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Immigration Law

EOIR's New Math

Jeffrey S. Chase, Dec. 12, 2020

"I’m going to use a baseball analogy here (with apologies to non-fans):  DJ LeMahieu finished this past season as the American League batting champion.  Imagine if he were to walk in to negotiate a new contract with the New York Yankees, only to be offered the minimum permissible contract because of his disappointing performance.  When a shocked LeMahieu would respond “but I hit .364 last season!,” the Yankees general manager would reply “Not even close.”

The Yankees would explain that they are no longer employing the traditional method of calculating batting average, but have come up with a “better” approach.  A confused LeMahieu would note that he had 71 hits in 195 at bats.  The Yankees would respond that he appeared at the plate 216 times, if one includes “other” outcomes, such as  walks, hit-by-pitch, and sacrifices.  LeMahieu would point out that those have not counted in calculating batting average before; the Yankees would respond “Well, now they do.”  The Yankees would next point out that LeMahieu had not played in 12 of the team’s games last season, due to injury.  The team therefore estimated another 48 plate appearances that the player could have had, and calculated those into his batting average as “non-hits.”  Lastly, the team would note that the season was shortened by 102 games due to the pandemic, covering another 408 plate appearances.  By the time they were done, the Yankees would conclude that LeMahieu had actually batted .107, certainly not Major League quality hitting.1   The Yankees would add that few if any teams would even be negotiating with a .107 hitter, much less offering them a contract.

The above purely fictitious, imaginary scenario is offered to illustrate EOIR’s very real current approach to its published asylum statistics.  The Trump Administration has from day one taken the position that all asylum claims are false in order to justify its inhumane treatment of genuine refugees.  However, such a claim is undermined when the Justice Department’s own judges are granting asylum in those very cases.   It was therefore up to EOIR to offer the type of “alternative facts” that are a trademark of this administration.

EOIR has for many years published an annual Statistical Yearbook, which has included asylum grant rates nationally for all immigration courts.  But recently, EOIR put out a chart entitled “Executive Office for Immigration Review Adjudication Statistics,” and subtitled “Asylum Decision Rates.”  The top half of the chart contains a graph that is only slightly less difficult to follow than Rudy Giuliani’s latest election conspiracy theories.  Below that is a chart containing asylum grant rates for the years 2008 through 2020.

Interestingly, the grant rates listed on this latest chart (using what I’ll call EOIR’s new “Larger Inclusion Asylum & Refugee Statistics,” or “LIARS” for short) are strikingly different than the numbers in the EOIR Yearbooks:

Year EOIR Statistical Yearbook LIARS Figures

2008 45% granted 23.68% granted

2009 48% 23.92%

2010 51% 25.34%

2011 52% 31.36%

2012 56% 30.55%

2013 53% 24.93%

2014 49% 22.84%

2015 48% 18.70%

2016 43% 15.80%

 

There is quite a difference between a grant rate of 48 percent or 18.7 percent for 2015.  So how were the LIARS figures derived?

Well, in addition to asylum grants and asylum denials (i.e. the only two figures that should matter), the LIARS figures added two more categories to the equation.  The first new category is “Other.”  A footnote explains (if that’s the correct word) that “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.”  The explanation that “other” includes “other” didn’t clear things up for me.  Nevertheless, it seems that these were cases that did not involve either a grant or a denial of asylum, and thus shouldn’t be part of the calculation, much like walks, hit by pitch, and sacrifices are not considered in batting average calculations.  The reason those outcomes don’t count in baseball is because they are not indicative of the batter’s ability to get a hit, since no opportunity was available.  Similarly, an asylum case that did not proceed to an actual decision is not indicative of the merits of the application.  For example, an asylum applicant who subsequently became eligible for a faster, easier path to legal status because they married a U.S. citizen or won the visa lottery in no way indicates that their asylum claim wasn’t meritorious.

The second new LIARS category involves cases that were administratively closed.  This is the equivalent of games not played in the baseball analogy.  A case administratively closed is taken off the docket and not tried; it’s a hearing not held.  EOIR is now choosing to consider it as a “non-grant”  in its calculations, thus reducing the grant rate to the same degree as if the hearing was held and asylum was denied.  In 2015, the two new categories that shouldn’t have been considered equaled 60.94 percent of the total cases considered by LIARS (comparable to the 102 games not played in 2020 by the Yankees, which constitutes 63 percent of a normal length season).  To summarize, the real (Statistical Yearbook) grant rate of 48% in 2015 was derived based on 8,246 asylum grants out of 17,079 total asylum cases decided that year.  The LIARS grant rate of 18.70 considered 8,076 asylum grants (i.e. 170 less than listed in the 2015 Statistical Yearbook) out of a total of 43,189 cases consisting of grants, denials, other, and administratively closed hearings in which the asylum claim was never heard.  I have no idea how LIARS reduced the number of grants in 2015 by 170 cases.

The EOIR Statistical Yearbook contains an additional chart which includes cases in which withholding of removal was granted.  In  2015, fifty-five percent of asylum applicants were granted either asylum or withholding of removal.  The LIARS figures make no mention of withholding of removal.  If grants of that alternative relief were hidden in the “Other: other” category, they would have been counted as cases in which asylum was not granted, which would lower the grant rate in the same way as a denial.

This might all seem like mere pettiness on EOIR’s part, but the administration uses these numbers in press releases (such as its infamous “Myths vs. Facts” sheet which remains posted on EOIR’s website).  It also emboldens the administration to claim it is merely “increasing efficiency” in passing new rules to quickly deny and deport asylum seekers by “efficiently” rendering all of them ineligible for relief.2  Such a statement depends on an underlying belief in the illegitimacy of the claims of those being quickly denied and deported, an illegitimacy that seeks support from the doctored numbers.  Where the true numbers show a much higher rate of asylum claims granted, how could efficiency be used to justify sending actual refugees home to die?3 

I wonder who came up with this new system.  As I don’t know the answer, let’s call them “other.”  Maybe they can spend the final weeks until January 20 devising a new chart, titled “Who should no longer be a government employee as of January 21, 2021?”  To get them started, here are a few easy ones: (1) EOIR Director James McHenry: 100%.  (2) Every EOIR manager who enabled him over the past four years: 100%.  (3) Other: 100%.

Notes:

  1. The infamous “Mendoza Line,” which denotes a batting average of .200, is usually considered “the offensive threshold below which a player’s presence on a Major League Baseball team cannot be justified,” according to Wikipedia.

  2. The administration’s latest rules, scheduled to take effect on January 10, would make the manipulation of asylum grant rates unnecessary as to future claims, as virtually no one would remain eligible for such relief. One can only hope that courts will block those rules until they can be withdrawn by the Biden administration.

  3. To be clear, no grant rate would ever justify sending even a single refugee to their death in the name of efficiency."

Copyright 2020 Jeffrey S. Chase. All rights reserved.  Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.