Findings of Credible Fear Plummet Amid Widely Disparate Outcomes by Location and Judge

Immigration Court outcomes in credible fear reviews (CFR) have recently undergone a dramatic change. Starting in January 2018, court findings of credible fear began to plummet. By June 2018, only 14.7 percent of the CFR Immigration Court decisions found the asylum seeker had a "credible fear." This was just half the level that had prevailed during the last six months of 2017. See Figure 1. Supporting details are found in Table 1[1].


Figure 1. Percent of Immigration Court Decisions Finding Credible Fear by Month, June 2013 - June 2018
(Click for larger image)

This recent change has major implications. Unless the asylum seeker who is otherwise subject to expedited removal[2] passes the CFR review, he or she is not allowed even to apply for asylum. This applies to most parents arriving with children at the southwest border. As a consequence, individuals who don't pass these reviews are usually quickly deported back to their home countries.

Table 1. Percent of Immigration Court Decisions Finding Credible Fear or Reasonable Fear by Month,
June 2013 - June 2018
Month # CFR
Decisions*
Credible
Fear
Denial
Affirmed
Credible
Fear (%)
# RFR
Decisions*
Reasonable
Fear
Denial
Affirmed
Reasonable
Fear (%)
2013-06 177 16 161 9.0% 115 13 102 11.3%
2013-07 233 26 207 11.2% 89 11 78 12.4%
2013-08 179 7 172 3.9% 119 15 104 12.6%
2013-09 171 17 154 9.9% 100 19 81 19.0%
2013-10 292 29 263 9.9% 136 10 126 7.4%
2013-11 276 34 242 12.3% 122 17 105 13.9%
2013-12 245 26 219 10.6% 110 20 90 18.2%
2014-01 296 51 245 17.2% 127 15 112 11.8%
2014-02 229 43 186 18.8% 121 16 105 13.2%
2014-03 279 63 216 22.6% 138 31 107 22.5%
2014-04 400 57 343 14.3% 112 20 92 17.9%
2014-05 319 41 278 12.9% 109 9 100 8.3%
2014-06 488 56 432 11.5% 138 21 117 15.2%
2014-07 1237 202 1035 16.3% 161 25 136 15.5%
2014-08 1198 258 940 21.5% 218 41 177 18.8%
2014-09 1095 261 834 23.8% 214 43 171 20.1%
2014-10 780 184 596 23.6% 194 37 157 19.1%
2014-11 467 145 322 31.0% 160 31 129 19.4%
2014-12 531 122 409 23.0% 197 38 159 19.3%
2015-01 517 107 410 20.7% 202 36 166 17.8%
2015-02 425 80 345 18.8% 171 39 132 22.8%
2015-03 457 75 382 16.4% 181 32 149 17.7%
2015-04 472 69 403 14.6% 215 41 174 19.1%
2015-05 401 115 286 28.7% 209 42 167 20.1%
2015-06 563 112 451 19.9% 286 70 216 24.5%
2015-07 694 128 566 18.4% 268 49 219 18.3%
2015-08 716 109 607 15.2% 214 32 182 15.0%
2015-09 603 161 442 26.7% 262 59 203 22.5%
2015-10 731 261 470 35.7% 237 63 174 26.6%
2015-11 595 166 429 27.9% 206 46 160 22.3%
2015-12 741 226 515 30.5% 191 46 145 24.1%
2016-01 620 185 435 29.8% 166 36 130 21.7%
2016-02 547 159 388 29.1% 202 47 155 23.3%
2016-03 709 203 506 28.6% 227 63 164 27.8%
2016-04 639 159 480 24.9% 228 54 174 23.7%
2016-05 549 189 360 34.4% 196 56 140 28.6%
2016-06 501 126 375 25.1% 236 48 188 20.3%
2016-07 543 162 381 29.8% 188 49 139 26.1%
2016-08 725 169 556 23.3% 205 56 149 27.3%
2016-09 592 154 438 26.0% 256 59 197 23.0%
2016-10 663 185 478 27.9% 188 51 137 27.1%
2016-11 756 191 565 25.3% 194 53 141 27.3%
2016-12 873 189 684 21.6% 210 53 157 25.2%
2017-01 736 152 584 20.7% 191 52 139 27.2%
2017-02 766 223 543 29.1% 215 68 147 31.6%
2017-03 668 142 526 21.3% 208 38 170 18.3%
2017-04 328 71 257 21.6% 193 29 164 15.0%
2017-05 318 86 232 27.0% 186 50 136 26.9%
2017-06 376 123 253 32.7% 226 66 160 29.2%
2017-07 348 108 240 31.0% 203 58 145 28.6%
2017-08 410 123 287 30.0% 236 54 182 22.9%
2017-09 292 89 203 30.5% 188 54 134 28.7%
2017-10 469 163 306 34.8% 203 69 134 34.0%
2017-11 445 162 283 36.4% 246 56 190 22.8%
2017-12 391 117 274 29.9% 201 45 156 22.4%
2018-01 527 121 406 23.0% 239 64 175 26.8%
2018-02 483 86 397 17.8% 195 35 160 17.9%
2018-03 486 62 424 12.8% 224 24 200 10.7%
2018-04 500 76 424 15.2% 223 49 174 22.0%
2018-05 551 83 468 15.1% 217 39 178 18.0%
2018-06 510 75 435 14.7% 187 24 163 12.8%
* Excludes a small number where decision unknown.

These very recent data from the Immigration Court provide an early look at how the landscape for gaining asylum may be shifting under the current administration. Initially, the Department of Homeland Security (DHS) determines whether in its view the person has a credible fear of persecution if returned to his or her home country. This review generally takes place within days of arrival at the border[3]. If the DHS asylum officer decides after informally interviewing the individual that he or she has not met this credible fear standard, the asylum seeker may ask that this decision be reviewed by an immigration judge. Here again the review generally happens quickly and the asylum seeker must explain why they are seeking asylum. Despite the inordinate complexities in asylum law, as a rule no attorney is allowed to help individuals at their hearings[4]. Yet an unfavorable decision at this stage ends the process. The judge's decision cannot be further appealed, and deportation quickly follows.

The observed decline in pass rates parallels a growing drumbeat of pronouncements by Administration officials about "baseless and fraudulent asylum applications," and an alleged seriously flawed system currently used to adjudicate these claims.

For example, in a speech delivered by Attorney General Sessions in October 2017 to an audience of immigration judges, he called for "elevat[ing] the threshold standard of proof in credible fear interviews," and criticized the award of asylum in too many alleged meritless cases. In March Sessions announced he was reviewing several Board of Immigration Appeals (BIA) asylum decisions with a view to limiting hearings, and restricting grounds for granting asylum[5]. In June, Session handed down a wide-ranging decision reversing long standing precedent and generally finding that now neither domestic abuse nor gang violence were legitimate grounds for granting asylum[6].

Odds of Passing Credible Fear Reviews Depend on Hearing Location and Judge

There are additional issues in credible fear reviews. The latest available case-by-case court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University document that depending upon the particular Immigration Court undertaking the credible fear review, the proportion of asylum seekers passing this screening step varied from as little as 1 percent all the way up to 60 percent - a sixty-fold difference. Thus, whether or not asylum seekers receive favorable CFR court decisions appears to be largely driven by which Immigration Court and judge heard their cases.

Previous reports by TRAC and others[7] have long documented wide judge-to-judge disparities in asylum decisions. This report breaks new ground in showing that similar differences also exist earlier in the asylum process in the determination of who is allowed to apply for asylum. These striking differences are illustrated in Figure 2. Since October 2015, for example, at least half of credible reviews found the asylum seeker had established credible fear of persecution if returned to their home country when conducted by the Immigration Courts in Arlington, Virginia (60% passed), Chicago, Illinois (52% passed), Pearsall, Texas (51% passed), and Baltimore, Maryland (50% passed).


Figure 2. Percent of Immigration Court Decisions Finding Credible Fear, October 2015 - June 2018
(Click for larger image)

During this same period, in comparison, 40 percent of credible fear reviews conducted by the San Antonio, Texas, Immigration Court received a favorable outcome and 39 percent were found to have a credible fear in those conducted by the San Francisco, California, Immigration Court. But only 20 percent were found to meet this standard by the Los Angeles Immigration Court.

In addition, since October 2015, only 1 to 2 percent were found to have credible fear when their review took place in Immigration Courts based in Lumpkin, Georgia (1% passed) and Atlanta, Georgia (2% passed).

More detailed statistics for each court that heard at least 100 cases during the October 2015 - June 2018 period is given in Table 2[8].

Table 2. Immigration Court Decisions After Credible Fear or Reasonable Fear Reviews, October 2015 - June 2018
Rank     Decisions after Credible Fear Review (CFR) Decisions after Reasonable Fear Review (RFR)
CFR RFR     #
CFR
Decisions
Credible
Fear (%)
By Fiscal Year #
RFR
Decisions
Reasonable
Fear
(%)
By Fiscal Year
State Immigration Court* 2016 2017 2018 2016 2017 2018
All 18,624 26.0% 28.8% 25.7% 21.7% 7,065 23.9% 24.5% 25.7% 20.9%
1 2 VA Arlington 105 59.6% 71.1% 47.9% 63.6% 279 50.0% 41.9% 45.0% 66.7%
2 1 IL Chicago 319 51.9% 49.5% 53.6% 52.4% 151 51.0% 50.0% 57.5% 46.8%
3 3 TX Pearsall 3,323 50.5% 63.8% 46.3% 29.2% 945 44.0% 63.9% 38.0% 26.4%
4 7 MD Baltimore 118 49.6% 49.2% 48.3% 52.4% 133 33.3% 27.3% 34.1% 38.6%
5 4 TX San Antonio 3,529 40.2% 39.0% 49.0% 31.7% 583 41.0% 41.6% 45.2% 31.7%
6 6 CA San Francisco 178 39.2% 33.7% 46.8% 38.1% 307 34.9% 28.6% 46.7% 22.0%
7 10 PA York 336 28.5% 35.1% 20.1% 34.7% 204 22.6% 21.7% 23.7% 22.1%
8 8 CO Aurora 371 28.2% 36.2% 20.7% 29.0% 216 28.4% 29.9% 27.1% 28.6%
9 9 MN Bloomington 48 23.9% 10.7% 53.3% (only 3) 132 26.0% 25.9% 32.6% 16.7%
9 18 OH Cleveland 199 23.9% 10.2% 32.4% 16.2% 63 14.5% 8.7% 22.7% 11.8%
11 14 CA Adelanto 529 22.1% 15.3% 24.6% 34.0% 181 19.4% 7.3% 29.2% 17.6%
12 12 NY Batavia 148 20.3% 21.0% 13.5% 26.7% 31 20.0% 9.1% 14.3% 60.0%
12 15 NJ Elizabeth 313 20.3% 22.7% 15.5% 24.4% 73 19.2% 28.6% 23.8% 9.7%
14 12 CA Los Angeles 231 19.8% 17.1% 24.0% 19.8% 161 20.0% 22.9% 21.3% 15.2%
15 17 CA Imperial 275 15.3% 12.2% 11.2% 23.3% 53 15.1% 20.0% 6.3% 17.6%
16 11 MI Detroit 102 13.7% 14.4% 8.3% (none) 47 21.7% 5.0% 26.7% 45.5%
17 20 TX Houston - Detained 1,834 13.4% 11.1% 14.7% 15.2% 563 13.5% 13.3% 13.0% 14.3%
18 5 NY New York - DET 106 12.3% 25.0% 7.7% (only 4) 51 40.0% 25.0% 23.8% 61.9%
19 25 WA Tacoma 325 11.2% 13.8% 6.9% 12.8% 264 7.7% 7.6% 6.9% 9.3%
20 25 LA Oakdale 221 10.9% 15.0% 6.0% 14.3% 79 7.7% 13.2% 3.8% 0.0%
21 21 CA San Diego 181 10.5% 5.4% 16.3% (only 2) 103 11.9% 0.0% 21.8% (none)
22 16 NM Chaparral 194 10.3% (only 4) 9.8% 18.8% 19 15.8% (none) 18.8% (only 3)
23 19 CA Otay Mesa 145 9.7% (none) 15.4% 8.4% 91 14.3% (none) 23.8% 11.4%
24 24 LA Jena 158 7.6% 5.5% 5.3% 40.0% 135 8.1% 6.2% 10.4% 9.1%
25 30 TX Los Fresnos 1,025 6.3% 3.5% 5.3% 9.6% 480 4.2% 3.8% 5.3% 3.6%
26 28 AZ Eloy 563 4.6% 5.9% 2.8% 5.7% 139 6.5% 5.6% 4.8% 8.2%
27 23 AZ Florence 705 4.4% 0.5% 5.5% 6.7% 188 9.6% 3.1% 16.7% 10.0%
28 25 TX Dallas 213 4.3% 2.1% 7.7% 10.3% 271 7.7% 3.8% 6.5% 12.6%
28 31 TX El Paso 959 4.3% 2.9% 2.5% 7.3% 223 4.1% 2.6% 8.2% 2.3%
30 22 FL Miami - Krome 557 3.8% 3.4% 3.8% 7.0% 187 9.8% 9.5% 6.4% 12.2%
31 29 GA Atlanta 185 1.7% 0.0% 0.0% 3.4% 59 5.3% 0.0% 4.5% 10.5%
32 32 GA Lumpkin 327 0.6% 0.6% 0.9% 0.0% 131 2.3% 2.9% 1.9% 2.3%
* Immigration Courts with at least 100 CFR or RFR decisions during FY 2016-FY 2018; if deisions in any year less than 5 no outcome percentage is calculated.

The fact that there were these extreme court-to-court differences does not explain why they occurred. For example, outcomes could vary because the general "worthiness" of individuals seeking asylum varied by location, or standards used by DHS asylum officers at different locations influenced the "worthiness" of cases that sought an immigration judge's review.

However, sometimes there were substantial differences among judges sitting on the same court, as well as great similarities in pass rates among judges sitting on courts with entirely different overall pass rates. Among the four Immigration Courts that decided at least a thousand cases during this period, for example, average pass rates varied from 6.3 percent to 50.5 percent. But there were individual judges in each of these four courts with low pass rates of just four per cent or less. While other judges in two of these courts - Pearsall, Texas and San Antonio, Texas - had pass rates of 94 percent.

Table 3. Immigration Court Judge-to-Judge Decisions Finding
Credible Fear in Courts with 1,000 or More Decisions,
October 2015 - June 2018
  Number of Judge CFR Rates
Immigration Court Decisions Judges* Lowest Highest Average
Pearsall, Texas 3,323 9 3.7% 93.9% 50.5%
San Antonio, Texas 3,529 8 3.9% 94.2% 40.2%
Houston - Detained, Texas 1,834 4 2.6% 11.7% 13.4%
Los Fresnos, Texas 1,025 5 1.6% 12.0% 6.3%
* Judge comparisons limited to those deciding at least 100 CFR cases.

Conclusion

It has long been clear that the extreme level of disparity now present in asylum adjudication is inconsistent with our country's commitment to equal justice and the rule of law. This report provides preliminary evidence of similar disparities in the process that determines who is and isn't allowed to apply for asylum.

Footnotes

[1] Reasonable Fear Review cases—a process that applies to reinstatement of removal orders—have also shown a parallel drop as shown in Table 1.

[2] DHS has authority to immediately administratively deport through an "expedited removal" anyone seeking asylum apprehended by the Border Patrol between ports-of-entry, or found to be inadmissible at a port-of-entry, unless they have "credible fear" of persecution if returned to their home country.

[3] Comparable DHS asylum officer decisions for this most recent period are not as yet available. Anecdotal reports indicate that findings of credible fear by DHS are also plummeting. See: https://www.cnn.com/2018/07/14/politics/sessions-asylum-impact-border/index.html.

[4] See discussion of representation at CFRs in the Office of the Chief Immigration Judge's Practice Manual. At the discretion of the Immigration Judge, an attorney may be allowed to sit in on the court's CFR hearing but is generally not allowed to participate in any way. See: https://www.jeffreyschase.com/blog/2018/7/22/attorneys-and-credible-fear-review.

[5] See, for example, the Attorney General's March 5, 2018 decision found at: https://www.justice.gov/eoir/page/file/1040936/download, and his March 7, 2018 announcement that he was re-examining an earlier BIA decision on asylum found at: https://www.justice.gov/eoir/page/file/1041481/download.

[6] See Washington Post June 12, 2018 article on this decision at: https://www.washingtonpost.com/news/morning-mix/wp/2018/06/12/back-to-the-dark-ages-sessions-asylum-ruling-reverses-decades-of-womens-rights-progress-critics-say/?utm_term=.a62557c958fe.

[7] See TRAC's November 2017 report and reviews of individual immigration judges documenting these disparities. For an overview of TRAC's past research see sidebar in its December 2016 report. See also 2007 Stanford Law Review, "Refugee Roulette: Disparities in Asylum Adjudication".

[8] Table 2 also provides details on reasonable fear review cases at each court.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.