Parsing Truth from Fiction in President Trump’s Latest Attempt to Restrict Asylum

Earlier this week President Trump released a memorandum directing the Attorney General and the Secretary of Homeland Security to impose a variety of new restrictions that would drastically undermine the asylum system. The president followed this announcement with a “fact sheet” that claims asylum seekers submit “meritless” claims and fail even to appear in court. As recent analysis from Human Rights First has shown, asylum seekers continue to appear for immigration court proceedings at high rates. In fiscal year (FY) 2018, Department of Justice (DOJ) figures show that 89 percent of all asylum applicants attended their final court hearing to receive a decision on their application. When families and unaccompanied children have access to legal representation, the rate of compliance with immigration court obligations is nearly 98 percent.

The contentions in the White House’s “fact sheet” about asylum do not coincide with the reality that the vast majority of asylum seekers attend their immigration court hearings:

Administration’s Contention: On average, out of every 100 aliens subject to expedited removal who claim a fear of persecution, only about 12 will ultimately be granted asylum.

REALITY: Figures from the DOJ show that in the first quarter of FY 2019, the immigration court granted 1,824 asylum applications for individuals who passed a credible fear interview and denied 3,667, which resulted in a 33 percent grant rate. Between FY 2008 and 2018, the overall grant rate was 41 percent. As Human Rights First has previously explained, asylum grant rates for Central American asylum seekers were on the rise until President Trump took office. Between FY 2010 and 2016, the percentage of asylum seekers from the Central American countries of El Salvador, Guatemala, and Honduras granted protection rose by 96 percent, according to data from the Syracuse University Transactional Records Access Clearinghouse (TRAC). Decisions by the Attorney General to limit eligibility for asylum, including Matter of A-B-, have caused asylum grant rates to decline, particularly for Central American refugees.

Administration’s Contention: Around half of all aliens who make a credible fear claim and are subsequently placed in removal proceedings do not actually apply for asylum.

REALITY: Since FY 2008, the percentage of individuals who do not file an asylum application in court has dropped by more than one-third to about 40% in FY 2018. Some individuals who have passed a credible fear interview do not ultimately submit the asylum application, which is 12 pages long and must be completed in English, because they are unable to secure counsel to assist them in preparing and filing the application.

Administration’s Contention: The number of aliens who do not show up to court and are ordered removed in absentia has soared, with 17,200 removal orders issued in absentia in the first quarter of fiscal year (FY) 2019.

REALITY: The number of in absentia removal orders has not “soared.”

• First, as the American Immigration Counsel has noted, the in absentia rate should be calculated based on the total number of pending cases because this more accurately reflects the percentage of immigrants who miss a hearing – by this measure only about 8 percent of immigrants will miss a hearing resulting in an in absentia order in FY 2019 (at the current rate). This compares to FY 2008 when the in absentia rate for pending cases was 14%. The average in absentia rate for pending cases between FY 2008 and FY 2018 was also 8 percent.
• Second, the final number of in absentia orders is very likely to decline, as immigrants not at fault for missing court (such as because of the court’s failure to mail a hearing notice to the correct address) successfully challenge their removal orders and reopen their cases. Indeed, an analysis from TRAC found that excluding cases where in absentia removal orders are eventually overturned “significantly impacts and reduces the calculated rates.”
• Finally, even considering the in absentia rate as a percentage of completed cases (the government’s flawed method for calculating these rates) the FY 2019 rate of 29 percent (17,200 in absentia orders / 58,988 completed cases), is not much different from the average rate for completed cases between FY 2015 and FY 2018 of 25 percent. It is also important to note that this figure includes all immigration cases not just those of asylum seekers or individuals who have passed a credible fear interview.

Administration’s Contention: If this pace continues, in absentia removal orders would more than triple the 2013 total.

REALITY: The number of removal orders has to be considered within the context of the number of completed and pending cases. Since 2013, the immigration court’s pending caseload has more than doubled from 356,246 to 821,726 in the first quarter of FY 2019. The percentage of in absentia removal orders as a portion of all pending cases has not grown significantly: in FY 2013 it stood at 6 percent and to date in FY 2019 is 8 percent. As noted above, this figure is likely to drop as in absentia orders are reversed.

Administration’s Contention: For cases originating in a credible fear claim, in absentia removal orders are on pace to increase to 17,636 in FY 2019, around 20 times more than the total in FY 2010.

REALITY: This is cherry picking. The administration has arbitrarily compared FY 2019 to the year with the lowest number of in absentia orders in the past decade. For FY 2008 through FY 2018 the average in absentia rate by completed cases (which as noted above fails to account for the vast majority of immigrants who appear for hearings where the immigration judge does not make a final decision) that began with a credible fear interview was 29 percent. That compares to a 36 percent rate thus far in FY 2019, which is likely to decline as asylum seekers who unintentionally missed court challenge these orders and are able to continue their asylum hearings. Analysis by Human Rights First of DOJ statistics shows that between 2013 and 2017, 92 percent of asylum seekers appeared in court to receive a final decision on their claims.

Administration’s Contention: From FY 2014 to FY 2018, roughly half of removal orders issued for Unaccompanied Alien Children (UACs) were issued in absentia.

REALITY: Unaccompanied children are dependent upon their adult sponsors to ensure that they meet their immigration court obligations, including attendance at hearings. Because these children may miss hearings at no fault of their own, in absentia removal orders are commonly dismissed in these cases. Looking at data from the cases of unaccompanied children whose cases began between 2007 and 2011, which are more likely to have reached final resolution, 76 percent of these cases were decided with the unaccompanied child in attendance according to analysis of TRAC data. TRAC data also shows that 98.1 percent of unaccompanied minors who were represented by legal counsel complied with their court hearing obligations for cases that began between 2014 and 2017.

Administration’s Contention: Since September 2018, 1 out of every 6 family unit cases filed on special expedited dockets at 10 immigration courts has ended with an in absentia removal order.  

REALITY: This data shows that the in absentia rate for families is about half the in absentia rate for respondents in immigration court generally. As CLINIC and the Asylum Seeker Advocacy Project have demonstrated, many families who are issued in absentia orders are able to successfully challenge these orders because of the government’s failure to provide timely notice of hearings and send notices to the correct addresses, among other issues.  Human Rights First analysis of TRAC data demonstrates that under the previous family case docket, mothers who had passed a credible fear interview and were represented by counsel attended their immigration court hearings over 97.5 percent of the time for cases initiated between 2014 and April 2017.

As Human Rights First has previously documented, some asylum seekers miss their court hearings, because:

• Immigration agencies fail to provide adequate, language-appropriate information related to appearance and supervision requirements, as well as the legal consequences of the failure to attend hearings;
• The government provides incorrect information regarding the time, date, or location of the hearing;
• Multi-year delays in filing notices to appear with the immigration court and in the scheduling of hearings can lead to inadvertent failures to appear;
• Medical issues such as trauma or cognitive disabilities prevent individuals from attending;
• Asylum seekers confuse immigration court hearings with ICE check-ins because ICE does not inform asylum seekers that check-ins are separate and distinct from court obligations nor does it inform asylum seekers about court obligations at check-ins;
• Asylum seekers believe they must have an attorney present to appear in court because ICE does not inform them of court procedures; and
• Asylum seekers are given immigration court hearings in different states without explanation of the process for correcting such errors.