Fact Sheet: Asylum Fraud and Immigration Court Absentia Rates

What is asylum fraud?

Asylum fraud occurs when an asylum seeker knowingly misrepresents information as part of their application for protection.

Asylum fraud can occur at multiple stages of the asylum process, including during oral testimony or in the provision of written documentation and evidence. Examples of asylum fraud include testimony that contains outright falsehoods designed to mislead adjudicators, such as inventing tales of persecution or claiming to have lived in a town or attended a religious institution that does not exist. Deliberate fabrication of documents — including documents demonstrating identity or corroborating key aspects of a claimant’s story — also constitutes asylum fraud.

While the provision of contradictory evidence or testimony can implicate fraud, its mere existence during an asylum claim does not by itself constitute asylum fraud. For example, the trauma and victimhood experienced by sexual assault victims often leads them to omit their full stories of assault early in the asylum process or in particular interview settings. In these cases and others, individuals with valid experiences of persecution may provide contradictory testimony that does not rise to the standard of asylum fraud.

How common is asylum fraud?

While concrete data is limited, the data we do have indicates that terminations of asylum status due to fraud is extremely uncommon.

There are two different departments responsible for adjudicating asylum cases: U.S. Citizenship and Immigration Services (USCIS) and the Executive Office of Immigration Review (EOIR). Neither USCIS nor EOIR release regular data on the number of cases terminated or investigated due to suspected fraud.

However, according to a 2015 Government Accountability Office (GAO) report, as overall asylum applications first began to rise during the early 2010s, USCIS terminations of asylum status due to discovered fraud decreased, falling from 103 in 2010 to 34 in 2014. USCIS granted 76,122 individuals asylum during the same time period. The report also found that EOIR opened just seven investigations into asylum fraud in 2014, a year when EOIR immigration judges granted asylum to 8,775 individuals.

Claims that asylum fraud is on the rise are unsubstantiated by available data, and often rest on the mistaken assumption that an overall increase in rejections is indicative of a rise in fraud.

USCIS Asylum Applications and Terminations Due to Fraud (2010-2014)

Source: GAO Report, DHS Annual Flow Report: Refugees and Asylees, 2014

What is the difference between asylum fraud and an unsuccessful asylum claim?

The simple denial of an asylum claim should not be confused with the presence of asylum fraud.

It is sometimes assumed that asylum seekers who have their claims rejected are attempting to misuse the asylum system or have come to the U.S. solely in search of economic opportunity rather than protection from harm. However, this is not always — or even often — the reason behind the denial of an asylum claim, and many individuals with genuine fear of being returned to their home countries are rejected not because of fraudulent claims but because they are otherwise deemed ineligible for asylum.

For example, in 2020, a Kenyan politician was subjected to repeated death threats and an assassination attempt for whistleblowing on crimes and corruption in his own political party. Upon seeking asylum in the U.S., an immigration judge acknowledged his story and fear of return as legitimate, but rejected his claim on the grounds that persecution stemming from one’s own political party constitutes a “personal matter” and is not covered by U.S. asylum law.

In another case in 2018, a woman brutally attacked by gang members in her home country of Honduras was denied asylum at the first stage of the process, not even allowed to pursue her case before an immigration judge. The woman was severely and visibly injured from the attack, and the asylum officer who decided her case likely did so not because her story was not credible but because under Trump-era regulations and precedent it is extremely difficult for victims of domestic abuse or gang violence to win asylum.

Asylum acceptance and denial rates vary significantly from judge to judge and from court to court. A 2017 Reuters report documented the case of two women who fled from the exact same circumstances in Honduras. Both served on the same parent-teacher association in the capital of Tegucigalpa; both worked together in an effort to combat gang recruitment of children in their district; and both received death threats aimed at both them and their children as a result of their activism. Upon fleeing to the U.S., one woman received asylum and the other’s claim was rejected.

These examples are not outliers, and in fact are becoming more and more common. An increasing number of asylum applicants are those fleeing gang-related violence or domestic abuse in Central America, experiences for which U.S. adjudicators have been extremely reluctant to grant protection. The proportion of asylum seekers who have access to legal counsel has declined in recent years, which has also contributed to rising denial rates.

What is being done to prevent asylum fraud?

The U.S. uses a number of procedural tools to address asylum fraud.

To start, both USCIS and the EOIR have established departments, personnel, and policy dedicated to the detection and prevention of fraud in immigration proceedings. Under USCIS, personnel in the Fraud Detection and National Security Directorate (FDNS) are embedded in asylum offices, working “closely with law enforcement and intelligence community partners” to investigate and resolve potential cases of fraud. FDNS reviews evidence, conducts site visits, produces reports, and can refer cases for criminal investigation. Under EOIR, the Fraud and Abuse Prevention Program (Fraud Program) investigates claims of fraud across the immigration court system and runs a centralized office for receiving complaints related to fraud.

In addition, there are several safeguards built into the asylum process that serve to curb fraud at the outset. Asylum seekers are subject to extensive biographic and biometric data collection — including the provision of fingerprints and photographs. This data is checked against the rest of the application and used to conduct thorough background, identity, and security checks.

Asylum officers and immigration judges may utilize Homeland Security Investigations’ (HSI) Forensic Laboratory to assist in determining the authenticity of any documentary evidence that is provided. Adjudicators can also submit evidence to Overseas Document Verification (ODV), in which documents are sent overseas to U.S. government officials in the applicant’s home country to verify their authenticity.

Asylum seekers are also required to repeatedly and consistently substantiate their claims, first written-down on an I-589 form and then during multiple rounds of testimony. Individuals who have been found to have filed a fraudulent asylum application are barred from applying again in the future.

Tools in the Fraud-Prevention Toolbox

How many asylum applicants miss their court hearings?

In general, the vast majority of asylum applicants attend all their court hearings.

A study published in the University of Pennsylvania Law Review found that between 2008 and 2018, 95% of applicants for asylum or other forms of protective relief attended every single on of their scheduled court hearings. For asylum seekers who were released into the U.S. with a Notice to Appear (NTA) in court and whose cases were decided in Fiscal Year 2019, 99% attended all their court hearings.

However, there are a number of different methods for determining court attendance, and certain kinds of immigration court proceedings and pilot programs have very poor attendance rates. This has led to significant confusion over overall rates of court attendance and arguments that many asylum seekers are using the asylum system as a way to fraudulently enter the U.S. and then never appear for their interviews or court dates.

When an applicant in immigration court misses a scheduled court hearing their asylum case is closed in absentia and their claim is rejected. Because absentia cases typically occur early in the asylum process (the applicant never attends their first court date), they can be overrepresented in “completed” cases statistics over particular time periods. This is because cases that are not closed in absentia are far more time consuming, likely to include multiple court appearances and a years-long wait in the backlog. The most accurate method of measuring absentia rates is to compare them not just to other completed decisions, but to pending decisions and cases that have otherwise been closed as well.

Another point of some confusion is that often absentia rates among asylum applicants are conflated with absentia rates among all migrants in removal proceedings. While asylum applicants almost always attend all their hearings, the absentia rate among all migrants in removal proceedings is slightly higher at approximately 17%.

Certain policies and pilot programs have led to drastic increases in absentia rates. Under the Migrant Protection Protocols (MPP), for example, asylum seekers were forced to wait in dangerous border regions in Northern Mexico and given unclear instructions about where, when, and how to attend their court dates. The result was that in at least 30,000 of 42,000 completed MPP cases, the applicant was unable to appear in at least one of their court dates (71%). In another limited asylum program in 2019 — an “expedited pilot” for family removal proceedings — approximately 90% of 7,000 cases resulted in in absentia removals. In recent months, the use of yet another expedited procedure has again resulted in low appearance rates.

Absentia Rates by Immigration Court Process

Source: University of Pennsylvania  Law Review, American Immigration Council, TRAC Immigration, Senate Judiciary Committee

Best practices to ensure migrants attend all their court dates include expanding access to legal counsel and ensuring that expedited court processes and asylum pilot programs retain clear guidelines and instructions on where, when, and how to attend hearings.

Are asylum seekers coached to present false claims?

While there have been concerning, high-profile incidents, evidence of widespread coaching of asylum seekers is sparse.

Asylum “coaching” refers to when legal entities or others encourage or assist prospective asylum applicants in developing a falsified or fraudulent story in order to receive asylum.

Asylum coaching does happen in the U.S., as evidenced by a few highly publicized cases. In 2012, a government probe found that a group of thirty lawyers in New York were encouraging thousands of predominantly Chinese asylum seekers to present false asylum claims. Some were officially charged as a result of the probe in 2018. In 2021, the Department of Justice charged two New York immigration attorneys and six Russian asylum applicants with similar crimes. Other, anecdotal instances of asylum coaching are published from time to time.

There is not evidence that this form of coaching or encouragement to present false claims is widespread. As noted above, asylum requirements are quite strict and claims often require precise testimony and the provision of substantial evidence during multiple stages of the adjudication process. Asylum officers and immigration judges have the discretion to require documentary evidence or to deny cases that are not well substantiated or that they suspect may be false.

 

The National Immigration Forum would like to thank policy intern Rebekah Rosenberg for her extensive contributions to this fact sheet.

Related Topics

Refugees/Asylees

Learn More

Read more about Legislative Bulletin — Friday, October 15, 2021

Legislative Bulletin

Legislative Bulletin — Friday, October 15, 2021

Read more about Infographic: Refugees Make America Stronger

Infographic

Infographic: Refugees Make America Stronger

Read more about Sikh Captain America

Podcast

Sikh Captain America