November 5 , 2007
Asylum Variations in Immigration Court
Asylum is
an important protection available to aliens who are unable or unwilling to
return to their country of nationality because of past persecution or a
well-founded fear of future persecution. The Executive Office for Immigration Review (EOIR), an office within the
Department of Justice, is responsible for deciding asylum applications filed by
aliens who are in removal proceedings. An immigration judge decides the case in the first instance. That decision may then be appealed to EOIR’s
Board of Immigration Appeals (BIA). Asylum cases are judged based upon the law and the facts, and each case
is protected by a robust review and appeal process.
Asylum
adjudication does not lend itself well to statistical analysis. Each asylum application is adjudicated on a
case-by-case basis, and each has many variables that need to be considered by
an adjudicator. It is therefore
important that any statistical analysis acknowledge these variables and not
draw comparisons between substantially different cases.
- Complexities of
Asylum Law
Each asylum case is unique, with its own set of facts,
evidence, and testimony. Each asylum
claim is adjudicated on its own merits, case-by-case, according to U.S.
immigration law –– taking into account each alien’s story and home country
conditions. The burden of proof is on
asylum applicants to credibly establish past persecution or a well-founded fear
of future persecution based on the applicant’s race, religion, nationality,
membership in a particular social group, or political opinion. Applicants also must establish that they
merit a grant of asylum as a matter of discretion Even when persecution claims are valid, applicants may be denied
asylum if barred from that relief under the immigration laws. Such bars to asylum include: a failure to timely file an application;
having firmly resettled in another country prior to coming to the
United States; having persecuted others; or a history of criminal or
terrorist activity.
- Adjudication Process
Overview
Immigration judges seldom see the “easy” asylum cases
because those cases are decided before they reach the immigration courts. Until such time as an alien is in removal
proceedings, that person may file an “affirmative” asylum application with the Department of Homeland Security (DHS). DHS may grant the alien asylum. If DHS does not grant asylum, then that individual is placed in removal
proceedings and can ask an immigration judge to consider his or her
application. Or, if an alien did not
apply for asylum before DHS but wants to raise asylum for the first time in
court, the alien may file a “defensive” asylum application before an
immigration judge as a defense against removal.
In either scenario, the alien has an opportunity for the asylum claim
to be heard in court and, if unsuccessful, to then appeal the immigration
judge’s decision to the BIA. If
unsuccessful before the BIA, the alien may then appeal to the appropriate
federal appeals court. Moreover, an
alien unsuccessful before either the immigration judge or the BIA has other
avenues –– motions to reconsider and, where appropriate, motions to reopen –– to request additional consideration of the asylum claim at either level.
The BIA may reverse an immigration judge’s decision that either grants or denies an
alien asylum. Immigration judge decisions that grant asylum are seldom appealed by DHS. Decisions of the BIA are binding on DHS, and only an alien may file an appeal of an immigration judge or BIA decision to federal court. In other words, the
federal courts see only those cases where the asylum claim was unsuccessful. Historically, the vast majority of decisions of immigration judges and the BIA that are appealed to federal court are upheld. According to statistics compiled by the Civil Division of the Department of Justice, decisions of immigration judges and the BIA were upheld in 89 percent of asylum cases in FY 2006.
As part of EOIR’s continuing efforts to ensure quality and further improve adjudications,
the agency has moved forward with a number of measures, specified in August
2006 by former Attorney General Gonzales. They include:
- a system to evaluate the performance of immigration judges and
BIA members;
- an examination on immigration law for newly-appointed
immigration judges and BIA members;
- a “Practice Manual” that describes a set of best practices for
persons appearing before the immigration courts;
- new materials, including a revised immigration judge “Bench
Book” with up-to-date templates and reference materials;
- a review and feedback system to alert the Chief Immigration
Judge of immigration cases that reflect adversely on an immigration judge’s
professionalism;
- a link on the EOIR website for the public to file complaints
about immigration judges online;
- a new supervisory position dedicated to reviewing and
monitoring all complaints and allegations of misconduct involving immigration
judges; and
- aggressive education efforts to inform immigration courts and
the BIA about EOIR’s Fraud Program referral process, to assure that cases of
immigration fraud and abuse are appropriately investigated and prosecuted, and
thereby free up judicial resources for legitimate asylum seekers.
While much of the work is ongoing, EOIR has made substantial progress on implementing all
of the Attorney General’s measures to improve the removal system.
–– EOIR ––
This
backgrounder provides basic information on asylum variations in immigration
court. It is intended for general
informational purposes only and is not a substitute for legal advice, nor does
it constitute any legal opinion by the Department of Justice. This fact sheet is not fully inclusive; does
not address all applicable laws including case interpretation; and may be
subject to change as new laws and regulations are enacted.
EOIR, an
office within the Department of Justice, is responsible for adjudicating
immigration cases. Specifically, under
delegated authority from the Attorney General, EOIR interprets and administers
federal immigration laws by conducting immigration court proceedings, appellate
reviews, and administrative hearings. EOIR consists of three components: the Office of the Chief Immigration
Judge, which is responsible for managing the numerous immigration courts
located throughout the United States where immigration judges adjudicate
individual cases; the Board of Immigration Appeals, which primarily conducts
appellate reviews of immigration judge decisions; and the Office of the Chief
Administrative Hearing Officer, which adjudicates immigration-related
employment cases. EOIR is committed to
providing fair, expeditious, and uniform application of the nation's
immigration laws in all cases.
