Vol. 24 No. 12 (December 2014) 558-562
LIVES IN THE BALANCE: ASYLUM ADJUDICATION BY THE DEPARTMENT OF HOMELAND SECURITY, by Andrew I. Schoenholtz, Phillip G. Schrag, and Jaya Ramji-Nogales. New York: New York University Press. 2014. 286 pp. ISBN: 9780814708767.
Reviewed by Banks P. Miller, School of Economic, Political and Policy Sciences, University of Texas at Dallas. Email: firstname.lastname@example.org
LIVES IN THE BALANCE is an analysis of U.S. Asylum Officers (AOs) and their adjudication of asylum claims. Schoenholtz et al., previously authors of a study of decision making in the asylum bureaucracy, compile a database of 380,000 asylum cases decided between October 1996 and June 2009. This study is important because it both sheds light on a relatively unexamined aspect of asylum adjudication and, more importantly, because the authors have made their data available, thus likely sparking further investigation. The work examines two major questions. First, what has the effect of Congress’ imposition of a one-year deadline on filing for asylum been with respect to AO adjudication? Second, what factors explain variation in the rate at which asylum is granted over-time and between and within asylum offices?
To answer these questions the authors present largely descriptive statistical information. (Their findings are buttressed by regression analysis that is available on a replication website.) Frequently they derive their expectations from previous surveys of AOs by the Department of Homeland Security (DHS) and the Federal Law Enforcement Training Center. The blending of quantitative and qualitative evidence is a strength of the book and allows the authors to offer insights that are novel and sometimes counterintuitive. This is an important first step. Future scholars will be able to build on this work.
In 1996 Congress imposed a one-year filing deadline on asylum applicants. Essentially, an applicant needed to file for asylum within one year of arriving in the United States or face having the application automatically denied. The reasoning for at least some members of Congress who supported the change was that failure to file sooner indicated a lack of credibility for the claim. The law provided a number of exceptions that AOs (and others) might grant to the absolute bar of the deadline, including, for instance, changed circumstances in the applicant’s home country. The authors examine the effect of the deadline and the adjudication of claims for exceptions to the bar on claims after one year in chapters 3 through 5. This is a significant analysis because previously we knew very little about how the deadline mattered in asylum adjudication for AOs.
Chapter 3 provides background information on the implementation of the law by DHS and specifically how DHS has interpreted the exceptions to the one-year rule. It also provides a number of rich descriptions of the circumstances under which the deadline comes into play in a case and the reasons that an applicant might offer to explain the late filing. Chapter 4 describes the characteristics of those who meet the deadline as well as those applicants who file after one-year. Here the authors show that a large number of applicants, about 30% of the asylum seekers in their database, are subject to the deadline and that about 70% of those filing late filed within a year of missing the deadline (i.e. within two years [*562] of arrival). Furthermore, the authors demonstrate that there is a great deal of variation in the rate at which applicants from countries are deemed to have been tardy. For instance, just 15% of Armenian applicants are late whereas 45% of Indonesian applicants are late. The authors proffer various ad hoc theories here to explain the variation that they observe. Most interesting among these is what they term the “co-national” hypothesis (p. 58), in which it is suggested that applicants applying in locales with high numbers of co-nationals are less likely to be late. They find support for this hypothesis, at least among the six largest nationalities in the database. From this analysis they conclude that the one year deadline is arbitrary and does not help to thin-out meritless claims, because it harms applicants from countries with smaller numbers of immigrants already settled in the U.S. They also find a correlation between late filings and the age and gender of the applicant, as well as whether the applicant is represented.
Chapter 5 focuses specifically on those who, among the late filers, were not able to argue successfully for an exception to the deadline. Here the authors must deal with a fairly important limitation imposed by their data: they cannot compare the rate at which exceptions to the one-year rule were granted compared with the number of exceptions that were asserted nor can they determine the types of exceptions sought or granted. But in dealing with these limitations the authors make excellent use of anecdotal evidence drawn from surveys of AOs. For instance, they note that only 21% of surveyed AOs develop potential exceptions to the deadline not raised by the applicant, a contradiction of the training provided to AOs. And this suggests that the most frequent reason for granting an exception included changed circumstances in the country of origin and mental disability of the applicant. The data do allow the authors to determine that 18% of applicants were ultimately rejected because of the one-year deadline. The authors also demonstrate that the rate at which cases subject to the deadline were ultimately rejected increased from the implementation of the one-year deadline in 1998 through fiscal year 2003 and then leveled off.
The key point for Schoenholtz et al. arising from the analysis of the one-year deadline is that it prevents some applicants with genuine cases for asylum from getting it. To demonstrate that this is true the authors compare the grant rates for timely applicants and those for late applicants who qualified for an exception arguing that “[i]f late applicants had…weaker cases…we would expect [them]…to have lower grant rates than timely applicants (p. 93).” Yet they find that the ultimate grant rate for both categories is 49%. Then, using the data on tardy applications allowed in under an exception and regression weighting of certain pertinent variables, they predict that about 44% of all applicants who were ultimately rejected because of the deadline would have otherwise been granted asylum. Though intriguing and potentially unsettling, this analytical approach could be improved by controlling for the potential for endogeneity. It is unclear that an AO’s determination of the application of the one-year filing deadline is separate from their determination on the merits. Perhaps the cases granted an exception to the deadline were granted because, ultimately, the AO wished to grant the applicant asylum while those denied an exception were denied because, in the end, the AO thought there was little chance of a grant on the merits. And though the authors demonstrate great similarity on certain demographic characteristics across the timely, tardy but [*559] allowed, and tardy but not allowed groups they cannot demonstrate similarity across these groups in terms of credibility, which is usually the central issue in an asylum determination (e.g., Miller, Keith and Holmes 2015). In other words, readers are left wondering whether the three groups really are similar and therefore whether weights from the late but allowed group can appropriately be applied to the late but not allowed group. In any case, their description of the one year deadline is comprehensive, enlightening and policy-relevant and will undoubtedly form the basis for future investigations of its effects.
In chapters 6 through 10 the authors seek to determine how AOs decide to grant asylum on the merits. Chapter 6 describes aggregate asylum grant rates over time, ultimately dividing the 1996 to 2009 time period into four “eras” that Schoenholtz et al. say characterize the relevant time periods. Among the important findings in this chapter is that the AOs seem to be granting asylum more readily to those coming from more abusive countries. To measure the level of human rights abuse in a country the authors use Freedom House scores, combining civil liberties and political rights scores and deeming those countries scoring above an 11 on the 14 point scale as abusive. Scholars of human rights abuse have generally shied away from Freedom House measures for a number of reasons, not the least of which is that the measure combines sub-categories in a manner that is not transparent and because the categories that ultimately comprise the scales used by Schoenholtz et al. may not measure repression per se (Keith 2012). It is also unclear why 11 on a scale of 14 constitutes a “most abusive” country while lower scores are “less abusive”—the division of the scale is seemingly arbitrary. More defense of this crucial measure is necessary because it forms the backbone of a central claim made by the authors in chapter 6 and the ensuing chapters: that AOs generally follow legally relevant facts in adjudicating these claims. Put differently, on the basis of the Freedom House measure the authors conclude that AOs are more likely to grant asylum to those fleeing more repressive regimes. However, other claims in chapter 6 are quite interesting and well-supported. For instance, the use of qualitative data from the AO surveys showing that after the September 11th attacks the availability of new security data may have changed the adjudication of claims, thereby making reference to an immigration judge more likely, is thought-provoking.
Chapter 7 analyzes a host of applicant characteristics to show that there is considerable variation in the rate at which asylum is granted depending on those characteristics. Chapters 8, 9 and 10 analyze the rates at which asylum is granted across the eight regional asylum offices, within each of those offices, and how biographical details of the AOs affect grant rates, respectively. Each of the chapters reaches the conclusion that there is tremendous variation based both on the office in which the asylum case is heard and on the individual asylum officer deciding the case. With respect to between-office variation, the authors suggest that much of it is driven by differences in the proclivities of supervisors, caseloads, the ideology of potential circuit court reviewers and difference in local levels of support for applicants. In general, the results in these chapters support the notion that there are extra-legal factors at play in the decision making of AOs. There is the potential for this contribution to be extended through more attention to the judicial decision making literature in political science and the concerns of the international relations literature on the strategic use of [*560] asylum (e.g., Keith, Homes and Miller 2013; Miller, Keith and Holmes 2015), but failure to cite this literatures does not necessarily undermine the central findings that AO decision making is highly variable.
LIVES IN THE BALANCE concludes in chapter 11 with a series of policy recommendations for improving the asylum adjudication process in the Department of Homeland Security. Most prominently the authors argue that the one-year deadline ought to be repealed by Congress because the deadline prevents those who would otherwise be granted asylum the chance to pursue those claims and because it encourages applicants who would otherwise come forward to remain hidden from authorities and un-documented. Although it is undoubtedly true that some applicants who otherwise would have been granted asylum have been denied because of the deadline, in order to assess whether that number is large or small we need a better understanding of how AOs actually make the seemingly simultaneous decision of tardiness and merit. On creating a larger class of undocumented immigrants there is little reason to doubt the authors’ assertions. Schoenholtz et al.’s recommendations for changes in the implementation of the law by DHS make a good deal of sense. For instance, broadening the number of allowable exceptions seems to be both doable and wise as it gives AOs more discretion to admit those who file late but have a legitimate reason for doing so. Of course, the obverse of this allowance is likely an increase in the variation between individual decision makers. With respect to decisions on the merits of these claims the authors make a number of sensible suggestions, including requiring that AOs have law degrees, increased interaction between AOs from different regions and among those AOs who have very high and very low grant rates, and the keeping of additional data by DHS to allow for more in-depth work in the future.
LIVES IN THE BALANCE is bound to be an important contribution to understanding the decision making of AOs, if for no other reason than that it constitutes the first attempt at a comprehensive exploration of how the first layer of the U.S. asylum bureaucracy determines the fate of thousands of applicants a year. This contribution is likely to be furthered by access to the data upon which the study is based. However, the strengths of the work go beyond simply initiating a scholarly conversation about AO decision making, as the authors make good use of the complementary evidence available to them to fill in gaps in our understanding of the factors that affect AOs. Furthermore, they are to be commended for connecting their findings to salient policy considerations and for doing so in a timely way.
Keith, Linda Camp. 2012. POLITICAL REPRESSION: COURTS AND THE LAW. University of Pennsylvania Press, Pennsylvania Studies in Human Rights (ed. Bert Lockwood).
Keith, Linda Camp, Jennifer Holmes and Banks Miller. 2013. “Explaining Divergence in Asylum Grant Rates Among Immigration Judges: An Attitudinal and Cognitive Approach.” LAW & POLICY 35: 261-289.
Miller, Banks, Linda Camp Keith and Jennifer Holmes. 2015. IMMIGRATION JUDGES AND U.S. ASYLUM POLICY. Philadelphia: University of Pennsylvania Press.
© Copyright 2014 by the author, Banks P. Miller.