The Trump Administration came into office with the express goal of tightening rules related to asylum eligibility. Their efforts have resulted in reduced due process protections for asylum seekers, along with increased evidentiary burdens. Since the advent of the COVID-19 pandemic, the administration’s anti-asylum rule making has gone into overdrive. If recently proposed regulations go into effect, asylum seekers could be denied protection simply for having passed through a third country or for having failed to pay taxes. Worse, these new rules will likely apply retroactively, thus potentially disqualifying some asylum seekers for choices they made years ago. While the asylum process was never easy, all these recent changes have made it much more difficult to successfully navigate the system, especially for those without legal representation. Here, we’ll review some data about asylum grant rates, discuss the process of seeking asylum, and talk about how a lawyer can help.
Unfortunately, it has never been easy to obtain solid statistics about asylum grant rates. One problem is that different asylum cases are adjudicated by different agencies. “Affirmative” asylum cases (where the applicant is inside the United States and initiates a case by submitting an asylum form) and “credible fear” cases (where the applicant presents at the border and requests asylum) are adjudicated by the Department of Homeland Security, by an asylum officer. “Defensive” cases (where the applicant requests asylum as a defense to being deported) are adjudicated by an immigration judge at the Department of Justice. Different agencies track data differently, so we do not have solid statistical information about overall grant rates. But we do have some pretty good data demonstrating that asylum grant rates are trending down and that having a lawyer helps.
According to TRAC Immigration, a nonprofit that collects and analyzes data from our nation’s immigration courts, pro se asylum applicants in 2019 and 2020 were granted asylum in about 13 percent of cases. During the same period, represented applicants received asylum in about 30 percent of cases. So, having a lawyer more than doubles the likelihood of a positive outcome. Also, the data indicates that it is getting more difficult to win asylum. In 2012, about 55 percent of asylum cases (represented and pro se) were granted. Since then, grant rates have dropped—to 41 percent at the beginning of President Donald Trump’s term and to about 25 percent by March 2020.
As noted above, there are two basic paths to asylum: affirmative and defensive. In addition, asylum seekers who arrive at the border or an airport and request protection undergo a credible fear interview, which is an initial evaluation of eligibility for asylum.
In an affirmative case, the applicant completes a form and an affidavit describing his fear of harm, gathers and submits evidence in support of the claim, and is eventually interviewed by an asylum officer. For a defensive case, the applicant typically appears before an immigration judge two times. The first appearance is called a master calendar hearing, which only takes a few minutes. At that stage, the judge determines whether the applicant is “removable” from the United States and what relief she is seeking (asylum and/or other types of relief). The judge then sets a date for the individual hearing (the trial), where the applicant presents her claim for asylum through evidence and testimony. Neither process is fast, and it is common for an asylum case to take several years.
A credible fear interview is more truncated. Most applicants have little or no evidence when they first arrive, and so their testimony becomes more important. If they demonstrate a “credible fear” of persecution in their home country, they are referred to an immigration judge to present a defensive asylum case. If they do not demonstrate a credible fear, they are usually quickly deported from the United States.
Preparing an asylum case—affirmative or defensive—can be challenging. The attorney needs to work with the client to write a detailed affidavit describing the asylum claim. This often involves discussing painful events from the client’s past. Obtaining evidence from other countries can also be difficult, as witnesses are overseas and may be reluctant to risk their safety by writing a letter or sending documents. In preparing a case, the attorney needs to resolve any inconsistencies between the affidavit, evidence, and country conditions, since inconsistencies can lead to a finding that the applicant is “not credible.” Also, the attorney must articulate a legal theory for the case; not everyone who fears harm in the home country is eligible for asylum, and so the attorney must examine the facts and determine the basis for eligibility. Finally, some applicants may be barred from asylum—for example, because they failed to timely file their application—and so the attorney must identify and address any legal bars to asylum.
All this can be a bit daunting, even for a lawyer who specializes in asylum. So, how can a pro bono attorney—who may not be familiar with this area of the law—help?
On this front, the news is good. Most asylum cases are relatively straightforward, and anyone with legal training and a bit of guidance can make a positive difference in the outcome. Also, excellent support and mentoring is available for lawyers who decide to take on a case pro bono. In representing asylum seekers, most pro bono lawyers work with a nonprofit organization, and these organizations are expert at identifying compelling cases and providing support to attorneys who do not specialize in asylum. (For some ideas about where to volunteer, check out these immigration nonprofits.) Finally, while asylum cases can take years (due to government delay), the amount of attorney time needed to properly prepare and litigate a case is quite reasonable. Total prep time for a case is usually between 15 and 30 hours. For an affirmative case, applicants have only one interview, and those usually take three to five hours. Court cases usually involve two hearings: The master calendar hearing might involve waiting around for an hour or two, but the hearing itself requires only about five minutes with the immigration judge. The individual hearing (the trial) typically takes two to four hours. So, all together, the time investment is not terribly burdensome.
Credible fear interviews require even less attorney time because they are not full cases and because they take place within a day or two of the applicant’s arrival in the United States. In some cases, there is simply no time to prepare in advance, and the attorney’s role is simply to make sure that the asylum seeker’s interview is fair. Other times, it is possible to gather country condition evidence or other evidence in advance of the interview.
Having myself represented hundreds of asylum seekers, what keeps me interested are the clients’ stories. Of course, many of these stories are sad, but they are also hopeful. Asylum seekers are survivors. They are fighters who have escaped danger in order to build a better life. Many asylum seekers are well-educated, successful people: politicians; activists for democracy, women’s rights, or LGBTQ rights; interpreters who’ve served with the U.S. military; members of religious or ethnic minorities; and journalists. Asylum seekers I have known tend to be very patriotic towards the United States, and my clients’ faith in the American Dream is a source of constant inspiration for me.
The asylum process today is more difficult than ever. Many applicants with valid claims will be denied and deported unless they have help from an attorney. Equally important, applicants need someone in their corner to answer questions and provide moral support. Representing an asylum seeker pro bono can help change your client’s life. It can also be one of the most rewarding experiences of your legal career.
