Asylum Success Still Varies Widely Among Immigration Judges

Published Nov 25, 2024

Wide differences in Immigration Judge asylum denial rates are evident across many Courts in the latest release of TRAC’s Immigration Judge report series. These new reports update each judge’s asylum decisions over the past six years through September 2024. The series includes 823 individual judge reports covering each of the 66 current Immigration Courts.[1] Where these judges were based is shown in Figure 1. Each of the latest individual judge reports is available here.

In this updated series, the widest difference between asylum denial rates was found in the San Francisco Immigration Court. See Figure 2.[2] There the range between the judge with the highest denial rate (91.6%) and the lowest denial rate (1.3%) was over 90 percentage points. The New York Immigration Court was right behind with a range of 89 percentage points, followed by the Arlington and Sacramento Immigration Courts each with a range of 86 percentage points. Two additional Immigration Courts had ranges of 80 percentage points or higher. These were the Newark Immigration Court (range of 83) and the Boston Immigration Court (range of 80). For other Courts, see Denial Rates table.

Why Do Judge Denial Rates Vary?

If Judge A's denial rate in San Francisco is higher than Judge B's denial rate in New York or Los Angeles, this does not imply that Judge A's decisions are somehow biased. It is entirely possible that fewer valid claims came before Judge A's court and that this fact accounts for Judge A's higher denial rate. The makeup of cases heard by different Immigration Courts around the country can be quite varied.

Applicants seeking asylum in the United States typically submit their claim in the court nearest their residence. As TRAC has previously reported, immigrants from a specific country often head to communities in which they have family or other ties.[3] For example, San Francisco and New York have been the lead destinations for immigrants from India, while the vast majority of newly arriving Cubans have located in Florida and particularly in Miami-Dade County.

This means that composition and background of cases in different courts vary a great deal, with asylum decisions often impacted by the conditions in the country the immigrant is fleeing. Data consistently show that asylum grant rates are strongly related to the nationality of the asylum seeker.[4]

Other differences in Court locations can affect outcome. One key factor is the availability of immigration attorneys which impacts how many asylum applicants have the help of a skilled attorney. Asylum seekers with representation enter the courtroom with greatly improved odds of being granted asylum.[5]

When we compare the decisions of judges sitting on the same bench, however, the situation is different. To the extent that asylum cases are assigned randomly within an individual Immigration Court (as the EOIR claims)[6] we can meaningfully focus on the extent of differences in asylum denial rates for judges within the same Court. When individual judges handle a sufficient number of asylum requests,[7] random case assignment will result in each judge being assigned a roughly equivalent mix of "worthy" cases. Large differences documented in the denial rates among judges then cannot be explained by differences in the legitimacy of asylum seekers' claims. One or more other factors—such as the pre-existing predilections of the judge assigned—must then be a source for these disparities.

The Impact of Court Size

It is also the case that larger differences among judges at the same Immigration Court tend to be found where the Court has more judges. More judges, each with their own background, experiences and judicial philosophy they bring to the bench, increase the odds that some judges will be chosen with differing views. Thus, it should not be surprising that among the Courts discussed earlier with the highest ranges between the judge with lowest and the judge with the highest denial rates, that the top two also have the largest number of judges: San Francisco (50 judges) and New York (79 judges). See Table 1.

However, this correlation of Court size and differences in denial range only extends to a certain point. Years ago, when the New York Court employed fewer than half the present roster of judges, the range in denial rates resembled present disparity levels. Back in 2007, asylum denial rates ranged from one New York judge denying asylum 91.6 percent of the time all the way down to colleagues’ denial rates of only 9.5 percent. See TRAC’s 2007 report. With differences this large persisting over so many years, countless asylum seekers’ fates have unquestionably been determined by luck alone, based on which judge their cases were assigned to.

Some courts do appear to be outliers—that is, Courts which given their size have an unusually large (or small) range among judges in their asylum decisions. One such Court is the El Paso Immigration Court. With just five judges who have decided at least 100 asylum cases, El Paso’s Court exhibits a much wider range in asylum denial rates depending upon which judge hears the case than the Tucson Immigration Court which also had 5 members. Is this because random assignment is not occurring? Do judges there have sufficient time to keep up on changing regulations and higher Court rulings or discuss standards with their colleagues?

The same questions could be asked of other Courts with much larger differences than their size would suggest. Historically, San Francisco has had much higher disparity than its neighbor to the south, Los Angeles. Also, why does the Sacramento Immigration Court (also in California) have the fourth highest range for its relatively small number of judges—just eleven?

Over the years, a concerted effort by the Court itself, urged on by the then Attorney General, did appear to succeed in reducing the disparity between judge decisions at least while the effort was ongoing. See detailed court-by-court findings. Further, some courts shown there with a wide range in judge denial rates, show up today with much lower ranges despite their increase in judges and caseloads.

But gains can dissipate when the focus shifts. TRAC documented in 2016 that the growing backlog of cases had increased pressures to expedite proceedings. Other administrative courts facing management pressure to quicken case processing have had the unintended consequence of actually increasing decision disparity. It would not be surprising if pressures on Immigration Judges to speed decision making, along with the reduced time available for training and discussion on the practical challenges in deciding asylum cases, may also have been a source of the increasing asylum decision disparities that have then occurred.[8]

Equal Justice Under the Law

Above the main entrance to the Supreme Court are engraved the words, "Equal Justice Under the Law." This phrase is an idealistic statement of one of the core values of the United States with its belief in the importance of the rule of law. How does the country’s legal system for determining asylum claims square with this core value? Given such wide differences in asylum decisions at the same Court, more attention is needed for why these extreme differences in asylum grant and denial rates persist.

To grant or deny an asylum application is among the most consequential decisions an Immigration Judge makes. For this reason, understanding how asylum decisions vary across time, across courts, and across judges warrants more attention—particularly in current public policy debates on immigration enforcement policies to reduce the Court’s backlog of cases. The lessons that are evident from past decades should not be ignored. For many asylum seekers our current system has not delivered a fast and fair resolution of their cases. Often it has delivered neither.