Lives in the Balance

Lives in the Balance: Asylum Adjudication by the Department of Homeland Security

Andrew I. Schoenholtz
Philip G. Schrag
Jaya Ramji-Nogales
Copyright Date: 2014
Published by: NYU Press
Pages: 286
https://www.jstor.org/stable/j.ctt9qg68b
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  • Book Info
    Lives in the Balance
    Book Description:

    Although Americans generally think that the U.S. Department of Homeland Security is focused only on preventing terrorism, one office within that agency has a humanitarian mission. Its Asylum Office adjudicates applications from people fleeing persecution in their homelands.Lives in the Balanceis a careful empirical analysis of how Homeland Security decided these asylum cases over a recent fourteen-year period.Day in and day out, asylum officers make decisions with life-or-death consequences: determining which applicants are telling the truth and are at risk of persecution in their home countries, and which are ineligible for refugee status in America. InLives in the Balance, the authors analyze a database of 383,000 cases provided to them by the government in order to better understand the effect on grant rates of a host of factors unrelated to the merits of asylum claims, including the one-year filing deadline, whether applicants entered the United States with a visa, whether applicants had dependents, whether they were represented, how many asylum cases their adjudicator had previously decided, and whether or not their adjudicator was a lawyer. The authors also examine the degree to which decisions were consistent among the eight regional asylum offices and within each of those offices. The authors' recommendations- -, including repeal of the one-year deadline- -, would improve the adjudication process by reducing the impact of non-merits factors on asylum decisions. If adopted by the government, these proposals would improve the accuracy of outcomes for those whose lives hang in the balance.Andrew I. Schoenholtzis Visiting Professor and Director of the Center for Applied Legal Studies at Georgetown University Law Center. He is Deputy Director of the Institute for the Study of International Migration at Georgetown University School of Foreign Service.Philip G. Schragis Delaney Family Professor of Public Interest Law and Director of the Center for Applied Legal Studies at Georgetown University Law Center.Jaya Ramji-Nogalesis Associate Professor of Law at Temple University's Beasley School of Law.

    eISBN: 978-0-8147-0877-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Figures and Tables
    (pp. ix-xiv)
  4. ACKNOWLEDGMENTS
    (pp. xv-xvi)
  5. INTRODUCTION
    (pp. 1-6)

    The Department of Homeland Security (DHS), established by Congress in the wake of the September 11, 2001, terrorist attacks, is the third-largest federal agency, with more than 180,000 employees.¹ Most of its many functions are well known to the public and associated with national security or law and order. The department seeks to protect the nation against future terrorist attacks by disaffected citizens or foreign nationals. It houses the Federal Emergency Management Agency, which responds to natural disasters and, if necessary, major terrorist incidents. Through its Transportation Security Administration and its air marshals, it keeps air traffic safe, at times...

  6. 1 Seeking Refuge
    (pp. 7-16)

    The United States was settled in part by waves of refugees, including the Pilgrims and Puritans, seeking freedom from religious and political persecution. Nevertheless, laws, regulations, and government programs to protect refugees systematically and apolitically are of surprisingly recent vintage, dating only from 1980.

    In 1968, the United States ratified the United Nations Protocol Relating to the Status of Refugees. Parties to this treaty agreed that they would not deport refugees to other lands where their lives or freedom would be in danger.¹ Thirteen years later, Congress passed the Refugee Act of 1980 to implement its obligations under the Protocol.²...

  7. 2 The Applicants and the Adjudicators
    (pp. 17-40)

    This study analyzes a database drawn from the Department of Homeland Security’s RAPS system, providing information about 552,760 asylum applications filed between the beginning of FY 1996 and June 8, 2009.¹ We studied only the cases in which the applicants were really seeking asylum (as opposed to another form of relief) and were actually interviewed by asylum officers.² The Methodological Appendix, which is available on a website associated with this book, describes in detail why we excluded certain cases from our study.³

    The resulting data on which this book is primarily based consisted of 383,480 cases. For most of our...

  8. 3 The One-Year Filing Deadline
    (pp. 41-48)

    The first step, for an asylum officer who is analyzing a new asylum application, is the determination of whether the claim was filed on time. This new twist to the asylum standard took effect on April 16, 1998, as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Although the Refugee Act provides that any person from another nation who arrives in the United States may apply for asylum, the 1996 law states that this right to seek asylum “shall not apply” unless the would-be asylum seeker “demonstrates by clear and convincing evidence that the application...

  9. 4 Timeliness
    (pp. 49-68)

    The Department of Homeland Security’s data reveal interesting and at times surprising patterns in asylum officer determinations of whether asylum seekers filed within the permitted one-year period.¹ This chapter describes basic but crucial information about the deadline—what percentage of asylum claims were determined to have been filed late and how late these claims were filed. It also examines whether determinations of lateness differed depending on certain personal characteristics of the asylum seekers—where they came from in terms of geographic region and nationality, their age, how they entered, whether they were represented, their gender, and in which of the...

  10. 5 The Rejections
    (pp. 69-100)

    In chapter 4, we reviewed the numbers and demographic characteristics of applicants who did not establish to the satisfaction of asylum officers that they filed their asylum applications within one year of entering the United States. We saw that 92,622 individuals, 30.5 percent of all affirmative asylum applicants, fell into this “untimely” category during the period of our study. This figure understates the proportion of asylum seekers affected by the deadline because it does not take into account those who failed to apply because they knew that they had missed the deadline and therefore judged that the risk of applying...

  11. 6 Four Eras of Asylum Adjudication: Grant Rates Over Time
    (pp. 101-120)

    During the fourteen-year period we studied, DHS granted asylum to 45 percent of the 329,336 asylum seekers who applied on time or qualified for an exception to the one-year deadline.¹ Two factors should most strongly affect whether a particular applicant wins or loses. The first is whether the applicant’s home country is a human rights abuser (very few British people win asylum, but many Ethiopians are successful). We explore in the next few pages the extent to which grant rates correlate with this factor. The second is whether the applicant testifies credibly and provides sufficient corroboration to show that she...

  12. 7 Perceptions about the Asylum Seekers
    (pp. 121-142)

    In chapter 6, we explored asylum adjudication over time, investigating the relationship between grant rates and changes in laws, policies, and politics. In this chapter, we shift our focus to examine variables that may have shaped asylum officers’ perceptions of the asylum seekers. We start by discussing the ways in which two sociological characteristics of the applicants—their dependents and their genders—correlated with grant rates. We then look at two factors relating to the asylum process—status at entry and representation—and their relationships with grant rates.

    DHS granted asylum 18 percent more often (52 percent compared to 44...

  13. 8 Variations across the Regional Asylum Offices
    (pp. 143-162)

    Up to this point, we have examined changes in the grant rate over time and the impact of officer perceptions of the asylum applicants on grant rates. In this chapter, we shift our focus to the asylum offices as the locus of decision making, looking at variations across these offices. As the map at the front of this book shows, all of these offices have very large catchment areas; all but the New York office interview applicants from several states. In the next chapter, we explore variations in adjudication by officers within these offices.

    In our bookRefugee Roulette, we...

  14. 9 Disparities within Asylum Offices
    (pp. 163-176)

    InRefugee Roulette, we reported that asylum officers within some of the regional offices, to whom cases were randomly assigned, granted asylum at very different rates, even to nationals of the same country or group of countries. We now return to that issue, using the database from which the studies in the three previous chapters were drawn. This chapter reports on disparities in grant rates among officers within the eight regional asylum offices. We first examine all cases adjudicated by officers who decided at least one hundred cases, reporting these data for three asylum offices. We next hone in on...

  15. 10 The Asylum Officers
    (pp. 177-196)

    In chapter 9, we saw that there was great variability among the grant rates of asylum officers deciding similar cases within the same regional office. What might account for these striking disparities? One asylum officer with whom we spoke closed our interview by saying “there are so many factors that play into the data—the age of the asylum officer, whether they have an old or a new supervisor, whether they are close to retirement, their background, whether they had breakfast that morning.”¹ To the extent possible, we used the data that DHS supplied to us to identify relationships between...

  16. 11 Conclusions
    (pp. 197-224)

    By enacting the asylum provisions of the Refugee Act of 1980, Congress gave hope to tens of thousands of people who must flee their countries every year to escape persecution and find safety in the United States. The asylum provisions of the Refugee Act are administered, in the first instance, by a corps of civil servants who remain dedicated to fair adjudication despite overwhelmingly heavy caseloads that require them, day after day, to hear gruesome tales of torture and repression.

    These men and women have nearly impossible jobs. Subject to approval by supervisors, they have the power to change for...

  17. APPENDIX: Catchment Areas of the Eight Regional Asylum Offices
    (pp. 225-226)
  18. NOTES
    (pp. 227-268)
  19. INDEX
    (pp. 269-270)
  20. ABOUT THE AUTHORS
    (pp. 271-271)