As the Trump administration makes it tougher for migrants seeking asylum to enter the United States, immigration judges are increasingly denying applications, according to new federal data collected by a Long Island immigration lawyer. This downward trend is especially notable in New York City, where asylum seekers have historically won at higher rates than in other cities.
Bryan Johnson, a muckraking attorney who frequently files Freedom of Information Act requests with the agency in charge of immigration courts, obtained new records this week for each of the nation’s 400-plus immigration judges. He shared this data with Gothamist/WNYC and we did our own analysis.
In the fiscal year 2019, which ended in October, immigration judges nationwide heard more than 65,000 cases and denied asylum 71 percent of the time. By comparison, they denied asylum in 67 percent of the 40,000 cases they heard in fiscal year 2018.
The Trump administration has been hiring more judges to hear a backlog of more than 1 million asylum cases. Asylum grant rates have been dropping for several years, even before the recent surge in migrants at the southern border.
New York City’s immigration court is still more favorable to asylum seekers overall. This is partly because immigrants are more likely to find lawyers here. In a city where almost 40 percent of residents are foreign born, New York judges also see a wider variety of immigrants from around the world, fleeing all types of situations from political persecution in China to Latin American gangs.
But the shift here is dramatic. Just four years ago, the research group TRAC found New York judges denied just 16 percent of asylum seekers. That figure has been rising since Trump took office. But the average denial rate for a New York judge shot up to 46 percent in fiscal year 2019, according to the latest data, from 32 percent in the previous year.
Those new figures include a few New York City judges who only see immigrants held in detention, and whose cases are often much tougher to win. The New York City immigration court now has three locations and is the busiest in the nation.
Nonetheless, Johnson said the falling asylum rate proves how the Trump administration has been able to influence the immigration courts, which are run by the Justice Department.
“It's like a blunt instrument of just denying the judges any ability to analyze the law themselves and determine whether they're eligible for asylum,” said Johnson.
Decisions by Attorney General William Barr and his predecessor, Jeff Sessions, made it harder to grant asylum to people fleeing gangs, domestic abuse and those whose relatives are persecuted. Sessions argued that asylum had been interpreted too broadly and should not include people fleeing private criminals, such as gangs, because they’re not connected to the government.
Judges also have a new quota system in which they must complete 700 cases a year to get a favorable rating. The administration said this was necessary to whittle down the backlog. But the judges’ union has complained that this could result in a denial of due process. The American Bar Association declared the immigration court on the “brink of collapse” and the union wants an independent court, no longer controlled by the Department of Justice.
Johnson’s data show how new judges, in particular, are more likely to deny asylum than most of the longer-serving New York judges. Of the 12 new judges in New York City in 2019, 11 denied asylum at least 50 percent of the time. A few were assigned to hear immigrants in detention, which could influence these high rates.
Johnson also noted that new judges are on probation for their first two years and have been trained by the current administration. Many also previously worked as trial attorneys for Immigration and Customs Enforcement. But there are other factors.
Earlier this year, WNYC reported on the new judges and found several were assigned large numbers of Central American families who had been fast-tracked through the court system by the Trump administration. This often presented challenges for their attorneys.
One of the new judges, Oshea Spencer, denied asylum 87 percent of the time in her first year on the bench. When I visited Spencer’s courtroom last December, she was frank as she told an attorney representing a woman and child that their case must be concluded within a year. She also tried to expedite a case involving a Honduran family so they’d be finished in less than a year. The family ultimately lost their case.
“That’s what the administration wants to happen,” said Johnson. “It’s outrageous that they can just rewrite the asylum law overnight.”
Jake LaRaus, a local immigration lawyer, said he wasn’t surprised to see such a high denial rate for a judge hearing so many Central American families on an expedited timeline. He said this special docket for families “was built to fail respondents, and this intent is clear from its design.”
“In situations like this, it is difficult to honestly characterize this adjudicative body as a court system, as due process so often plays second fiddle to the Executive Branch’s ulterior whims and wiles.”
Immigration judges are not allowed to answer questions from the media. The Executive Office for Immigration Review, a Justice Department agency which runs the courts, did not respond to a request for comment. However, the agency told The Daily Beast earlier this month that each asylum case is unique, and that they “typically include complex legal and factual issues.”
Stacy Caplow, a professor at Brooklyn Law School who runs an immigration clinic, said the New York numbers also reflect recent retirements.
“There’s been departures of some of the more experienced, seasoned judges,” she notes, matching a national trend cited by the judges’ union. “And you can see even the people who have the highest grant rates on that list are the much more experienced long-term judges.”
For example, Frederick Leeds started working as an immigration judge in 2006 and had a denial rate of 17 percent. Amiena Khan started in 2010 and had a denial rate of 16 percent, but that rose from 9 percent in 2018.
But Caplow said it’s hard to form conclusions about the new judges because they don’t have long track records. And some judges hear many more cases than others, depending on how they’re scheduled. “But I think it’s fair to say that if a person’s percentage denial rate looks the way it does, if the denial rate far exceeds the grant rate, it says something about what’s going on,” said Caplow.
The findings in Johnson’s data are consistent with data gathered by the research group TRAC at Syracuse University, which reports 69 percent of all asylum cases were denied in fiscal year 2019, compared to 65 percent in the previous fiscal year. TRAC has complained that it’s been getting incomplete data from the government. In New York City’s immigration court, TRAC also found 44 percent were denied asylum in fiscal year 2019 compared to 33 percent in fiscal year 2018.