Asylum Law Background In the United States

The following article is provided by Office of Legislative and Public Affairs. It discusses how immigration court judges make decisions in asylum applications. It is helpful to those who may apply for asylum in removal proceedings, where they apply asylum before the immigration judge.


BACKGROUNDER Contact: Office of Legislative and Public Affairs
(703) 305-0289 Fax: (703) 605-0365
Internet: www.usdoj.gov/eoir
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
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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.
• Layers of Review
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.
• Case Appeals
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-todate
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;
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• 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