Asylum Cases Referred to Immigration Court Too Often

In order to obtain asylum, an individual in the United States can apply affirmatively before the Asylum Office (“the AO”). The AO will interview the applicant to assess their asylum claim and then either grant the applicant asylum or refer their case to immigration court for removal proceedings, during which the applicant can reassert their asylum case as a defense against removal.

According to Human Rights First (“HRF”), an international human rights organization, in Fiscal Year 2021, 68% of asylum cases referred to immigration court by the AO were subsequently granted protection.[1] With nearly 70% of claims being granted in FY2021, this represents a clear and apparent waste of judicial resources.

The data, gathered through analyzing Syracuse University’s Transactional Records Clearinghouse[2], provided additional insights into just how unnecessarily the AO scrutinizes asylum claims. For instance, HRF cited almost 45,000 pending asylum applicants from China, Russia, and Venezuela which were referred to court from the AO. The approval rates for asylum claims coming from these countries with known human rights issues sit at 81%, 86%, and 73% respectively.[3] Yet, despite such high rates of legitimate claims, the AO continues to refer thousands of these cases to court unnecessarily.

This issue has only worsened in recent history, the AO’s referral rate has increased from FY 2015 to FY 2019 by 17%. With this increased referral rate, almost 30% of pending asylum cases in immigration court originated at the AO as of November 2021.[4] For many people with pending asylum cases, they continue to wait years for a final decision.

Our asylum system includes an affirmative application process with the AO as a mechanism to reduce the load placed on immigration courts. Asylum claims are fact specific, but they are often made by people that do not speak English as their first language. We, therefore, expect the AO to analyze claims by conducting appropriate research while still understanding that minor inconsistencies can be attributed to errors in translation. If the AO continues to regularly refer strong asylum cases to the courts, they have failed their entire purpose.