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Attorney General Jeff Sessions claimed the U.S. asylum system swelled with false cries for help during the presidency of Barack Obama, suppressing genuine claims and overloading the immigration system.
Sessions said the the Obama administration allowed most immigrants who passed an initial credible fear review to be released into the United States pending a full hearing.
"These changes — and case law that has expanded the concept of asylum well beyond congressional intent — created even more incentives for illegal aliens to come here and claim a fear of return," Sessions told the Executive Office of Immigration Review on Oct. 12. "The consequences are just what you’d expect. Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down."
Sessions and President Donald Trump share a goal of changing the asylum process. In his October list of immigration principles and policies, Trump outlined tighter controls of the asylum process, including elevating the threshold standard of proof in credible fear interviews.
On the question of fewer meritorious asylum claims, however, there is no data that plainly speaks to that trend. Sessions pieced together an argument that relies on assumptions and ignores the growth of refugees.
"Indeed, there has certainly been an increase in asylum claims — but this corresponds with the increase in refugees around the world," said Lindsay M. Harris, an assistant professor of law and co-director of the immigration and Human Rights Clinic at the University of the District of Columbia, David A. Clarke School of Law.
She continued, "One of the humanitarian crises producing refugees happens to be south of our border, and this accounts for the exponential increase in asylum claims and individuals seeking protection in the U.S. through the credible fear system, rather than a sudden increase in fraudulent claims."
Thousands of Central Americans have left their countries in recent years due to gang violence and poverty.
Asylum in the United States may be granted to foreign nationals based on persecution or fear of persecution back in their home countries or last country of residence on account of race, religion, nationality, membership in a particular social group, or political opinion.
To Sessions, the process in which asylum officers find individuals have a credible fear of persecution "has become an easy ticket to illegal entry into the United States."
Laws were "never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects," Sessions said.
The Obama administration in 2009 announced policy changes to automatically consider for parole individuals who had a credible fear of persecution or torture. (Previously, parole had to be requested in writing) The change became effective in January 2010.
Harris said there’s been no evidence to suggest that the policy change influenced people to flee their homes and seek protection in the United States. The increase in people seeking asylum was "very much based on the humanitarian crisis in central America," she said.
U.S. Citizenship and Immigration Services in fiscal year 2016 decided on nearly 93,000 credible fear cases, and fear was established in about 78 percent of the cases. The agency in fiscal year 2009 reviewed more than 5,000 cases, but that data does not specify in the number where fear was established.
This information, however, would not answer whether the findings of credible fear were genuinely deserving. That is difficult to quantify, experts said.
Sessions said that many individuals who are released after a credible fear determination never show up to their immigration hearings or even file an asylum application once they are in the United States — suggesting "they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally."
The assessment that not applying for asylum is an indication of fraud is "absolutely not true," said Harris, the University of the District of Columbia professor.
Asylum seekers are released with "very little orientation" of what’s expected next and many even think they have already applied by having articulated their case to asylum officers. Some even think they have already been granted asylum upon released, Harris added.
Additionally, Sessions noted that in 2016 there were "700 percent more removal orders issued in absentia for cases that began with a credible fear claim than in 2009."
But a failure to appear before a judge doesn’t necessarily mean the asylum claim was baseless, experts said.
In-absentia orders and individuals’ failure to go to court may also be attributed to other factors, such as errors in address reporting by the respondent, errors in addresses in the notices from the courts to the respondents in proceedings, lack of education and inability to receive mail, said Geoffrey A. Hoffman, director of the University of Houston Law Center Immigration Clinic and a clinical associate professor.
Individuals represented by counsel are also much more likely to attend court, Hoffman said.
"The issue of fraud in individual cases should not overshadow the reality which is that grants of asylum are extremely low, especially for applicants who are not represented by counsel," Hoffman added.
Federal agencies have limited capabilities to detect asylum fraud.
Applicants may have fled their countries without a passport or birth certificate, may have left countries where "documentary evidence was not available," or may have fled using fraudulent documents in order to hide their identity and escape persecution, said a December 2015 report from the U.S. Government Accountability Office.
"As such, asylum officers and immigration judges must make decisions, at times, with little or no documentation to support or refute an applicant’s claim," said the GAO report.
"Like any administrative system, there has long been fraud in the asylum process. I don’t think anyone knows how widespread it is, but the Fraud Detection and National Security Directorate at USCIS has been in place since 2004 and has been successful in weeding out at least some of the fraud," said Jaya Ramji-Nogales, an immigration law expert and professor at Temple University.
Sessions said, "Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down."
The number of claims by immigrants citing credible fear to return to their home countries has significantly increased from 2009 to 2016. While there has been fraud in the asylum system, it’s uncertain and difficult to determine whether the percentage of "genuinely meritorious" credible fear claims is down, experts said.
Sessions’ statement is partially accurate but leaves out important details or takes things out of context. We rate it Half True.
Justice Department, Attorney General Jeff Sessions Delivers Remarks to the Executive Office for Immigration Review, Oct. 12, 2017
Email exchange, Justice Department press office, Oct. 13-16, 2017
Email exchange, U.S. Citizenship and Immigration Services press office, Oct. 16-18, 2017
Email interview, Lindsay M. Harris, an assistant professor of law and co-director of the immigration and Human Rights Clinic at the University of the District of Columbia, David A. Clarke School of Law, Oct. 15, 2017
Email interview, Geoffrey A. Hoffman, director of the University of Houston Law Center Immigration Clinic and a clinical associate professor, Oct. 16, 2017
Email interview, Jaya Ramji-Nogales, an immigration law expert and professor at Temple University, Oct. 15-16, 2017
U.S. Citizenship and Immigration Services, § 1208.13 Establishing asylum eligibility
U.S. Citizenship and Immigration Services, Asylum, Last Reviewed/Updated May 12, 2017
U.S. Citizenship and Immigration Services, The Affirmative Asylum Process, Last Reviewed/Updated Jan. 17, 2017
U.S. Citizenship and Immigration Services, Obtaining Asylum in the United States, Last Reviewed/Updated Oct. 19, 2015
U.S. Citizenship and Immigration Services, Questions & Answers: Credible Fear Screening, Last Reviewed/Updated July 15, 2015
U.S. Immigration and Customs Enforcement, What are the main differences between the new and old policies?, Dec. 16, 2009, policy directive, issue date Dec. 8, 2009
U.S. Citizenship and Immigration Services, Credible Fear Workload Report Summary FY 2009-2018 , July 20, 2017
U.S. Citizenship and Immigration Services, Credible Fear Workload Report Summary FY 2016 Total Caseload
U.S. Citizenship and Immigration Services, Fraud Detection and National Security Directorate, July 14, 2015
United States Government Accountability Office, Asylum, Additional Actions Needed to Assess and Address Fraud Risks, December 2015
United Nations High Commissioner for Refugees, Figures at a Glance
White House, Executive Order: Border Security and Immigration Enforcement Improvements, Jan. 25, 2017
Transactional Records Access Clearinghouse at Syracuse University, Representation Makes Fourteen-Fold Difference in Outcome: Immigration Court "Women with Children" Cases, July 15, 2015
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