Thread by @MatthewSoerens

I've recently been asked: what share of asylum-seekers at the border have legitimate cases?

That's not the same question as "what percentage will ultimately be granted asylum?" because a major factor is the subjective decisions of distinct human beings

Which is why this matters

While US law is the same for every judge considering an asylum case, the law itself is sufficiently ambiguous that reasonable people can come to different conclusions with the same fact pattern

What is "persecution"? When is fear "well-founded"? What is a "social group"?

It's long been true that there are at least 3 factors likely to govern if you win an asylum case:

1) The strength of the evidence of the merits of your case
2) If you have legal representation (& how competent they are)
3) Who is adjudicating the case

We know (thanks to @TRACReports: trac.syr.edu/immigration/re…) that asylum approval rates vary wildly, from a judge who approves <1% of cases to a judge who approves 97% of cases

That variance is very unlikely to be that all the "legitimate" cases ended up with the same judge

@TRACReports So if we see asylum approval rates trending downward, it doesn't necessarily mean those seeking asylum today are less meritorious in terms of the facts

It may be:

1) That judges with resumes that suggest they will be less sympathetic & more skeptical are being hired

@TRACReports 2) As we're seeing in this news today, that judges with a record as being among the most harsh are being elevated to positions to set precedent-setting decisions that limit the discretion of lower level judges & adjudicators

@TRACReports 3) That asylum seekers are being kept in conditions, whether in detention or literally in a foreign country, where they are far less likely to access legal counsel

(Among those forced to "Remain in Mexico," only about 1% have legal representation: trac.syr.edu/immigration/re…)

@TRACReports 4) The Attorney General has exercised his authority over immigration judges (who are executive branch employees, not part of the independent judiciary) to override case law & re-interpret the law, such as a decision that a family is not a "social group" (upi.com/Top_News/US/20…)

@TRACReports (In June 2018, former AG Sessions used this authority to rule those claiming asylum on account of their social group could not be fleeing "private violence," i.e., a gang or a an abusive husband

Central American approval rates, in particular, plummeted humanrightsfirst.org/sites/default/…)

@TRACReports All of that to say: sometimes it's not as simple as "the law is the law." Reasonable people interpret ambiguous laws differently, and the decision of a judge is not always justice