Asylum and "Credible Fear" Issues in U.S. Immigration Policy

Asylum and “Credible Fear” Issues in U.S. Immigration PolicyApprovals by Regional Office and Immigration CourtResearch studies of the approval rates of cases filed by asylum seekers consistently revealdisparities by USCIS regional asylum offices and EOIR immigration courts. Fredric N. Tulsky ofthe San Jose Mercury News was a finalist for the Pulitzer Prize for investigative reporting in 2001“for his illuminating reporting on the arbitrary and inconsistent administration of the federalsystem that grants political asylum.” 55 In 2006, researchers at Syracuse University’s TransactionalRecords Access Clearinghouse (TRAC) found “a surprising lack of consistency” among similarlysituated asylum cases considered by EOIR from FY1994 to the early months of FY2005. 56 TheStanford Law Review published “Refugee Roulette: Disparities in Asylum Adjudication” in 2007,which analyzed decisions of USCIS asylum officers as well as EOIR immigration judges. 57Refugee RouletteThe example of asylum seekers from the PRC offers striking differences in the percentage ofcases approved across regions and jurisdictions, despite national data trends that appearedconsistent. A study of 290 asylum officers who decided at least 100 affirmative cases from thePRC from FY1999 through FY2005 found that the approval rate of PRC claimants spanned fromzero to over 90% during this period. In one regional asylum office, the grant rates for affirmativeapplications from the PRC varied from zero to 68%. Sixty percent of the officers in that regionaloffice deviated from their office’s average PRC asylum approval rates by more than 50%. 58Nationwide, immigration judges granted asylum to 47% percent of defensive cases of PRCclaimants from January 1, 2000, through August 31, 2004, but exhibited a pattern of variationsimilar to the USCIS asylum officers when the cases were broken down by court. Theimmigration court in Atlanta approved 7% of defensive PRC cases; however, the court inOrlando, FL, approved 76% of defensive cases from PRC claimants. The disparity continued ifthe applicant lost at the Board of Immigration Appeals and petitioned for review in the U.S. Courtof Appeals. From FY2003 to FY2005, the Fourth Circuit did not remand a single case from thePRC (i.e., the court never decided in favor of the applicant), while the Ninth Circuit remanded in37% of the PRC cases. 59The authors of this extensive study of affirmative and defensive decisions, “Refugee Roulette:Disparities in Asylum Adjudication,” offered the following observations:Asylum seekers from three of these countries faced a grant rate in at least one court that wasmore than 50% below the national average, and applicants from four of these countriesenjoyed a grant rate in at least one court that was more than 50% above the nationalaverage.... For one of these countries, China, the high grant rate and the low grant ratedeviated by more than 50% from the national average.... Colombian asylum seekers alsofaced major disparities: those who appeared before the Orlando Immigration Court had a55 The Pulitzer Prizes, “2001 Finalists Journalism,” press release, 2001, http://www.pulitzer.org/finalists/2001.56 Transactional Records Access Clearinghouse, Immigration Judges: Asylum Seekers and the Role of the ImmigrationCourt, Syracuse University, July 2006, http://trac.syr.edu/immigration/reports/160/.57 Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, “Refugee Roulette: Disparities in AsylumAdjudication,” Stanford Law Review, vol. 60, no. 2 (November 2007).58 Ibid.59 Ibid.Congressional Research Service 25