Immigration Judge Decisions Overturning Asylum Officer Findings in Credible Fear Cases

Published Mar 14, 2023

Over 100,000 credible fear cases have been heard by Immigration Judges. These cases determine whether the migrant has a credible fear of persecution or torture if returned to their home country. Unless the migrant passes this screening, the individual generally will be immediately deported. If they receive a favorable decision, then and only then will they have an opportunity to have their asylum claims formally heard. [1]

Given their critical nature, these cases receive priority on the Court’s docket and go to the head of the line. There they are speedily decided. On average, these decisions are made within ten days. Last month in February 2023, cases took an average of just five days.

The public can examine 25 years of these credible fear Court decisions by visiting TRAC’s new Outcomes of Immigration Court Proceedings tool online. We used these data to recently report on the main workload of the Court, its deportation cases. However, this free tool also allows the public to examine the outcomes for many of the special types of cases the Court also handles. [2] This report examines the largest of these special types: credible fear review cases.

Rising Number of Credible Fear Cases in Immigration Court

The number of credible fear cases has generally been rising, as shown in Figure 1. It wasn’t until FY 2010 that cases climbed above 1,000 per year. In FY 2014, cases jumped to over 6,000 and they rose above 12,000 during FY 2019. This rise in large part reflects the increasing number of persons seeking asylum in this country, particularly along the US-Mexico border.

While over 100,000 migrants have had a credible fear hearing before an Immigration Judge during the past quarter century, 60 percent of these reviews have taken place during the last five years. So far during the Biden administration, from FY 2021 through February 2023, Immigration Judges (IJs) have rendered close to 36,000 decisions.

Overturning Asylum Officer Decisions on Credible Fear

On average slightly over 25 percent of IJ decisions over the last 25 years have found that migrants had established having a credible fear of persecution or torture after an asylum officer initially denied the claim. It is important to remember that most credible fear reviews are conducted by asylum officers in US Citizenship and Immigration Services (USCIS). The cases Immigration Judges hear are only those which were first turned down by asylum officers, that is the asylum officer did not find credible fear to be established. This means that IJ decisions found that 25 percent of asylum seekers who didn’t pass this first screening, actually should have passed and, as a result, the IJ overturned these asylum officers’ decisions.

A credible fear finding does not mean the individual is granted asylum. Rather, a credible fear determination is an initial step to decide whether or not the immigrant should have the opportunity for a full asylum hearing. The immigrants in this study who appeared before an Immigration Judge have already had a negative credible fear determination before an asylum officer. The hearing with the judge is their second and last chance to pass this screening test. As noted above, if the IJ turns them down, then the asylum seeker is subject to immediate deportation.

Clearly, it would be desirable to be able to add the IJ’s favorable decisions presented here to the initial favorable decisions by asylum officers in USCIS to derive the precise total number of immigrants who passed the credible fear process. Unfortunately, as with many immigration processes that cross more than one agency, USCIS and EOIR have separate databases and have not as yet agreed to release data in a manner that would allow TRAC to follow individuals through the entire credible fear screening process.

A composite can only be approximated by adjusting USCIS’s aggregate statistics for the number of IJ credible fear decisions which overturned the asylum officer. During the most recent 12 month period available, USCIS reports asylum officers denied 32 percent. When results from IJ reviews of denials during the same period are factored in, the 32 percent turn-down rate is reduced to just 23 percent. Thus, recent asylum seekers have been found to have a credible fear of persecution or torture if returned to their home country most of the time.

Rising Proportion of Asylum Officer Decisions Overturned by IJs

Figure 2 shows the proportion of asylum officer decisions overturned by IJs. The rate, while fluctuating, has generally been rising. For example, while there were year-to-year fluctuations, the overturn rate averaged under 10 percent through FY 2005. After FY 2005, credible fear was generally found in a growing proportion of cases. The climb was sharpest during the Obama administration. By FY 2016, it had reached 28 percent.

When President Trump assumed office, Attorney General Sessions addressed Immigration Judges and called for “elevat[ing] the threshold standard of proof in credible fear interviews.” The overturn rate quickly dropped. It fell from 28 percent down to 21 percent by FY 2018. However, during the second half of the Trump presidency it rose back to 26 percent in FY 2019 and 30 percent in FY 2020.

During the first two years of the Biden administration, it remained at 30 to 31 percent. But so far during FY 2023 it has significantly fallen below the 25-year average, to just 24 percent.

There are many factors which potentially may have influenced these changing rates. This report restricts its attention to the influence of just one such factor: the nationality of these asylum seekers.

Nationality Impacts IJ Credible Fear Decisions

Nationality is a significant determinant in asylum decisions, so it is not surprising that IJs’ credible fear decisions also vary by country. For example, Court records during the Biden years show Armenians, although relatively small in number (47) had the highest rate of establishing credible fear in their hearings before an Immigration Judge. Their rate was 70 percent. This was followed by individuals from Cameroon (68%), and Syria (65%). Nationalities with the least success in establishing credible fear during FY 2021 – February 2023 were migrants from Brazil (16%), Costa Rica (16%), and the Dominican Republic (19%). See Table 1.

Colombians had the largest number of total cases, and IJs found these individuals established credible fear in 28 percent of their 7,255 cases. Nicaraguans were the next largest nationality with 5,018 cases and a 30 percent success rate. Haitians were the third largest nationality with 3,253 cases, and with 27 percent establishing credible fear and overturning the asylum officers’ original finding.

Conclusion

A total of 10,000 migrants during the Biden presidency have been found to meet the credible fear standard by Immigration Judges, overturning the prior decision by asylum officers. These individuals then joined the Court’s long backlog que -- now 2,135,074 cases -- to wait to have their regular Immigration Court deportation proceedings begin. [3] Asylum seekers will next need to prepare and file formal paperwork to set forth the grounds and evidence to support their asylum claim. Here they will usually need to first find representation to assist in this process since few can complete these steps without help. Then, and only then, will these individuals have the opportunity to have their asylum claims heard.