The Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA), has issued its latest statistics for removal-related cases. Surprisingly, the grant rate for asylum applications filed by aliens apprehended at the border and subject to “credible fear” interviews fell in FY 2021; curiously, so did the denial rate. Pandemic-related closures took a toll on completions last fiscal year.
Expedited Removal and Credible Fear. Briefly, under section 235(b)(1) of the Immigration and Nationality Act (INA), aliens encountered at the border or ports of entry without documents to enter the United States or with fraudulent entry documents — including illegal migrants — are subject to “expedited removal”. That allows DHS to remove those aliens without placing them into removal proceedings before an immigration judge (IJ).
There is an exception to expedited removal for aliens who request asylum or claim a fear of harm if they were to be returned home. Those aliens are interviewed by asylum officers (AOs) from USCIS, who assess whether they have a “credible fear” of persecution. Credible fear is a screening standard used to determine whether the alien may be eligible for asylum.
If an alien receives a “positive credible fear determination”, the alien is placed into removal proceedings under section 240 of the INA to apply for asylum. If the alien receives a “negative credible fear determination”, the alien can seek a “credible fear review” from an IJ.
Between December 1, 2020, and December 1, 2021, AOs received 57,405 credible fear cases, and in 38,713 cases, credible fear was found — a credible fear approval rate of approximately 67.4 percent. On review in FY 2021, IJs found credible fear (reversing a negative credible fear determination by an AO) in roughly 29.3 percent of cases.
Thus (and extremely roughly) about 72 to 74 percent of aliens who claim a fear of return after they are stopped at the borders and the ports are found to have credible fear. A better estimate is not possible because the reporting periods do not overlap, and because there will be cases in the pipeline from one reporting period to another.
Grant Rates for Aliens in Cases Originating with a Credible Fear Claim. As noted, aliens who receive a positive credible fear determination are placed into removal proceedings before IJs to apply for asylum and the associated protections of statutory withholding of removal and withholding or deferral of removal under the Convention Against Torture.
An alien granted asylum is placed on a path to citizenship; an alien granted withholding or deferral is ordered removed, but actual removal is barred to a specific country or countries, though few ever leave.
In FY 2021, IJs granted asylum to 2,417 aliens in removal cases that originated with a credible fear claim. That equals out to 14.28 percent of all such cases completed by IJs last fiscal year. That is the lowest grant rate for removal cases that started with a credible fear claim since FY 2017, when it hovered around 14 percent. By contrast, the grant rate was more than 16.5 percent in FY 2020.
It is also the lowest number of grants since FY 2015, when IJs granted asylum in 1,950 cases that originated with a credible fear claim.
Denials, Closures, and “Other” Rates in Cases Originating with a Credible Fear Claim. Here is the other side of the story.
The denial rate for such cases in FY 2021 was just over 22 percent. That is the lowest denial rate since FY 2016, when just over 18.2 percent of all asylum applications originating with a credible fear claim were denied. By contrast, the denial rate in FY 2020 was almost 37.5 percent.
How could the grant rate and the denial rate both fall? It’s because such cases do not present IJs with a binary choice between granting asylum or denying it.
Alien respondents can apply for other relief, withdraw applications, or never file an asylum application at all. Or ICE attorneys — who represent the government in removal proceedings — can move to terminate or administratively close the case (in which case, as explained below, it is simply shelved). It appears that each of these things occurred last fiscal year.
In 6,505 cases — 38.42 percent of the total — no asylum application was ever filed. That roughly jibes with a separate EOIR statistic showing that an asylum application was filed in 65 percent of all cases referred after a credible fear claim between FY 2008 and FY 2021.
That means that over that 14-year period, no asylum application was filed in 35 percent of cases, even though those aliens were placed into proceedings to apply for asylum. Unfortunately, EOIR does not reveal how many of those cases between FY 2008 and FY 2021 resulted in in absentia orders of removal when the aliens failed to appear, but that was likely true in most of those cases. I will explain the in absentia rate for FY 2021 below.
There is also a catch-all “other” rate, which includes cases that were abandoned, not adjudicated, withdrawn, or “other”. More than 3,680 IJ decisions in cases that originated with a credible fear claim fall within this category, 21.75 percent of the total. That is far and away the highest “other” rate for such cases recorded (records go back to FY 2008).
By comparison, the “other” rate was about 12 percent in FY 2020 and as low as 7 percent in FY 2011. At least some of those cases were terminated by ICE in accordance with guidance issued by the head of the agency’s legal branch in May.
In a June post, I explained why terminating removal proceedings for facially removable aliens is a bad idea, but basically it is indicative of the “non-enforcement” regime that the Biden administration has instituted since day one.
Cases in removal proceedings should be adjudicated expeditiously, until the alien has been granted protection or relief or, conversely, ordered removed. That is not how the current DHS sees it, however.
In that vein, 598 cases that originated with a credible fear claim were administratively closed in FY 2021 — just over 3.5 percent of the total. The BIA has described administrative closure as “a procedural tool created for the convenience of the Immigration Courts and the Board.” As it has explained:
Administrative closure, which is available to an Immigration Judge and the Board, is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket. In general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.
That may sound reasonable in the abstract, but such closures are rarely “temporary” in the concrete. As EOIR admits, “the average length of time a case has been administratively closed” was about 17 years at the end of FY 2021, and “the median length of time” cases have been closed was about 12 years.
Nor has administrative closure been used sparingly. As of the end of FY 2021, almost 305,000 cases were in limbo under administrative closure. Almost all involve aliens who are removable, but for whom removal has been put off indefinitely.
I am no fan of administrative closure for these and other reasons I have explained numerous times in the past. Then-Attorney General (AG) Jeff Sessions ended administrative closure in May 2018, only to have it resurrected by AG Merrick Garland in July. That is why the FY 2021 administrative closure rate for cases that originated with a credible fear claim (again, 3.5 percent-plus) is more than eight times as high as it was in FY 2020 (when .42 percent of those cases were administratively closed).
Pandemic-Related Closures Have Affected Cases that Originated with a Credible Fear Claim. The final point that is clear from the EOIR statistics is that pandemic-related closures of many non-detained immigration courts in FY 2021 adversely affected the ability of IJs to issue decisions in cases that originated with a credible fear claim.
Just fewer than 17,000 such cases were completed in FY 2021, compared to more than 33,600 in FY 2020 and 55,400-plus in pre-pandemic FY 2019.
EOIR did not resume non-detained hearings at some large immigration courts (including Dallas, Houston, and three courts in New York City) until July 6. That means that a large number — if not the majority — of cases that originated with a credible fear claim were in the limited number of immigration courts in which aliens are detained.
That is almost definitely the reason why the in absentia rate for removal cases generally was so low in FY 2021. According to EOIR data, just 8,381 aliens were ordered removed in FY 2021, fewer than one-tenth the number who were ordered removed when they failed to appear in FY 2020 (just over 87,000). Aliens in detention must appear in court; aliens who are released can show up or not.
That was true of aliens whose cases originated with a credible fear claim, as well. Just 1,025 were ordered removed when they failed to appear in FY 2021, compared to 7,321 in absentia orders in such cases in FY 2020 (five months of which was affected by pandemic-related shutdowns) and 17,845 in FY 2019.
Regrettably, that will put more pressure on IJs and ICE attorneys to terminate and administratively close the remaining non-detained cases that originated with a credible fear claim, as IJs catch up on cases as immigration courts reopen. That, of course, will give greater incentives to foreign nationals to enter the United States illegally in the future, in the hope that their cases will be terminated or shelved, as well, allowing them to live in the United States indefinitely.
Aliens who entered the United States illegally after the arbitrary date of October 31, 2020, are one of the few “priorities” that DHS Secretary Alejandro Mayorkas has designated for immigration enforcement as “Threats to Border Security”). ICE attorneys, therefore, should be allowed to push forward with removal cases involving aliens apprehended at the border who claim credible fear after that date.
Whether the immigration courts actively complete those cases is a different matter. ICE is under a mandate to consider any number of “mitigating and extenuating” factors in those cases that have nothing to do with whether the alien respondent is removable. The only way that DHS will be able to gain any control over the border is to ensure that illegal entry has swift consequences, meaning grants of protection to aliens who merit them, and removal for the rest.