The Trump administration is working hard to undermine the asylum system through additional and unnecessary barriers, making it more difficult for those seeking refuge in the United States to be granted asylum. This is an ominous trend given that the U.S. government’s decision to either grant or reject an asylum request can be a life-or-death matter.
Utilizing recently released data from the U.S. immigration courts, the Transactional Records Access Clearinghouse (TRAC) found that the share of asylum requests being turned down by immigration judges has skyrocketed since mid-2017. Incorrectly rejecting such requests could result in death, torture, or imprisonment for asylum seekers if they are forced to return to their countries of origin.
Individuals who flee to the United States in search of safe haven can request asylum at the U.S. border. Most border crossers without proper documentation are subjected to a fast-track deportation process called “expedited removal,” unless they express fear of returning to their home countries. These individuals must be referred to an asylum officer for a “credible fear interview” to assess the likelihood of making a successful asylum claim.
During the interview, if the asylum officer finds that there is not a “significant possibility” that the asylum seeker could establish eligibility for asylum, the asylum-seeker can appeal to an immigration judge for a Credible Fear Review (CFR). The judge’s decision on the matter is final.
The data analyzed by TRAC indicate that the share of positive outcomes nationwide from CFRs had fallen to 14.7 percent as of June 2018 (75 out of 510 cases), which is more than half of what it was in June 2017 (32.7 percent, or 123 out of 376). Notably, the percentage of CFRs that resulted in a positive decision has been trending downward over the past 12 months.
The possibility of receiving a positive decision also varied greatly depending on where in the United States asylum seekers were making their case. For instance, during the period from October 2015 through June 2018, CFRs led to a positive outcome 60 percent of the time in Arlington, Virginia (63 out of 105 cases), compared to only 2 percent of the time in Atlanta, Georgia (3 out of 185 cases).
Asylum seekers who reentered the United States after being deported are typically subjected to “reinstatement” of their earlier removal order if they return, but they too can request an interview with an asylum officer. In this case, the asylum seeker must demonstrate a “reasonable possibility” of qualifying for asylum—a higher standard of proof than the credible fear interview. If the asylum seeker does not pass the reasonable fear interview, the decision can be appealed to an immigration judge for a “Reasonable Fear Review” (RFR).
As with CFRs, the rate at which immigration judges are overturning asylum officers’ negative decisions is on the decline: 13 percent in June 2018 (24 out of 187 cases), which is half of where it was in June 2017 (29 percent, or 66 out of 226 cases). There was also a high degree of variability in outcomes depending on location. In Arlington, RFRs yielded positive outcomes 50 percent of the time during the period from October 2015 through June 2018 (139 out of 279 cases). In Atlanta, this only happened 5 percent of the time (3 out of 59 cases).
It is no coincidence that immigration judges are taking a harsher approach than before when reviewing these credible and reasonable fear decisions. The administration has made no secret of its distaste for refugees and asylum seekers, particularly those coming from “developing” countries.
Attorney General Jeff Sessions, who oversees the immigration courts, has put many obstacles in the way of immigrants and asylum-seekers. Most notably, he overturned well-established case law to declare that most asylum claims based on gang violence or domestic abuse will not qualify for asylum. This decision clearly targeted the many Central American refugees who are fleeing often horrific levels of violence in their home countries. The administration has no safe haven to offer them, only rapid deportation back to the countries where their lives are in danger.