U.S. Asylum System:

Significant Variation Existed in Asylum Outcomes across Immigration Courts and Judges

GAO-08-940: Published: Sep 25, 2008. Publicly Released: Sep 25, 2008.

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Each year, tens of thousands of people who have been persecuted or fear persecution in their home countries apply for asylum in the United States. Immigration judges (IJ) from the Department of Justice's (DOJ) Executive Office for Immigration Review (EOIR) decide whether to grant or deny asylum to aliens in removal proceedings. Those denied asylum may appeal their case to EOIR's Board of Immigration Appeals (BIA). GAO was asked to assess the variability of IJ rulings, and the effects of policy changes related to appeals and claims. This report addresses: (1) factors affecting variability in asylum outcomes; (2) EOIR actions to assist applicants and IJs; (3) effects associated with procedural changes at the BIA; and (4) effects of the requirement that asylum seekers apply within 1 year of entering the country. GAO analyzed DOJ asylum data for fiscal years 1995 through mid-2007, visited 5 immigration courts in 3 cities, including those with 3 of the top 4 asylum caseloads; observed asylum hearings; and interviewed key officials. Results of the visits provided additional information but were not projectable.

In the 19 immigration courts that handled almost 90 percent of asylum cases from October 1994 through April 2007, nine factors affected variability in asylum outcomes: (1) filed affirmatively (originally with DHS at his/her own initiative) or defensively (with DOJ, if in removal proceedings); (2) applicant's nationality; (3) time period of the asylum decision; (4) representation; (5) applied within 1 year of entry to the United States; (6) claimed dependents on the application; (7) had ever been detained (defensive cases only); (8) gender of the immigration judge and (9) length of experience as an immigration judge. After statistically controlling for these factors, disparities across immigration courts and judges existed. For example, affirmative applicants in San Francisco were still 12 times more likely than those in Atlanta to be granted asylum. Further, in 14 of 19 immigration courts for affirmative cases, and 13 of 19 for defensive cases, applicants were at least 4 times more likely to be granted asylum if their cases were decided by the judge with the highest versus the lowest likelihood of granting asylum in that court. EOIR expanded its programs designed to assist applicants with obtaining representation and has attempted to improve the capabilities of some IJs. EOIR has conducted two grant rate studies and was using information on IJs with unusually high or low grant rates, together with other indicators of IJ performance, to identify IJs who might benefit from additional training and supervision. However, EOIR lacked the expertise to statistically control for factors that could affect asylum outcomes, and this limited the completeness, accuracy, and usefulness of grant rate information. Without such information, to be used in conjunction with other performance indicators, EOIR's ability to identify IJs who may need additional training and supervision was hindered. EOIR assigned some IJ supervisors to field locations to improve oversight of immigration courts, but EOIR has not determined how many supervisors it needs to effectively supervise IJs and has not provided supervisors with guidance on how to carry out their supervisory role. Following streamlining (procedural changes) at the BIA in March 2002, BIA's appeals backlog decreased, as did the number of decisions favoring asylum seekers. Such decisions were more than 50 percent lower in the 4 years after streamlining compared to 4 years prior. The authority to affirm the IJ's' decisions without writing an opinion was used in 44 percent of BIA's asylum decisions. In June 2008, EOIR proposed regulatory changes to the streamlining rules, but it is too soon to tell how they will affect appeals outcomes. Data limitations prevented GAO from determining the (1) effect of the 1-year rule on fraudulent applications and denials and (2) resources adjudicators have spent addressing related issues. EOIR lacked measures of fraud, data on whether the 1-year rule was the basis for asylum denials, and records of time spent addressing such issues. Congress would need to direct EOIR to develop a cost-effective method of collecting data to determine the effect of the rule.

Status Legend:

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  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To address disparities in asylum outcomes that may be unwarranted and to facilitate EOIR's goal of identifying immigration judges who may benefit from supplemental efforts to improve their performance, EOIR's Chief Immigration Judge should utilize the information from our multivariate statistical analyses to identify which immigration judges remained many times more or less likely to grant asylum than others, after accounting for claimant and immigration judge characteristics.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

    Status: Closed - Implemented

    Comments: In September 2008, we reported that there were large disparities in asylum grant rates across immigration judges, after statistically controlling for a variety of characteristics of asylum claimants and immigration judges. Our analyses used more comprehensive statistical procedures, examined a longer period of time, and had data on more potential explanatory factors than analyses of asylum grant rates conducted in 2006 and 2008 by the Executive Office for Immigration Review (EOIR). As a result, we recommended that in order to address disparities in asylum outcomes that may be unwarranted and to facilitate EOIR's goal of identifying immigration judges who may benefit from supplemental efforts to improve their performance, EOIR should utilize the information from our multivariate statistical analyses to identify which immigration judges remained many times more or less likely to grant asylum than others, after accounting for claimant and immigration judge characteristics. In response, in November 2008, EOIR officials met with GAO to obtain our list of 17 immigration judges with disparate asylum grant rates, added these judges to the list of 21 immigration judges EOIR had identified as "outliers" in terms of their asylum grant rates for the years 2004 through 2008, and conducted further analyses to attempt to identify whether these judges differed from other judges in terms of two factors that EOIR stated were within its managerial control--professional conduct and legal performance. In addition, to improve the performance of immigration judges who appeared to have unacceptable patterns in their asylum decisions, EOIR conducted training on asylum disparities for all immigration judges at EOIR conferences held in 2008 and 2009. EOIR also conducted analyses comparing asylum grant rates for outlier judges before and after the 2008 training. We believe that EOIR's collective efforts have been responsive to the intent of our recommendation and this recommendation is closed as implemented.

    Recommendation: To address disparities in asylum outcomes that may be unwarranted and to facilitate EOIR's goal of identifying immigration judges who may benefit from supplemental efforts to improve their performance, EOIR's Chief Immigration Judge should identify and examine cost-effective options (e.g., developing an inhouse capability or hiring a private contractor) for acquiring the expertise needed to perform periodic multivariate statistical analyses of immigration judges' asylum decisions.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

    Status: Closed - Implemented

    Comments: Executive Office for Immigration Review (EOIR) officials met with GAO in November 2008 to determine what types of skills were necessary to perform multivariate analyses such as those GAO conducted using data for the period from October 1994 to April 2007 in the subject report. EOIR requested and secured funding in fiscal year 2011 to hire a contractor to work with EOIR's Office of Planning, Analysis and Technology to replicate and update the multivariate analyses from GAO's study for the period from May 2007 through August 2011. A report summarizing the analyses was completed on December 21, 2011. According to EOIR, it has the information necessary to contract for the services and it is poised to replicate the process should it be necessary or desirable to do so in the future. EOIR's efforts have been responsive to our recommendation and this recommendation is closed as implemented.

    Recommendation: In addition, to more fully respond to the Attorney General's directive to strengthen management and oversight of immigration courts, EOIR's Chief Immigration Judge should develop a plan for supervisory immigration judges, to include an assessment of the resources and guidance needed to ensure that immigration judges receive effective supervision.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

    Status: Closed - Implemented

    Comments: In response to our recommendation, the Executive Office for Immigration Review (EOIR) analyzed the duties and tasks performed by EOIR's Assistant Chief Immigration Judges (ACIJs), who oversee EOIR's Immigration Judges (IJs) in immigration courts across the country. EOIR assessed the skills, knowledge, and abilities needed for the ACIJ position, and determined what guidance and training was needed for ACIJs to enable them to provide effective supervision of IJs. EOIR developed two products in response to our recommendation, an ACIJ Handbook, which was finalized in May 2010, and an ACIJ Continuing Education plan, which was finalized in November 2009. Training for ACIJs, based on the Continuing Education plan, was conducted May 17-21, 2010. EOIR's efforts have been responsive to our recommendation and this recommendation is closed as implemented.

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