Recent TRAC Reports Reinforce the Conclusion that Asylum Decision-Making Remains Arbitrary and Unfair

December 12, 2017

For years, studies have shown troubling disparities in asylum case outcomes based on such factors as the adjudicator assigned to the case, geographic location, country of origin, whether the applicant is detained and/or represented by counsel, and other factors unrelated to the merits of the case. For example, a decade ago, the aptly-named study Refugee Roulette identified striking disparities in asylum grant rates between immigration courts, as well as between immigration judges on the same court.

Recently-published research by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University confirms that these disparities persist today, and that they have actually become more pronounced in recent years, in some circumstances almost completely foreclosing asylum seekers' chances of prevailing.

TRAC research released last month showed disturbing disparities in asylum grant rates between immigration courts. From 2012 to 2017, 32.6% of asylum cases were denied in San Francisco, while 68.1% of cases were denied in Los Angeles. In Eloy, Arizona, 93.3% of cases were denied. 

TRAC also reported increasing disparities between judges on the same immigration court. For asylum cases heard in San Francisco over the last 6 years, the likelihood of prevailing ranged from 2.9% (the rate at which Judge Anthony Murry granted asylum) to 90.6% (the rate at which Judge Rebecca Jamil has granted asylum). In Newark, asylum grant rates ranged from 1.3% (Judge Margaret Reichenberg) to 89.1% (Judge Frederic Leeds). In Chicago, the disparity between the highest and lowest asylum grant rates increased by 12 percentage points over the last year. Increased judge-to-judge disparities were found in 12 out of the 16 immigration courts studied, resulting in an overall increase in judge-to-judge disparity of 27%.

TRAC research released in November reports that immigration courts decided almost 8,000 more asylum cases in 2017 than in 2016. Simultaneously, the average denial rate in asylum cases rose from 57% in 2016 to 61.8% in 2017.

This report also addresses the issue of legal representation. Ten years ago, 13.6% of asylum seekers were unrepresented. Despite continued efforts to increase representation through pro bono efforts and government-funded programs, 20.6% of decisions rendered in 2017 were in cases of asylum applicants who lacked legal counsel. But while representation rates have fallen, the negative impact associated with a lack of representation has increased. Ten years ago, immigration courts denied unrepresented applicants asylum 85.6% of the time. In 2017, courts denied asylum in 90% of cases of unrepresented asylum seekers, compared to 54.4% of those with representation. Prior research has also shown that the lack of legal representation disproportionately impacts women and children

These recent studies, and others before them, have relied on statistical analysis to identify broad trends relating to the impact of certain factors (such as legal representation, and the immigration judge assigned) on case outcomes.

Relying on CGRS’ collection of hundreds of agency decisions—which are generally unavailable to the public—CGRS Founding Director Karen Musalo, in collaboration with Political Science Professor Anna Law of CUNY Brooklyn College, is currently undertaking a three-year study to analyze how these and other factors impact adjudication in individual immigration judge and Board of Immigration Appeals decisions. In the first study of its kind, Professor Musalo and Professor Law will analyze—quantitatively and qualitatively—more than 800 decisions by immigration court judges and the Board of Immigration Appeals to seek to understand the impact of legal and non-legal factors on agency analysis and adjudication.

CGRS Co-Legal Directors Blaine Bookey and Eunice Lee, and Staff Attorney Annie Daher, have contributed to and been collaborators on this study, which is funded by the National Science Foundation.*

Read more about CGRS' gender asylum study here.


* This material is based upon work supported by the National Science Foundation under Grant Number 1556131. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation.