I recently saw a shocking statistic: 76% of cases denied by the Asylum Office and referred to Immigration Court were granted by Immigration Judges. If this number is accurate (and the source--TRAC Immigration--has always been very reliable), it means that IJs essentially overrule Asylum Officer denials in 3 out of 4 cases. Put another way, Immigration Judges are finding that Asylum Officers make the wrong decision in most of their cases. Can this really be true? What's going on here?

First of all, while the 76% figure is from Fiscal Year 2022, the problem of Immigration Judges "reversing" Asylum Officer decisions is not new. Indeed, I wrote about the same issue way back in 2011. At the time, for the period from FY 2006 through FY 2010, IJs "reversed" Asylum Officer decisions between 51% and 61% of the time. This means that the disparity between the Immigration Courts and the Asylum Offices is worse today than it was prior to 2011, though the largest disparities seem to have been occurring in about 2016, when IJs were "reversing" AO decisions more than 80% of the time (and by the way, I am putting "reversing" in quotes because the IJ's are not really reversing the Asylum Officers; they are making a new and different decision, but the effect is basically to reverse the AO's decision).

Let's look at some possible explanations for what is happening with these numbers.

Perhaps we can find one clue in the most recent TRAC data. In FY 2021, the "reversal rate" was 66% and it increased to 76% in FY 2022. That is a big jump in only one year. Maybe the increase can be explained by changes in the law between the Trump and Biden Administrations. During the Trump Administration--which, as you may recall, was hostile to asylum seekers--a series of regulatory changes and precedential administrative decisions made it more difficult to win asylum. Many of these changes were reversed by the Biden Administration (which is awful to asylum seekers in other ways). So perhaps the changes in the law account for the higher level of "reversals" in FY 2022. Put another way, Asylum Officers denied cases when the law was tougher, but by the time those cases reached the Immigration Court, the legal environment was less harsh and the IJs were more likely to grant the cases. If this explanation is correct, we can expect the "reversal rates" to decline as new Asylum Office cases are decided under the more favorable law. This explanation may also make AOs feel better, since their decisions are not being overturned due to mistakes, but rather due to changes in the law.

Another possible explanation may be that certain Asylum Offices are accounting for a large number of "reversals." For example, the New York Asylum Office has the highest denial rate in the nation--according to the most recent data (from FY 2021), the New York office approves only 7.4% of cases. The New York Immigration Court, which hears cases referred from the New York Asylum Office, has an overall grant rate that is much higher than average. The NY court approves 66% of cases, compared to the national approval rate in Immigration Court, which is only about 36.2%. Maybe one reason that the court approves so many cases is that its local Asylum Office frequently "gets it wrong."

A third explanation for the disparities may be that affirmative asylum seekers who get referred to Immigration Court are more likely to have lawyers. This is the explanation favored by TRAC, and it may simply be that affirmative asylum seekers have been in the U.S. longer and are more able to afford lawyers, and this improves their outcomes.

I guess a final possible explanation is that Asylum Officers stink at their job. A recent law review article details problems with the Asylum Offices (with a focus on the Boston office), but I am not fully convinced by its conclusions. I suppose if the Asylum Officers are doing a poor job, it is possible that Immigration Judges are correcting their errors. Frankly, though, this seems far fetched, given the inconsistent decision-making in our nation's Immigration Courts (one could also argue that the Asylum Officers are getting it right and the IJs are wrong, but since the judges have the final say, this argument does not get you very far).

Overall, I have low confidence in each of these explanations, and I have not seen any convincing argument that explains the disparate grant rates between the Asylum Offices and the courts. In practical terms, however, the reason for the high "reversal rate" may be irrelevant. The real question is, What does all this mean for asylum seekers?

The most important implication of the 76% "reversal rate" is that asylum seekers who receive a denial from the Asylum Office (which they politely call a "referral") should not lose hope. There is a good chance that you will receive a better decision in Immigration Court.

Another take-away is that Asylum Office cases are winnable, and maybe affirmative asylum seekers should be trying harder to win in the first instance, before they are sent to court. What does this mean? We do not have data on attorney representation rates at the Asylum Offices, but in Immigration Court, attorneys statistically increase the likelihood of a case being approved (though as I have written, there are some caveats to this data). So maybe if asylum seekers more frequently used lawyers to prepare their cases at the Asylum Office, the approval rates would go up.

In the end, I am left with more questions than answers. I have a nagging feeling that something is wrong with the data, since it is difficult for me to believe that IJs "reverse" so many Asylum Office referrals. I do think this disparity is worth exploring. Diagnosing and addressing the problem could result in more efficient and fair adjudication of cases, which would improve "the system" and bring some relief to asylum seekers in that system.

Originally posted on the Asylumist: www.Asylumist.com