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

Asylum and “Credible Fear” Issues in U.S. Immigration PolicyU.S. Government Accountability Office (GAO)The U.S. Government Accountability Office (GAO) analyzed the disparity in asylum decisions aswell and found that “significant variation existed.” GAO performed multivariate statisticalanalyses on asylum cases from 19 immigration courts that handled almost 90% of the cases fromOctober 1994 through April 2007. GAO identified nine factors that affected these outcomes:(1) filed affirmatively (originally with DHS at his/her own initiative) or defensively (withDOJ, if in removal proceedings); (2) applicant’s nationality; (3) time period of the asylumdecision; (4) representation; (5) applied within 1 year of entry to the United States; (6)claimed dependents on the application; (7) had ever been detained (defensive cases only); (8)gender of the immigration judge; and (9) length of experience as an immigration judge. 62GAO then statistically controlled for these nine factors and found disparities across immigrationcourts and judges: “For example, affirmative applicants in San Francisco were still 12 times morelikely than those in Atlanta to be granted asylum. Further, in 14 of 19 immigration courts foraffirmative cases, and 13 of 19 for defensive cases, applicants were at least 4 times more likely tobe granted asylum if their cases were decided by the judge with the highest versus the lowestlikelihood of granting asylum in that court.” 63GAO also found that the grant rate for affirmative cases exceeded 50% for asylum seekers fromcountries such as Albania, the PRC, Ethiopia, Iran, Russia, Somalia, and the former Yugoslavia.In contrast, GAO found that the grant rate for affirmative cases was lower than 10% for asylumseekers from El Salvador, Guatemala, Honduras, and Mexico. In terms of defensive cases, GAOobserved that about 50% of asylum seekers from Iran and Ethiopia were granted asylum andalmost 60% of such cases from Somalia were granted asylum. However, this outcome occurredfor 13% or less of the defensive asylum cases from El Salvador, Honduras, and Indonesia. 64 GAOalso offered the following important caveat:Because data were not available on the facts, evidence, and testimony presented in eachasylum case, nor on immigration judges’ rationale for deciding whether to grant or deny acase, we could not measure the effect of case merits on case outcomes. However, the size ofthe disparities in asylum grant rates creates a perception of unfairness in the asylumadjudication process within the immigration court system. 65Transactional Records Access Clearinghouse (TRAC)Researchers at Syracuse University’s TRAC have been conducting analyses of the immigrationcourts for several years and were among the earliest to identify wide variations in asylumoutcomes that were dependent on the immigration judge. “The typical judge-by-judge denialrate—half denied more and half denied less—was 65% . There were, however, eight judges who62 U.S. Government Accountability Office (GAO), U.S. Asylum System: Significant Variation Existed in AsylumOutcomes across Immigration Courts and Judges, GAO-08-940, September 2008, http://www.gao.gov/new.items/d08940.pdf.63 Ibid.64 Ibid.65 Ibid.Congressional Research Service 27