PolitiFact: Sessions mischaracterizes migrant asylum approval rate

U.S. Attorney General Jeff Sessions defended the Trump administration’s “zero tolerance” policy to prosecute all immigrants who enter the United States illegally, saying not prosecuting them would be a “disservice” to the country and an “insult” to those who come to the United States legally.

Sessions said “adults are only being arrested” because they didn’t come to the United States through a port of entry “where they could have applied for asylum lawfully.” (That’s not accurate. Immigrants can apply for asylum even if apprehended at the border, regardless of immigration status.)

“But many do not apply for asylum, of course,” Sessions told the National Association of School Resource Officers. “And our courts find that 80 percent of those who do file for asylum aren’t qualified for it, do not merit that relief.”

Is Sessions accurate that 80 percent of immigrants who apply for asylum “do not merit the relief”? We asked the Justice Department about Sessions’ claim, pointing to Sessions’ prepared remarks posted on the department’s website saying: “Courts find that 80 percent of asylum claims are without merit.”

In fiscal 2017, there was a 20 percent grant rate for asylum applications, “which suggests that most are not meritorious,” Justice Department spokesman Devin O’Malley told PolitiFact.

But experts told us it’s not that clear-cut that the remaining 80 percent of asylum applications are not merited. There are several other reasons why an asylum claim is not granted, experts told us.

The Justice Department pointed to immigration court statistics, particularly a table on asylum rates for 2017, the latest full fiscal year. A footnote for that table said the data are for asylum decisions on affirmative and defensive applications issued in completed removal, deportation, exclusion, and asylum-only proceedings.

(“Affirmative asylum” is filed voluntarily with the Homeland Security Department’s U.S. Citizenship and Immigration Services; if USCIS is unable to approve a case, the agency may refer it to immigration court within the Justice Department. “Defensive asylum” applications go before an immigration judge and are filed by individuals who are in removal proceedings.)

In 2017, the data showed that 20.22 percent of asylum claims were granted and 33.51 percent were denied. The others were classified as “other closure” (27.66 percent) and “administrative closure” (18.61 percent).

The “other” rate is for cases that have a decision of abandonment, not adjudicated, other or withdrawn. The administrative closure rate covers “decisions that have not been placed back on the docket following a granted motion to recalendar,” the footnote for the table said.

Just because the grant rate is about 20 percent, it does not mean that 80 percent aren’t qualified, or don’t merit relief, as Sessions claimed. As the Justice Department table showed, there are several other factors at play.

It’s also worth noting that the data the Justice Department highlighted include “affirmative asylum” cases, which start with USCIS and are referred to immigration court. Affirmative asylum applicants are not in removal proceedings, as would be people apprehended at the border due to the zero tolerance policy.

Denise Gilman, a clinical professor and director of the Immigration Clinic at the University of Texas School of Law, pointed to other data released in the Justice Department’s fiscal 2016 statistics yearbook. It showed a 31 percent grant rate in 2016 for defensive asylum claims. Border claims would fall into that pile (along with some others), Gilman said.

Immigration law experts told us that some asylum cases also can be denied while still having viable claims.

It is not accurate to infer that because only 20 percent of claims were granted that the rest were not meritorious, said Jennifer Gordon, a Fordham Law School law professor.

“Many cases are denied for procedural reasons not related to the merit of the claim, or because the applicants are unrepresented or poorly represented and therefore don’t have the chance to make their case in an effective way,” Gordon said. She also said cases decided by asylum officers are not counted in the immigration court statistics.

In discussing merit, it’s also important to count the number of cases that are reversed by the board of immigration appeals or by one of the circuit courts of appeals, said James Hathaway, a law professor and director of the Program in Refugee and Asylum Law at the University of Michigan Law School.

Our ruling:

Sessions said, “Our courts find that 80 percent of those who do file for asylum aren’t qualified for it, do not merit that relief.”

Sessions’ claim is based on Justice Department data showing a 20 percent asylum grant rate in 2017. But that doesn’t necessarily mean that the other 80 percent were without merit. The data the Justice Department used to support Sessions’ remark actually undercut his point. Some cases had not been adjudicated or placed in the court docket.

Immigration law experts also said that even if a case is denied, it could still be meritorious, but unsuccessful in court because an applicant did not have a lawyer.

Sessions’ claim is not accurate. We rate it False.

Jeff Sessions