In Response to the A.G.'s Claims Regarding Asylum Fraud

In a recent address at EOIR headquarters, Attorney General Jeff Sessions blamed the immigration courts’ present backlog of over 600,000 cases on asylum fraud.  In order to lend support to his claim, Sessions conveniently omitted some important facts.

First, Sessions somehow failed to mention that after gaining majority control in the 2010 midterm elections, Republicans in Congress forced a hiring freeze, followed by a “sequester” requiring government-wide budget cuts.  EOIR was not able to hire immigration judges or other support staff, while suffering personnel departures.  In 2015 testimony to Congress by EOIR’s then director, the late Juan Osuna attributed much of the 101 percent increase in the immigration court’s backlog over the preceding five years to the hiring freeze.  Furthermore, the sequester’s budget cuts rendered EOIR unable to replace obsolete computer servers, which resulted in a total system failure in 2014 which wreaked havoc on the courts for more than 5 weeks.  These Republican-created problems coincided with the 2014 surge along the southern border of legitimate refugees fleeing increased violence in the Northern Triangle region of El Salvador, Guatemala, and Honduras. The 2014 violence was followed by a 70 percent increase in the murder rate in El Salvador the following year, which, according to a January 2016 article in The Guardian, made it the most dangerous peacetime country in the world.

EOIR publishes a statistical yearbook each year; the most recent is for fiscal year 2016.  The report divides asylum claims into affirmative and defensive categories.  Defensive applications are filed by individuals who find themselves in removal proceedings facing deportation from the U.S.  Some are detained; some are not represented by attorneys.  The majority of these individuals are eligible to apply for only one form of relief: asylum.  Given the fact that most people in removal proceedings would like to remain in the U.S. and avoid deportation, it is not surprising that a number of these individuals file applications for the only form of relief that might keep them here, even if the likelihood of success is a longshot.  Nevertheless, in FY 2016, 31 percent (i.e. nearly a third) of these defensive claims for asylum were granted by immigration judges, according to EOIR’s own numbers.

The second category of asylum applicants listed in EOIR’s annual report consists of affirmative applicants.  These are individuals who are not detained or in imminent danger of deportation.  Nevertheless, these individuals decided to come forward and apply for asylum, bringing themselves to the attention of DHS and risking deportation should their claims be denied.  In FY 2016, EOIR reported that 83 percent of such claims were granted by immigration judges.  It should be noted that affirmative applicants are first interviewed by asylum officers with USCIS, a component of DHS.  DHS grants asylum to those applicants it deems approvable, and refers the rest to EOIR.  So if the cases granted by DHS are added to the EOIR numbers, the grant rate is actually higher.

In removal proceedings, asylum applications are contested by DHS trial attorneys, who nearly always subject asylum applicants to detailed cross-examination..  DHS attorneys may send evidence submitted by asylum applicants for consular investigation in the country of origin, or for forensics examination to determine if there is evidence of fabrication or alteration. The DHS attorneys may also check other databases for evidence that may conflict with the information provided in the asylum application.  DHS may offer any results that might indicate fraud into evidence.  Sessions falsely claims that “there is no way to reasonably investigate the claims of an asylum applicant in their own country;” in my 12 years as an immigration judge, I was presented with the results of many such in-country consular investigations.  I also commonly received reports and heard testimony from forensics examiners employed by DHS.

In addition, in response to reports of fraud, Congress included provisions in the 2005 REAL ID Act that gave immigration judges greater authority to find that asylum applicants lacked credibility.  The legislation also made it more difficult to establish asylum eligibility by requiring that one of the five statutorily protected grounds (i.e. race, religion, nationality, membership in a particular social group, or political opinion) be “one central reason” for the feared persecution.  Also, the BIA has spent the last 11 years issuing precedent decisions that increase the difficulty of establishing asylum eligibility.

And in spite of all of the above, immigration judges last year found more than 8 of 10 affirmative asylum applicants to be legitimate.  The IJs granting these claims are employees of the Attorney General’s own Department of Justice.  Immigration Judges are appointed by the Attorney General, and come from a variety of backgrounds.  Many previously worked on the enforcement side; many are Republican appointees.  Sessions claims that “vague, insubstantial, and subjective claims have swamped our system.”  If true, how are more than 80 percent being granted by judges that he and his predecessors appointed?

So then where is the evidence of widespread asylum fraud supporting Sessions’ assertion?  What support does he provide in claiming that “any adjudicatory system with a grant rate of nearly 90 percent is inherently flawed?”  Why would that be true if the applicants in question chose to come forward and apply for asylum; their claims were screened and prepared by competent attorneys; and where the immigration laws contain significant penalties for filing fraudulent claims, including a lifetime bar on any and all immigration benefits?

About three years ago, while I was the country conditions expert for EOIR, I was one of a number of EOIR employees invited by DHS to attend a training session on country conditions in the Northern Triangle region of El Salvador, Nicaragua, and Honduras.  The presenters described horrific conditions in the lawless Northern Triangle, in which murders occur with impunity, boys as young as 7 years old are recruited for gang membership, 11 year old girls are raped, and their fathers killed if they try to intervene.  The presenters concluded that in spite of the danger, parents are making very informed decisions in paying to have their children smuggled north under dangerous conditions, considering the horrible conditions at home.  Remember, this was not a program put on by Amnesty International; this was DHS training its asylum officers.  I enlisted one of the presenters to repeat his presentation for the immigration judges at their training conference the following year.  Is Sessions somehow unaware of this information when he portrays such claims as fraudulent?

In support of his fraud claim, Sessions stated that many who were found to have a credible fear of persecution and paroled into the U.S. did not subsequently apply for asylum.  However, he neglected to mention that many of those parolees are unaccompanied children.  He also did not mention that many parolees cannot afford attorneys, and that pro bono groups’ limited resources are completely overwhelmed by the number of asylum seekers, and that those dedicated pro bono programs who have attempted creative approaches such as providing limited pro bono assistance to pro se applicants have been hampered by EOIR itself, which issued a “cease and desist” letter to at least one such program, the highly regarded Northwest Immigrant Rights Project.

Sessions referenced a 2014 investigation resulting in the arrest of 8 attorneys for engaging in asylum fraud.  There are thousands of immigration attorneys in the United States.  The overwhelming majority are honest, hardworking and highly respectful of our laws.  Since departing the government I been inspired by the seriousness with which private immigration attorneys treat asylum matters.  When attorneys speak of a client being granted asylum, they nearly always describe years of preparation, a lengthy hearing, well-researched legal theories, and loads of supporting evidence, often including expert witnesses.  These are not half-hour hearings; they are exhausting, contested matters that can last many hours.  The attorneys engaged in such work should be applauded for their efforts.  And I can’t express enough admiration for the hundreds of immigration judges who, in spite of the pressure created by a daunting workload and biased remarks by the Attorney General they report to, nevertheless continue to afford due process and render fair and impartial judgement on those appearing before them.  

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

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