A new report, Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers, raises concerns about the Boston Asylum Office and about the affirmative asylum system in general. Here, we'll discuss some of the report's findings and some suggested improvements to the system. I want to focus on one particular suggestion in the report, which has been on my mind lately: Whether asylum applications can be approved largely "on the papers," with only a brief interview. But first, let's take a look at the report's main points.

One finding of the report relates to disparities between the different Asylum Offices. This isn't exactly breaking news. Indeed, widely varying approval rates among and within offices has been a topic of concern since at least 2007 and the publication of the seminal article Refugee Roulette: Disparities in Asylum Adjudication. The data in the Boston report is newer, of course, and covers the period from 2016 to 2019, which is to say that it is not particularly current. This is not the fault of the authors. Rather, in 2019, the Asylum Division stopped regular publication of data, which was part of the Trump Administration's overall effort to reduce transparency. We are still waiting for the Biden Administration to resume regular data dumps, and until that happens, we are all stuck relying on outdated information.

In any event, what the report shows is that the Asylum Offices with the highest grant rates are San Francisco (52.4%) and New Orleans (46.4%). In the middle are Los Angeles (36.0%), Chicago (32.4%), Arlington (27.1%), Houston (25.9%), and Newark (24.6). And at the lower end are Miami (20.7%), Boston (15.5%), and New York (10.6%). If you are an affirmative asylum seeker, you can find out which office has your case here.

There are a couple caveats to this data. First, as I mentioned, it is not up-to-date. That said, the relative grant rates of the different offices has not changed that much over time--you can see that from this post, analyzing data from 2015. Second, there are different ways to calculate approval rates (for example, should you include "no shows" or denials based on the one-year filing bar), and using different methods gives you different results (which you can see in this post comparing data from 2015 and 2019, with and without one-year-bar denials). Finally, different offices serve different populations, and so if, for example, the Boston office serves mostly asylum seekers from Central America--applicants who have historically low grant rates--it may push that office's overall approval rate down. For applicants from other regions, that office may not be so bad. For this reason, I have advised that shopping around for an "easier" Asylum Office may not be all that beneficial.

All that said, there is a large gap between approval rates in San Francisco and New Orleans, and rates in Boston and New York. Why should this be? The report essentially finds that Supervisory Asylum Officers ("SAOs") at the Boston office play an "oversized role" in decisions and that such officers "demonstrate bias that contributes to the low approval rates." The report also finds that the Boston office had a bias against asylum seekers from certain countries.

In terms of the SAOs in Boston, I have to say that I am not entirely convinced by the report's conclusions. It is true that every decision by an Asylum Officer must be approved by a supervisor. That is true in Boston and all Asylum Offices. However, there is little to support the idea that the SAOs in Boston exercise any more influence over decisions than SAOs in other locations. Based on interviews with former Asylum Officers ("AOs"), the report finds that the SAOs and AOs hired in Boston when the office first opened in 2015 tended to be people who were more likely to deny asylum. That may be (and in fact, two organizations that represented asylum seekers noticed that their overall grant rates dropped after the Boston office started hearing cases that had previously been adjudicated by the Newark, NJ office). It is certainly possible that a particular office's culture could be more hostile to asylum seekers, but for me at least, the jury is still out on this point.

What is more clear is the report's analysis of bias against certain countries. When compared to the Newark office, Boston was much more likely to deny applicants from specific countries. For example, the Boston office approved only 4% of applicants from the Democratic Republic of Congo; Newark approved 33% of DRC cases. Boston approved 13% of cases from El Salvador, while Newark approved 25%. And Boston approved 26% of cases from Burundi while Newark approved 83%. These disparities are pretty stark and require further investigation.

As for solutions, the report makes a number of recommendations, including replacing SAOs and AOs who are biased or culturally illiterate, creating audio recordings of asylum interviews, requiring AOs to adjudicate only one case per day, ending the Last In, First Out ("LIFO") system for prioritizing cases, and deciding some cases based mostly on a review of the paper file with only a minimal interview.

Again, I can't say I agree with all these recommendations. I am not sure I agree with terminating officers who are biased, especially given how difficult it is to determine what counts as "bias." I am also not thrilled about reducing AO case loads, as that would further increase the backlog.

On the other hand, I strongly agree that interviews should be recorded and that AOs should not waste time typing every question and answer, and instead should focus on analyzing the case and making a decision. I also strongly favor eliminating the hated LIFO system, which is based on the false premise that prioritizing new cases will somehow magically reduce fraudulent filings.

I also like the idea of adjudicating cases "on the papers" where appropriate. Some cases are obvious grants, and spending hours talking to the applicant is a complete waste of time. For example, I represent a well-known female journalist from Afghanistan, who had received a major award from the U.S. government. Her asylum interview took over five hours. There was no reason for such a long interview given that she is (1) a female human from Afghanistan; and (2) not a terrorist. Her interview should have taken 10 minutes. There are many applicants like this, and if the Asylum Office took a more logical approach to cases that were obvious grants, it could move through the backlog more quickly. As the report notes, many other complex applications are adjudicated largely on the papers, including U visas, Violence Against Women Act cases, and Special Immigrant Juvenile cases. In addition, it is not uncommon for Immigration Judges to grant asylum after reviewing the paper file in an asylum case, as long as the DHS attorney (the prosecutor) also agrees.

Even for cases that are not such obvious grants, the AO could more carefully review the paper filings (at least for cases that include adequate documentation) and narrowly focus the interview on areas of concern. As it is, we spend far too much time discussing addresses where the person lived in the U.S., how the applicant met his lawyer, education and work histories, and a host of other issues that are--at best--tangentially related to asylum eligibility.

I am hopeful that the powers-that-be will take note of this report and consider some of its creative solutions to make the system more efficient--for the Boston office and the entire Asylum Division.

Originally posted on the Asylumist: www.Asylumist.com