The Washington PostDemocracy Dies in Darkness

Will Trump’s new rules make it harder to get asylum in the U.S.? That will vary dramatically from one judge to the next.

Chaldean Americans protest against the seizure of family members by Immigration and Customs Enforcement agents during a rally outside the Mother of God Chaldean church in Southfield, Mich., on June 12, 2017. (REUTERS/Rebecca Cook)

In the past few days, Immigration and Customs Enforcement (ICE) agents arrested nearly 200 Iraqi refugees in Michigan and ordered them deported.  These mostly Christian Iraqis are seeking asylum in the United States, and they argue that they will face religious persecution and possibly death if returned to Iraq. They have been denied a hearing in immigration court. A federal judge has intervened. The judge’s decision should be released this week.

The case appears to be the result of new Trump administration rules intended to make it harder to secure political asylum. The new guidelines order ICE agents to more aggressively push for deportation. At the same time new judges, selected by Attorney General Jeff Sessions, are being added to the backlogged federal immigration courts that handle asylum claims.

It’s too early to tell how the new rules will affect asylum seekers, but the results are unlikely to help them.

So how does someone go about seeking asylum in the United States — and what are the chances of receiving it? On paper, the process is clear. In practice, it varies dramatically from one part of the country to another — and even from one judge to another.

What is the process for securing asylum?

To be granted political asylum, applicants must prove that they have a credible fear of death or torture if returned to their home country. They must also meet at least one of the five conditions specified under the 1951 Refugee Convention, which the United States signed in 1967: persecution in one’s own country because of race, religion, nationality, political opinion or membership in a social group. Economic conditions, crime and violence by non-state actors — such as criminal gangs — do not qualify a person for asylum.

To receive asylum, the applicant must apply within one year of arrival, which is called an “affirmative application,” or, after being ordered deported, called a “defensive application.” In either case, applicants must produce the evidence to prove persecution. Applicants have a right to have a lawyer, but the U.S. government doesn’t have to provide that lawyer if an applicant can’t afford one or find one pro bono.

In affirmative cases, a Department of Homeland Security asylum officer interviews the applicant. Less than a third of such cases are granted asylum at this level. The Trump administration wants DHS to approve still fewer. If asylum is denied, the officer issues a removal order for the applicant and refers the case to a federal immigration court. Defensive applications skip the asylum officer and are immediately referred to immigration courts.

Trump’s travel ban is built on a law meant to ‘protect’ the U.S. from Jews and communists

Immigration courts aren’t like the more familiar federal courts, which are part of their own branch of government and whose judges, once confirmed by the Senate, serve for life. Rather, immigration courts are operated by the Justice Department; the attorney general appoints the judges and DHS officers serve as prosecutors. There are 54 immigration courts, which have from two to 33 judges. At the end of 2016, more than 270 judges served on these courts. They are governed mostly by administrative rules handed down by the executive branch and less so by federal case law.

New Trump rules strongly encourage ICE officers to reject and refer applicants for immediate deportation if they don’t fit the criteria or don’t have a “well-founded” fear of returning to their home country, or both. They will often reject out of hand asylum claims from countries deemed friendly to the United States, regardless of whether that country respects human rights.

Not all judges rule alike

Using data from the Syracuse TRAC immigration judge reports, I examined the performance of immigration courts and judges for the five years between 2011 and 2016. I included only judges who handled at least 100 asylum cases during this period, giving me a sample of 267 judges across 54 courts. On average, judges handled about 400 cases each, ranging from a low of 108 cases over the five-year period to a high of 2,240 cases.

Here’s what I found.

First, despite the law’s clear criteria, asylum denial rates vary widely by judge. Of the 115,500 cases studied, judges denied asylum in just under half the cases. But that is only the average. One judge denied asylum in nearly every case; another, almost never.

Second, as the figure below shows, asylum denial rates vary by region. Among New York’s 31 judges, the median denial rate was only 14 percent. However, the seven Houston judges denied 86 percent of asylum requests. One immigration attorney told me that the best advice she can give an asylum applicant living in Houston is to move to an area of the country such as Arlington, Va., where the chances of being granted asylum are much higher.

Third, approval rates across judges who serve on the same state court vary dramatically — even though cases are assigned randomly. One San Francisco judge denied asylum in nearly every case; another denied less than one-fifth of the cases. I found that kind of variation within almost all of the immigration courts.

Three factors affect the likelihood that someone will be granted asylum.

One is simple: Having a lawyer makes you more likely to prevail.

Second is what region an applicant comes from. For example, asylum claimants from Central American countries are much more likely to be denied asylum than those from other parts of the world, such as China. That may be in part because they tend to apply for asylum in a region with less sympathetic courts, such as the Southwest, and because there they are less likely than others to have access to legal counsel.

Third is the gender of the judge. As you can see in the figure below, male judges are 20 percent more likely to deny asylum than are female judges. Interestingly, women appointed by Republican attorneys general rule more similarly to women appointed by Democrats than to their male fellow Republicans. The same is true for female judges appointed by Democratic attorneys general.

Women also appear to be more likely to grant asylum in cases involving families with minor children, at least according to a great deal of anecdotal evidence from immigration lawyers.

Here’s what doesn’t make a difference: a judge’s background, past employment, law school attended or the party of the president who appointed them.

Is democracy on the decline? Not as much as some pundits want you to believe.

What difference will the new Trump rules make?

As the Trump administration’s new rules are implemented, ICE agents are likely to deny more asylum cases — pushing them into the overflowing immigration courts. We don’t know whether the newly appointed immigration judges will differ significantly from their colleagues. Presumably they will be tougher on asylum seekers. But because judges seem to rule based on their own proclivities, they could well thwart or even reverse the impact of the new rules.

We will find out how easy – or hard – it is for one administration to change asylum seekers’ fates.

Richard Vengroff is professor emeritus of political science at the University of Connecticut and an accredited immigration representative with the Community Action Committee of Cape Cod and the Islands.