rates had already fallen to a lower level. During July, 42 percent of decisions, down from 50 percent in June, were asylum grants. In August, 40 percent of decisions were grants, and in September it was 41 percent. Thus, October appears to be a continuation of these lower asylum grant rates.

The Impact of Accelerated Asylum Proceedings on Overall Asylum Grant Rates

The Biden administration, similar to past administrations, has launched a series of new initiatives to accelerate asylum proceedings. Historically, asylum seekers have been much less successful when the time required to make their case is arbitrarily shortened with various forms of “rocket dockets.” Again and again, results have produced greatly lowered asylum grant rates[6].

Evidence is now accumulating from the first of the Biden administrations initiatives to speed up asylum proceedings using specialized hearings called Dedicated Dockets[7]. Here cases assigned to the Dedicated Docket go to the front of the line to be heard before remaining cases that have been waiting often for years in the Court’s growing backlog. The goal was set of issuing decisions in these cases within 300 days from their initial master calendar hearing.

On the one hand, this initiative has been very successful at shortening the time it takes to process an asylum case for an increasing volume of cases. As TRAC’s November 16, 2022, report documented, for Dedicated Dockets during FY 2022 it took an average of just 276 days to complete an asylum case – from the date of the NTA to the Immigration Judge's decision granting or denying the asylum claim.

We can track the success of the Biden administration in expanding the number of cases receiving expedited processing by charting how long asylum cases are taking to go from the issuance of a Notice to Appear (NTA) that initiates an Immigration Court proceeding to an Immigration Judge’s decision. This changing profile of completion times is shown below in Figure 4. (For actual figures, see Table 5 below.)

In the first three months of FY 2022 (Oct-Dec 2021), there were just 431 proceedings that were concluded within 3 to 18 months. This represented a mere 5 percent of all asylum cases decided on their merits. This had grown from 431 to 6,755 asylum cases during the last quarter of FY 2022 (July – September) – an increase of 1,467 percent! Now 37 percent of all asylum cases were being decided within 3 to 18 months, a dramatic jump from 5 percent at the beginning of the fiscal year.

Cases completed within 18 – 36 months, in contrast, have actually fallen—down by 55 percent—at the same time that the total volume of asylum cases doubled. During the first quarter of FY 2022 there were 2,334 such cases or just over a quarter of the court’s asylum output. During the last quarter of FY 2022 this had fallen to 1,041 cases which represented just 6 percent of the Court’s asylum output.

It is also clear that the Immigration Court has been making other moves to try to expedite the processing of its asylum backlog since the number of Dedicated Docket cases decided during FY 2022 don’t account for all of this rapid growth in cases decided within 18 months[8]. Some of these additional initiatives, such as streamlined removal proceedings with the new Asylum Officer Rule, are too new to show up as yet in these statistics, but other practices appear to have also been advancing hearing dates. Little studied is the Court's ramped up “docket management” procedures.

Although cases have moved faster on the Dedicated Docket, case outcomes have suffered. TRAC recently reported that only 28 percent of these Dedicated Docket cases were granted asylum, as compared with the 52 percent grant rate that was achieved in all other regular asylum proceedings during FY 2022.

Expedited hearings more generally are impacting asylum grant rates. Focusing on the cases which were closed in 3 to 18 months, as the number of these cases grew during FY 2022, the asylum grant rates fell from 43 percent at the beginning of the year to 31 percent in the last quarter. In contrast, cases which took over 18 months either showed increasing grant rates, or kept roughly the same. See Table 6.

Conclusion

In this report, TRAC used the latest case-by-case government records through the end of October 2022 to examine the current state of the asylum process in the Immigration Courts. On the one hand, in Fiscal Year 2022, more asylum applications were granted by Immigration Judges than ever before, and many asylum cases moved through the system faster due to a variety of initiatives such as the Dedicated Docket.

On the other hand, cases that did move faster through the Courts were less likely to get representation, file a full asylum application, and receive a positive asylum determination. Moreover (and related to these factors), asylum grant rates have been declining in recent months. Adding further complexity, the nationality of asylum applicants continues to change rapidly over time.

Due to the frequent change in government policy as well as frequent shifts in the composition of asylum seekers after screening by CBP officials at the border, the U.S. asylum system is undergoing continuing change. Greater public transparency about what is occurring, including release of up-to-date accurate and detailed data tracking these events, remains essential to an informed public debate.