Looking at validity of asylum rate claims

The claim: “As it turns out, about 80 to 90 percent of those don’t have a valid asylum claim, once we actually get their documentation.” — U.S. Rep. Dan Crenshaw, referring to immigrants seeking asylum who are being taken into custody at the border.

Crenshaw, a Houston Republican, made the comment during an appearance on TV talk show “The View” in early May, as he sparred with host Sunny Hostin over border security and immigration issues. He was referring to Justice Department data from fiscal year 2018.

PolitiFact ruling: False. About 20 to 30 percent of asylum requests have been granted annually since 2009, but experts said that does not mean the remaining 70 to 80 percent of cases are invalid.

Discussion: This isn’t the first time PolitiFact has checked a claim about the percentage of asylum claims that are valid — we rated a similar statement from former Attorney General Jeff Sessions false last year.

Crenshaw’s office directed us to a report from the Executive Office for Immigration Review within the Justice Department that looked at asylum cases that originated with a “Credible Fear Claim.” These claims are brought by individuals who were apprehended by Border Patrol officers while attempting to enter the country without authorization and were placed into the expedited removal process.

If a person in these circumstances claims to have a credible fear of persecution or torture if they were to be removed from the country, they meet with an asylum officer who determines whether to refer their case to an immigration judge for a full hearing. Once a case is referred to a judge, a person must submit an application for asylum to the court.

The Justice Department data show that in fiscal 2018, asylum was granted in 16 percent of cases that originated from a credible fear claim. About 29 percent of requests were denied and roughly 15 percent of cases were closed for administrative or other reasons.

In the remaining 40 percent of cases, individuals who were booked with a credible fear claim did not end up submitting an application for asylum.

Just 16 percent of these cases resulted in asylum being granted, but experts said there are many reasons cases might be closed or requests might be denied, regardless of the merits of a claim.

And just because an individual does not submit an asylum application after a credible fear interview does not mean they do not have a valid asylum claim, according to Sarah Pierce, a policy analyst at the Migration Policy Institute.

“One of the reasons it is so common to see people who pass the credible fear test and don’t ultimately apply for asylum is that they don’t know that they

have to and are confused about the process,” Pierce said.

Some asylum seekers assume their credible fear interview with an asylum officer is their application for asylum, because they are allowed to enter the country while they await their court date, Pierce said. But in actuality, they have to submit a paper application to the court formally requesting asylum.

Looking at the roughly 15 percent of cases that were closed for unspecified reasons, Pierce said that this group could include individuals who applied for other benefits before an immigration court at the same time as they sought asylum and were granted those other benefits instead.

Similar points were raised by the experts we consulted in our 2018 fact-check of a similar claim from Sessions.

Jennifer Gordon, a law professor at Fordham Law School, said cases can be dismissed for a number of reasons unrelated to the merits of an individual’s claim.

James Hathaway, a law professor and director of the Program in Refugee and Asylum Law at the University of Michigan Law School, said it’s also important to count the number of cases that were reversed through the available appeals processes.

Another important caveat to consider is that credible fear claims do not make up the majority of the asylum cases that go before judges in the United States.

Justice Department numbers show that, of all asylum cases closed in 2017 (the latest year with complete data available), about 20 percent of claims were granted and about 34 percent were denied. The remaining cases were closed or dismissed for unspecified reasons.