Question: Who do you think is more likely to deny an asylum case, an Immigration Judge appointed by a Republican president or an Immigration Judge appointed by a Democratic president?

As far as I can tell, no one has ever researched this question before; so our team of statisticians here at The Asylumist spent the last few months crunching the numbers, and we now have our answer. If you're like me, you might find their conclusion a bit surprising.

The starting point for our team's analysis is--as usual--the data from TRAC Immigration, an organization that has kept a record of asylum denial rates in Immigration Court since 1994. We looked at the numbers for 637 Immigration Judges--288 appointed during Democratic administrations and 349 appointed during Republican administrations.

After doing the math, we found no significant difference between Immigration Judges (IJs) based on whether they were appointed by Republican or Democratic administrations. Over the past three decades, IJs appointed by Democrats denied 65.4% of asylum cases while IJs appointed by Republicans denied 66.7% of asylum cases.

The distribution of asylum denials was also very similar. We can get a sense of this spread by dividing the data in half, with the "easiest" IJs in one half and the "hardest" IJs in the other half. We can then look at the median denial rate for each half, which is called a quartile. In our data set, the first quartile (easiest half) of Democratic IJs denied 51.6% of cases and the first quartile of Republican IJs denied 52.5% of cases. The third quartile (hardest half) of Democratic IJs denied 86.25% of cases and the third quartile of Republican IJs denied 85.3% of cases.

As you can see, there is not much difference between "Republican" and "Democratic" IJs when looked at over the long term. Let's now look at the last few administrations. Immigration Judges from the Trump, Obama, and George W. Bush Administrations have almost the exact same denial rate: President Trump's IJs denied 67.18% of asylum cases, President Obama's IJs denied 67.14% of asylum cases, and President Bush's IJs denied 67.53% of asylum cases. President Biden's judges are doing a bit better with a denial rate of "only" 62.4%. However, since it takes time for TRAC to accrue data, we only have denial rates for 24 of President Biden's IJs (for comparison, we have data for 56 of President Bush's IJs, 199 of President Obama's IJs, and 278 of President Trump's IJs).

While there is no real difference between IJs based on the appointing administration, overall asylum denial rates fluctuate significantly with time. During the post September 11th-era, for example, denial rates in Immigration Court hit an all-time low of 38.4% in December 2011 and an all-time high of 74.3% in January 2019. So what is happening here?

I suspect that the driving factor in these overall denial rates is changes in case law and regulations from one administration to the next. So during the Obama Administration, when the law became less restrictive (and, for example, it became easier for victims of domestic violence to win asylum), overall denial rates declined. When President Trump arrived, his Administration implemented more restrictive rules, and denial rates increased. A secondary factor may be the signals sent from leadership. President Trump's first Attorney General, Jeff Sessions, famously admonished Immigration Judges to stop asylum seekers and "dirty immigration lawyers" from "abusing" the system by presenting "false claims of asylum." Such messaging may have had an impact on how IJs viewed their cases and on what they believed they needed to do to satisfy their leadership.

These longer-term trends in the law affect individual denial rates and perhaps make Joe Biden's IJs look better than they actually are, since those 24 judges have only been on the bench during a more liberal regulatory period. If a more restrictive administration comes into office, and the rules become less favorable for asylum seekers, we would expect President Biden's IJs to deny more cases.

In a sense, all this is positive news. The overall denial rate is less impacted by partisan political appointments than by changes in the law. In other words, IJs are influenced more by case law and regulations (and perhaps the current administration's attitude) than they are by the political views of the administrations that appointed them. Even if we look at this data more cynically and conclude that partisan administrations are simply unable to predict which judicial candidates will fulfill their pro- or anti-immigration goals, IJs are still generally following the law, and not the partisan whims of the administrations that appointed them.

Finally, while overall denial rates are not affected by partisan appointments, individual judges can be quite partisan, or at least very biased. As I have discussed previously, some judges deny almost all their asylum cases, regardless of the merits and regardless of the law. A much smaller number of IJs grant asylum in almost all cases. Where particular IJs are making decisions outside the main stream, we need to think about why, and determine whether corrective measures--such as additional training--are needed. While there certainly are unfair judges, we can take some comfort in the fact that partisan appointments are generally not the cause of unjust outcomes in Immigration Court.

Special thanks to Tiana Go and Sophia Joseph for their help with this article.

Originally posted on the Asylumist: