Is AG Sessions Confusing Denied Asylum Applications With “Fake” Ones?

Attorney General Jefferson Beauregard Sessions wasn’t short on opinions regarding people who apply for asylum in the United States, as set forth in an October, 2017 speech to the Executive Office for Immigration Review (commonly known as U.S. Immigration Court).

Unfortunately, much of the information he presented was baseless or wrong.

Let’s start with Sessions’s assertion that the immigration court system is becoming “overloaded with fake claims.” Mr. Sessions provided no source for this information. Indeed, finding statistics on fake claims would be practically impossible in a setting where the immigration judge’s decision depends mostly on the applicant’s own account of what persecution occurred (or is likely to occur) and why.

But we do know that about half the people who apply for asylum in the U.S. are denied, and that denial rates are going up. Could this have led Mr. Sessions to believe that anyone who wasn’t granted asylum had filed a “fake” claim?

Such a conclusion would ignore one of the most obvious truths about U.S. asylum law: It’s complicated. Without getting too deep into the weeds, let’s just say that people who are really, truly terrified of returning to their home country can and often are refused asylum because they:

  • can’t connect the persecution they experienced to a personal characteristic such as race or religion, but were, for instance the victims of widespread violence
  • spent too long in another country on the way to the U.S.
  • made a few mistakes or minor inconsistencies when testifying, leading the judge to find them not “credible”
  • are part of a group (such as guerrillas) that may also have blood on its hands, leading to a conclusion that the applicant is barred as a persecutor of others, or
  • didn’t apply within a year of reaching the United States and wasn’t granted an exception to this rule.

(Find out more in Nolo’s article Bars to Receiving Asylum or Refugee Status.)

Ask any immigration lawyer. We’ve all seen heartbreaking cases where the client had obviously suffered, and might face death after being deported, but was denied asylum based on some fine point in the law. Those claims aren’t fake, they just don’t make the legal cut.

Then also consider that huge numbers of applicants have no attorney to clue them in to the details, and may lose a case that could have been a winner with better awareness of what aspects of it to highlight.

But should we defer to Sessions’s authority on this matter and assume he knows things we don’t? That’s hard to do, after noting the other errors in his speech: for example, where he states that “dirty immigration lawyers” are “encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Uh, nope. That’s technically impossible. The “credible fear process” only applies to people entering at U.S. borders or airports, and almost none of them have lawyers at that point. Plus, most of the immigration lawyers I’ve met are quite clean.

Sessions also states that, “DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.” I’m no statistician, but given that each applicant must convince the border official of the merits of his or her own claim of fear, there’s no way that a general average equates to an 88% chance of success for each entrant.

And finally, let’s look at Sessions’s statement that, “There are almost no costs, but potentially many rewards, for filing a meritless asylum application.” It’s true that the U.S. government charges no asylum application fee, but as mentioned, applying for asylum without an attorney is likely to get one nowhere—and by the time an applicant takes a challenging case through immigration court, the Board of Immigration Appeals, and the federal circuit court, thousands of dollars in legal fees are inevitable. Sure, a few applicants can find attorneys to work pro bono, but only those with the strongest cases are likely to be able to do that.

If this is what Sessions calls a “generous system,” it’s frightening to imagine what an un-generous one might look like.