Divergent Asylum Outcomes

The Government Accountability Office (GAO) released a report on November 14 entitled “Asylum: Variation Exists in Outcomes of Applications Across Immigration Courts and Judges.” More than half a million asylum applications were reviewed to arrive at the conclusion in the title, i.e., that grants of asylum varied based on the court and the judge. However, the major factors influencing the outcome of the plea to avoid deportation depended on:

1.  Whether the plea was affirmative (made by the applicant while not already in deportation proceedings – usually upon arrival in the country) or defensive (made after being in deportation proceedings). Or
2. Whether the asylum applicant was represented by a lawyer.

If the applicant was making a defensive plea, the likelihood of a favorable decision was lower, and if the applicant had a lawyer, the likelihood of an asylum grant was increased.

The American Immigration Lawyers Association (AILA) has long argued that all aliens in deportation proceedings should have access to a lawyer paid, if need be, by the U.S. taxpayers. Lately the push has been to have lawyers paid by the government for all minors in deportation proceedings. This newly released GAO report will fuel the arguments of AILA and the support groups for illegal aliens. They will argue that the higher success rate of asylum applicants represented by lawyers proves that those without lawyers are unfairly denied justice in the immigration courts.

But, what is lacking in the GAO report is any information on the type of asylum claim. Those making an affirmative claim generally are asserting that they have been or will be subjected to persecution if they are deported to their home country. It may be because of their race or religion or tribal identity or political activism – the type of claims that led to international agreement on standards for granting asylum. Defensive claims, on the other hand, often are based on more personal circumstances, e.g., spousal abuse, or on claims that the deportation would cause extreme hardship to family members in the United States who are U.S. citizens or legal residents. These latter claims are much more based on value judgements and likely to be enhanced by counsel from a lawyer.

While the advocates for illegal aliens will continue to insist that deportation is un-American, unfair or draconian, and cite the GAO report in their efforts to protect the illegal aliens from deportation, there is a very different perspective that needs to be asserted. Instead of the argument that the higher deportation rates in some jurisdictions and by some judges demonstrate an unjust prejudice against the asylum applicants, it is equally – or more likely – that the divergence in approving asylum applications points to judges who are more influenced by the unsubstantiated claims of hardship and circumstances asserted by the illegal aliens whose pleas are honed by immigration attorneys.