Why Have Asylum Grant Rates Been Plummeting?

Summary

• Immigration judges’ asylum grant rates have been plummeting since the height of Biden-era bedlam. In the year and a half from February 2024 to August 2025, the grant rate fell from 51 percent to 19 percent.
• Given rampant asylum fraud, the declining grant rate is a welcome development. But this leaves unaddressed the question of what was the cause. The question is especially interesting because the decline actually began in the spring of 2024, before President Trump’s second inauguration. The grant rate was 48 and 50 percent in fiscal years 2022 and 2023 and was still at 51 percent in February 2024. And then it began a sustained decline that greatly accelerated starting in July 2024. The rate fell to 33 percent by January 2025 and has fallen even further under President Trump to the lowest rate in three decades.
• As to possibe causes:
  • Some argue that the Biden administration’s May 2023 Circumvention of Lawful Pathways [CLAP] rule and May 2024 Securing the Border initiative are responsible. But immigration judge asylum decisions are usually rendered years after aliens’ apprehension. The great bulk of cases decided toward the end of the Biden administration were of aliens apprehended before the CLAP rule or Securing the Border had even gone into effect.
  • It has been acknowledged that “the Biden administration’s parole policy allowed a lot of weak cases into the immigration court system”. None of the Biden administration’s unlawful categorical parole programs actually required aliens to demonstrate that they would be eligible for asylum. Thus, to the limited extent that Biden parolees actually applied for asylum and had their cases decided by the end of the Biden administration, this explanation is plausible.
  • Some cite a rise in adverse credibility findings by immigration judges. But there is precious little other than credibility for immigration judges to go on, given high levels of fabricated claims and the fact that asylum claimants generally do not have to provide any corroborating evidence whatsoever.
  • Some cite the Trump administration’s encouragement of pretermission — essentially, denial without a hearing — of legally insufficient applications for asylum. If so, this is a positive development. But it, of course, does not address the decline in grant rates under Biden.
  • Some cite the changing makeup of the immigration judge corps resulting from resignations and firings during the Trump administration. However, claims of political or ideological firings are hardly new, and in fact were made against the Biden administration.
  • Some claim that the Trump administration is encouraging ICE prosecutors to aggressively resist grants of asylum. If so, this is a positive development regarding aliens making bogus and unmeritorious asylum claims.
  • Some claim that immigration judges are attempting to please the Trump administration. Well, it is remarkable how average grant rates vary by administration. The average grant rate was 27 percent during the bulk of the Clinton administration, 41 percent during the bulk of the George W. Bush administration, 53 percent during the bulk of the Obama administration, 31 percent during the bulk of the first Trump administration, 49 percent during the bulk of the Biden adminisration, and 22 percent from February to August 2025 during the second Trump administration. Clearly, the priorities of each administration must play some role in the shifting approval rates.
• I propose two additional causes:
  • First, panic by the Biden and then Kamala Harris campaigns over the upcoming 2024 presidential election: It appears that the Biden campaign went into panic mode over widespread public consternation over President Biden’s self-induced border disaster, resulting in a deal with the Mexican government to ruthlessly crack down on U.S.-bound migrants traversing through Mexico. Was the panic’s impact as evident in U.S. immigration courts? The asylum grant rate stood at 51 percent in February 2024. By June 2024, it had fallen to 46 percent. Then, following President Biden’s disastrous debate against Donald Trump on June 27, the grant rate’s decline accelerated greatly — falling to 44 percent in July and to 33 percent by this January.

  • Second, the attorney general’s ability to force immigration judges to modify their interpretation of the asylum statute. In June 2018, President Trump’s attorney general made significant clarifications as to the meaning of key provisions of federal law’s asylum statute. In the six months leading up to these clarifications, the average asylum grant rate was 36 percent. In the six months following, the grant rate fell to 31 percent. Then, in June 2021, President Biden’s attorney general wholly undid these clarifications. In the four months leading up to the undoing, the grant rate was 36 percent. In the six months following, the grant rate jumped to 52 percent.

    The actions of attorneys general under Presidents Trump and Biden very likely played a role in the rapidly declining asylum grant rates during President Trump’s first administration — and in the rapidly increasing grant rates early in the Biden administration.

• As Barack Obama once said, “Elections have consequences.” Among those consequences seem to be changes in immigration judges’ asylum grant rates — whether because of an administration’s approach to immigration or because of a campaign’s electoral panic.

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The Plunge in Asylum Grant Rates

Immigration judges’ (IJ) asylum grant rates have been plummeting since the height of Biden-era bedlam when IJs were granting asylum like, well, like they resided in London’s Bedlam lunatic asylum (the Hospital of Saint Mary of Bethlehem). In the year and a half from February 2024 to August 2025, the grant rate (asylum grants divided by total decisions on the merits — grants and denials) fell from 51 percent to 19 percent, the lowest rate since since 1996’s 17 percent (yes, during the Clinton administration). Austin Kocher concluded this June that “The U.S. immigration courts have never seen such a dramatic reversal of asylum case outcomes over such a short period of time — ever.” (Emphasis in the original.) And he wrote in May that “These changes have happened with breathtaking speed. … Trump has already turned the ship of the immigration courts in his first 100 days.”

Why did this happen? Well, obviously, Donald Trump took over the presidency in late January 2025. Kocher wrote despondently that “the immigration courts … have become little more than an Asylum Denial Machine designed to feed into the Trump administration’s mass deportation program”. However, Kocher readily acknowledged that “as the data shows, while Trump may take the blame or the credit … he did not act alone”, explaining that:

The surge in denials … did not start with the Trump administration. It started with Biden. Let me say that again in case you are tempted to misrepresent reality: do not attribute the surge in asylum denials solely to the Trump administration; Biden is equally to blame (or praise, if you view this as a good thing).

As Kocher intimated, the asylum grant rate started falling well before President Trump’s second inauguration. Specifically, it started its plunge in the spring of 2024, during the Biden administration’s final year. As seen in the following figure, the overall grant rate was 48 percent in fiscal year 2022 (October 2021-September 2022) and 50 percent in fiscal year 2023. It stayed at that rarefied level through February 2024 — 53 percent in October 2023, 52 percent in November, 51 percent in December, 49 percent in January 2024, and 51 percent in February. And then something happened. The grant rate began a sustained and steady decline until it hit 35 percent in December 2024 and 33 percent in January 2025 (three quarters of which occurred during the Biden adminstration). The grant rate fell further under the Trump administration, dropping to 26 percent in February of this year, 24 percent in March, 22 percent in April, 21 percent in May, 24 percent in June, 21 percent in July, and 19 percent in August.

Here is the data on IJ asylum grant rates since 1996, derived from data provided by the Transactional Records Access Clearinghouse (TRAC) for fiscal years beginning in 2001 and by the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR, home of the immigration courts) for fiscal year 2000 and earlier. The highly respected TRAC is “a data gathering, data research, and data distribution organization that was founded in 1989 at Syracuse University” providing “comprehensive information about staffing, spending, and enforcement activities of the federal government” based on the “systematic and informed use of the Freedom of Information Act”. EOIR does not provide monthly figures, and its last reporting period is through June 2025.

Kocher wrote that “the steady increase” in denial rates (generally the obverse of the grant rate¹) “began in September of 2023” and Jason Dzubow wrote that “After [August 2023], the number of denials began to climb rapidly and steadily.” Well, not exactly. Looking at the data set Kocher linked to, the denial rate was 44 percent in September 2023, rising to 48 percent in February 2024. This can hardly be considered a notable increase, especially considering that the denial rates in February, March, and April 2023 were 51 percent, 49 percent, and 51 percent, respectively.

Next, Kocher stated that “by the end of 2024, immigration judges during the Biden administration were issuing denials at prior Trump I rates.” Well, not exactly. True, by December 2024, the denial rate had risen to 64 percent. But in fiscal year 2018, the denial rate was 66 percent, rising to 69 percent in 2019 and 71 percent in 2020 (all Trump years).

A Good Thing

Per Kocher, I do believe the declining asylum grant rate is a good thing. First, as my colleague Mark Krikorian has written:

• Asylum … represents a profound surrender of sovereignty, a limitation on the American people’s ability to decide which foreigners get to come here from abroad.

• An unprecedented migration wave … has turned the Refugee Convention … [into] a crowbar used by the post-national Left to pry open the borders of democratic societies contrary to the will of their citizens.

As Krikorian concluded in Limen, the Journal of the International Network for Immigration Research, “Given the effectively unlimited number of people who have the means to use an asylum claim as a stratagem to move to a richer country, the 1951 refugee framework and everything flowing from it needs to be scrapped.”

Second, as Krikorian wrote at the beginning of the Biden border crisis, “Asylum is driving the current border crisis, with illegal aliens, coached by smugglers and U.S. immigration lawyers, turning themselves in and claiming a fear of return, thus initiating the asylum process,” and as he wrote in Limen, “the goal of illegal immigrants is not so much to receive asylum … but rather merely to apply … and then go about your new life secure in the knowledge your case may not be heard for years, and even if you are rejected, you are unlikely to be removed”. (Emphasis added.)

The former Immigration and Naturalization Service (INS) reported that in fiscal year 1974, only 2,716 aliens requested, and only 294 were granted, asylum. Fast forward five decades: According to EOIR, in fiscal year 2024, aliens filed 905,632 asylum applications with the immigration courts and in 2025 (through June), they filed 757,787 (an annualized level of over one million applications).

In 1974, even with such low numbers, INS concluded that “Many [asylum] requests were found to be frivolous and were being used as a stratagem to remain longer in the United States or to avoid deportation.” The level of fraud has since ballooned along with the number of claimants.

In 2011, Sam Dolnick reported in the New York Times that:

• A shadowy industry dedicated to asylum fraud thrives in New York. … Immigrants peddle personal accounts ripped from international headlines.

• The embellished stories go in and out of fashion along with the news of the day. …

  West Africans claim genital mutilation or harm from the latest political violence. Albanians and immigrants from other Balkan countries claim they fear ethnic cleansing. Chinese invoke the one-child policy or persecution of Christians, Venezuelans cite their opposition to the ruling party, and Russians describe attacks against gay people. …

  Of course, thousands of those claims are legitimate. But each cataclysm provides convenient cover stories for immigrants desperate to settle here for other reasons. … “When there’s a problem anywhere, a horrible slaughter in Somalia, wherever, the first couple of years of those cases are very real,” said … an immigration lawyer in Manhattan. “Then the next four or five years, they just mimic those stories.”

Three years later, the New York Times published a piece titled “Asylum Fraud in Chinatown: An Industry of Lies”, reporting that:

A Chinese woman … had applied for asylum, claiming that she had been forced to get an abortion in China … and she was anxious about her coming interview. …

She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false.

But the lawyer … told her to relax. … “You are making yourself nervous. … All you would be asked is the same few rubbish questions. … Just make it up[.]”

[The lawyer] and a paralegal briefed her on the sequence of fictitious events she had to memorize. …

He said asylum was nearly a foregone conclusion: Cases like hers were getting approved without a problem. “It’s too easy,” he said.

This was not an isolated incident:

• Peter Kwong, a professor at the City University of New York … said it was an open secret in the Chinese community that most asylum applications were at least partly false, from fabricated narratives of persecution to counterfeit supporting documents and invented witness testimony.

• False asylum petitions are among the most common forms of immigration fraud, in part because they are difficult to detect, experts said.

• [A]sylum fraud cuts across all immigrant groups, officials say.

• And while many such claims are legitimate, officials and industry specialists said, an untold number are not. Mr. Kwong said the cases were easy to fake.

• Narratives and documents are recycled from client to client, with the names and dates changed — though sometimes the lawyers forget to do even that.

Can you imagine the New York Times allowing such stories to be published today?

Why Did the Approval Rates Fall?

Kocher concluded that “I am not able to provide a definitive explanation for why asylum denials are so high.” But he did “propose a few plausible, and likely mutually reinforcing, reasons why this trend will likely continue”. I will evaluate his and Dzubow’s proposed plausible reasons.

Proposed “Plausible” Reason No. 1: The CLAP

Kocher’s first proposed plausible reason is that:

The most important reason that attorneys have cited so far is the Biden administration’s Circumvention of Lawful Pathways [CLAP] rule in May 2023 … and Biden’s Securing the Border issued in June 2024. These policies combined to make a lot of recently arrived asylum seekers ineligible for asylum if they did not enter through CBP One at a port of entry. … These policies appear to be the foundation of the rise in denials. [Emphasis added.]

Dzubow stated that:

Starting on May 11, 2023, asylum seekers who entered at the U.S.-Mexico border and who did not make an appointment using the CBP-One app are barred from asylum. Though there are some narrow exceptions, many migrants are being denied asylum because they failed to use the app, and I expect this contributes to the higher denial rate in court. [Emphasis added.]

However, this proposed plausible reason is quite implausible. Let me explain why. First, consider that Biden’s CLAP became effective on May 11, 2023. It was then vacated by the U.S. District Court for the Northern District of California on July 25, 2023, in East Bay Sanctuary Covenant v. Biden (the district court staying its order for 14 days). The Ninth Circuit stayed the district court’s order on August 3, 2023, and vacated² the order on April 10, 2025 (in effect vacating a vacation). The CLAP by its own terms expired as of May 11, 2025. Securing the Border became effective on June 5, 2024, and was later memorialized in somewhat modified form in a final rule published in the Federal Register in October 2024.

Thus, even assuming for the sake of argument that the CLAP and Securing the Border increased the odds of asylum applications (for aliens subject to their terms) being denied (a highly contestable assertion, given that, as my colleague Elizabeth Jacobs concluded, the CLAP was “so fraught with exceptions and loopholes that the general public should expect few prospective migrants to actually be deterred”), the great bulk of the asylum applicants who were denied toward the end of the Biden administration were not subject to the CLAP or Securing the Border.

Why? Because asylum decisions by IJs are usually rendered years after apprehended aliens are issued Notices to Appear (NTA) in immigration court. The great bulk of the cases decided by IJs towards the end of the Biden administration were of aliens apprehended before the CLAP or Securing the Border had even gone into effect.

Consider data provided by TRAC showing that in fiscal year 2023, aliens claiming asylum in immigration court whose cases were pending were waiting an average of 1,444 days from the filing of an NTA to their next scheduled hearing, and in fiscal year 2024 (through December 2023 — the first quarter of the fiscal year) were waiting an average of 1,424 days. The average wait was essentially four years — and that is just until their next scheduled hearing! TRAC estimated “the average backlog wait times from when the case was filed in the Immigration Court to when their asylum hearing will be scheduled and their claims heard” to be “currently 1,572 days, or 4.3 years”.

Why so long? Data provided by TRAC indicates that in fiscal year 2022, while IJs decided 55,637 asylum cases, a backlog of 756,690 asylum cases remained, in 2023, while IJs decided 75,144 cases, a backlog of 1,009,625 cases remained, and in 2024, while IJs decided 78,383 cases, a backlog of 1,101,819 cases remained. Thus, in each of the three years, decided cases represented only 7 percent of the ever-growing backlog.

But TRAC concluded at the end of 2022 that “There is no simple answer to the question of how long asylum seekers have to wait before they can have their claims heard and decided.” Why? “Under Biden administration initiatives, including the Dedicated Docket and the Asylum Officer Rule initiatives, some newly arriving asylum seekers are being moved to the head of the line and their hearings expedited.” TRAC’s 4.3-year estimate apparently did not include aliens on the Dedicated Docket, since between mentioning the Dedicated Docket and its 4.3-year estimate, TRAC stated that “For most others who are not detained, especially those who entered the backlog queue a while ago, the wait can be very long.”

As DHS’s “Asylum Officer Rule” allows DHS asylum officers to grant asylum, such asylum grants are outside of the purview of my discussion (which is limited to asylum grants by IJs). So what is the average wait time for all asylum decisions by IJs — on the regular docket and on the dedicated docket, colloquially known as the “rocket” docket? TRAC reported that for asylum cases decided by IJs in fiscal year 2022, the average time to completion for dedicated docket cases was 276 days vs. 1,594 days for regular cases. Overall, TRAC provided data that indicated that 56 percent of all decisions involved a period from NTA to closure of over three years, 14 percent more than a year and a half to less than three years, 26 percent more than three months to less than 18 months, and 5 percent up to three months.

Assuming these proportions held through the end of the Biden administration, 70 percent of cases decided in October 2024 (at the very least) were not subject to the CLAP or Securing the Border.

Proposed “Plausible” Reason No. 2: The Biden Administration’s Pernicious Perversion of Parole

Kocher stated that:

I want to mention a further Biden-era explanation that a few trusted colleagues have shared with me in private but not necessarily felt comfortable saying out loud in certain settings. And to be clear, I have wondered — and worried — about this very thing, only to feel some vindication for my concerns. Simply put: the Biden administration’s parole policy allowed a lot of weak cases into the immigration court system. This is not the same as saying that these cases are fraudulent, nor does it imply that asylum applicants or their attorneys are acting in anything other than good faith. But it does mean that a lot of migrants were promised a bite at an apple that almost certainly was far out of reach. [Emphasis added.]

I appreciate Kocher’s refreshing candor, but I do have to translate “weak cases” as “bogus or unmeritorious cases”, and I guess good vs. bad faith is in the eye of the beholder. In any event, I have written frequently about the Biden administration’s abuse of the parole power (see, e.g., “The Pernicious Perversion of Parole” and “Biden’s Perversion of Parole Is a Constitutional Crisis in the Making”). But let me quote the House Committee on Homeland Security on the abuse, from the committee’s report on “The Impeachment of Alejandro N. Mayorkas, Secretary of the Department of Homeland Security”:

Secretary Mayorkas uses parole as a default tool to bring large populations of specific demographics into the United States. He has created, reopened, or expanded a series of categorical parole programs never authorized by Congress for foreign nationals outside of the United States, including for certain Central American minors, Ukrainians, Venezuelans, Cubans, Haitians, Nicaraguans, Colombians, Salvadorans, Guatemalans, Hondurans, and more generally for inadmissible aliens to be able to schedule appointments at the border through the CBP One application to be considered for (and overwhelmingly granted) parole.³

The committee’s report disclosed that “in FY 2023 alone, DHS granted parole to over 810,000 aliens through unlawful categorical parole programs”.

The Biden administration stated that its goal to “was create additional safe and orderly processes for people fleeing humanitarian crises to lawfully come to the United States”. Well then, why didn’t his administration admit them as refugees? Because it well knew that they wouldn’t qualify — they simply did not face persecution. What they certainly faced were low wages and scarce job opportunities (compared to the U.S.) in their home or adopted countries. What they may have faced were gangs or generalized violence at home. But these are not grounds for refugee status. Ironically, many ended up in gang-infested U.S. cities with far higher murder rates than in their communities abroad.

What was motivating President Biden? As I have written:

He has decided to conscript parole to fulfill his agenda of, as Mark Krikorian … has observed, stigma removal, the conversion of as much of the population of illegally entering economic migrants as it can into people supposedly fleeing persecution or violence or harm of one sort or another. This could justify (at least in the administration’s own mind) the abandonment of any semblance of immigration law enforcement as a goal, replaced with, in DHS Secretary Mayorkas’ words, “safe, orderly, humane, and lawful pathways for migration”.

None of Biden’s categorical parole programs actually required that the beneficiaries of their largesse actually apply for asylum, or even demonstrate that they would be eligible if they were physically present in the United States! In fact, as DHS noted on March 25 of this year:

[O]n October 4, 2024, the prior administration announced [citing a CBS News story] that there was no re-parole process [under the categorical parole programs for inadmissible aliens from Cuba, Haiti, Nicaragua, and Venezuela], informing participants that, ‘‘if you have not sought a lawful status [i.e., by applying for asylum] or period of authorized stay, you will need to leave the United States before your authorized parole period expires, or you may be placed in removal proceedings after your period of parole expires.’’

No wonder that “the Biden administration’s parole policy allowed a lot of weak cases into the immigration court system”. So, to the limited extent that the cases of Biden parolees who actually applied for asylum were decided by the end of the Biden administration, this proposed “plausible” reason might in fact be plausible.

Proposed “Plausible” Reason No. 3: the Credibility Gap

Kocher wrote that:

Immigration attorneys cite a rise in adverse credibility findings in asylum cases for reasons they characterize as obsessively trivial. Since asylum is really up to the judge, and since credibility — or the judge’s finding as to whether the applicant is believable or not—is an essential part of the asylum process, credibility is a convenient (and mostly incontestable) way to deny asylum cases.

Guilty as charged. IJs consider an alien’s credibility in evaluating asylum claims — just as jurors consider witnesses’ credibility in determining the guilt or innocence of criminal defendants — even in death penalty cases.

In the asylum context, there is precious little other than credibility for IJs to go on, as so many claimants recite memorized narratives of persecution provided by their smugglers or even by immigration lawyers. In most cases, asylum claimants do not have to provide any corroborating evidence whatsoever. Section 208 of the Immigration and Nationality Act [INA] provides that “The testimony of the [asylum] applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate tha the applicant is a refugee.” (Emphasis added.) Further, even if an IJ “determines that the applicant should provide evidence that corroborates otherwise credible testimony”, the alien need not produce such evidence if they “do[] not have the evidence and cannot reasonably obtain the evidence”.

In terms of evaluating the credibility of asylum claimants, § 208 provides that:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

As my colleague Andrew Arthur has explained, “The Ninth Circuit had gone rogue in its reversals of IJ credibility determinations it didn’t like … substituting its impressions of the evidence for the IJs’ and BIA’s [Board of Immigration Appeals], and [in 2005] Congress stepped in to correct it.” Arthur also noted that “I may just be blowing my own horn, because as a staffer I drafted [the INA’s current asylum credibility standard] and thereafter negotiated the amendments to it.” Now, Arthur may have been blowing his own horn, but he did in fact do the drafting and the negotiating.

In the 2005 conference report to the appropriations bill containing the current credibility standard, the House-Senate Conference Committee explained that:

• This [provision] will allow [IJs] and the BIA [to follow commonsense standards in assessing the credibility of asylum applicants better allowing them to identify and reject fraudulent claims. … [S]uch a determination must be reasonable and take into consideration the individual circumstances of the specific witness and/or applicant.

• Congress expects that the trier of fact will describe those factors that form the basis of the trier’s opinion. This is true even where the trier of fact bases a credibility determination in part or in whole on the demeanor of the applicant.

And the report explained that:

Courts have recognized the expertise that [IJs] bring to this task. As the Ninth Circuit has held … “An [IJ] alone is in a position to observe an alien’s tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.”…

In assessing an applicant’s demeanor for purposes of making a credibility assessment, Congress anticipates that triers of fact will rely on those aspects of demeanor that are indicative of truthfulness or deception. … [I]n explaining why it “granted special deference to the IJ’s eyewitness observations regarding demeanor evidence,” the Ninth Circuit … [held that] “Weight is given to the … judge’s determinations of credibility for the obvious reason that he or she ‘sees the witnesses and hears them testify, while the [BIA] and the reviewing court look only at cold records.’ All aspects of the witness’s demeanor — including the expression of his countenance, how he sits or stands, whether he is inordinately nervous, his coloration during critical examination, the modulation or pace of his speech and other non-verbal communication — may convince the observing trial judge that the witness is testifying truthfully or falsely.”

Limiting the plausibility of this proposed plausible reason is that the Ninth Circuit has proven very resistant to Congress’s 2005 instructions. To give one example, Arthur wrote in 2021 that:

The Supreme Court issued an opinion … in Garland v. Ming Dai, reversing an illogical Ninth Circuit rule that had held that a reviewing court must treat an alien’s testimony in support of an application for asylum and statutory withholding as credible and true unless the [IJ] or the [BIA] made an explicit adverse credibility determination. The unanimous decision is a triumph of common sense.

Proposed “Plausible” Reason No. 4: Welcome to the Asylum Denial Machine

Kocher wrote that:

Internal policies are incentivizing, or perhaps even requiring, asylum denials. … [I]nternal memos from EOIR Acting Director Sirce Owens are twisting the knobs of the Asylum Denial Machine to gear toward denials by mandating that applications are effectively rejected as insufficient for a mistake as little as failing to check a box. [T]he administration can’t exactly sit in court with each judge and tell them how to rule in every case. Yet the administration is finding ways to predispose cases towards rejections and denials without ever having to tell judges how to decide on the merits, if they prevent cases from getting to the real merits in the first place.

Kocher was referring to Acting Director Owens’s April 11 memo “[p]rovid[ing] guidance on the legal standards related to the pretermission [essentially, denial without a hearing] of a legally insufficient application for asylum”. The memo stated that:

• [A]djudicators are not prohibited from taking — and, in fact, should take — all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal.

• If an alien fails to set forth prima facie eligibility for relief, such application generally can be pretermitted. Although it is well-settled that aliens must demonstrate prima facie eligibility for relief for certain applications, in certain contexts there appears to be a misapprehension by adjudicators regarding whether those same principles apply to applications for asylum.

• EOIR’s interpretation of applicable law is that adjudicators may pretermit legally deficient asylum applications without a hearing.

I am not sure what exactly Kocher finds so objectionable in Owens’s memo, but if pretermission is resulting in lower asylum grant rates, I would consider that a salutory result.

Proposed “Plausible” Reason No. 5: The Great IJ Replacement Theory

Kocher wrote that:

Many immigration judges that do not explicitly align with the Trump administration’s hostility toward asylum seekers have either refused to participate (i.e., resigned) or been summarily fired. In this way, the composition of immigration judges on the bench today differs from what it was just six months ago. My understanding from reliable sources is that judges who remain on the bench do not need additional policy to be told how to decide asylum cases; judges clearly understand their marching orders and understand the consequences of stepping out of line.

But Kocher did clarify that this and certain other of his proposed “plausible” reasons “don’t explain the increase in denial rates during the Biden administration”, though they provide “evidence for why the increase has continued and why it is likely to remain high for the duration of the Trump administration”.

Allegations of an incoming administration’s replacement of IJs with ones more to its liking are hardly novel. In fact, on July 20, 2022, Sen. Charles Grassley, then the ranking Republican on the Senate Judiciary Committee, and Jim Jordan, then the ranking Republican on the House Judiciary Committee, sent a letter to President Biden’s Attorney General Merrick Garland expressing exactly this concern:

• We write about your decision to terminate the employment of multiple [IJs] who were hired during the Trump Administration. If true, your termination of these [IJs] because of their political ideology suggests that [DOJ] acted in violation of the Civil Service Reform Act … which specifically prohibits discrimination on the basis of political affiliation. …

  According to a recent press report, “[t]he Biden administration has been quietly packing the nation’s immigration courts, ousting Trump-hired judges and installing judges deemed to be friendlier to the immigrants whose cases they hear … .” [S]uch a purge is reprehensible and potentially illegal.

• At least some of these terminations appear to have been the result of a coordinated effort between the Biden-Harris Administration and far-left immigration advocates. In fact, in tweeting about two of the terminations, one such advocate commented: “I’m immensely proud to have participated in this campaign.”

On November 6, NPR reported that “There were 700 immigration judges at the start of the year. Over the past 10 months, EOIR has lost more than 125 judges to firings and voluntary resignations.” Of course, once data becomes available, it will be very illuminating to compare particular IJs’ asylum grant rates before and after President Trump’s inauguration.

Proposed “Plausible” Reason No. 6: Resist!

Dzubow wrote that:

DHS (the prosecutor in Immigration Court) has been more aggressively resisting asylum approvals. In one of my recent cases, for example, the DHS attorney explicitly told me that she could not agree to a grant of asylum, even though she would have agreed during the [Biden] Administration. … [I]n general, when DHS more strongly opposes relief, IJs are more likely to deny.

I should certainly hope that Secretary of Homeland Security Kristi Noem and U.S. Immigration and Customs Enforcement (ICE) leadership are encouraging ICE prosecutors to aggressively resist the grant of asylum to aliens making bogus and unmeritorious asylum claims in their removal proceedings.

Proposed “Plausible” Reason No. 7: Plausible Pliability

Dzubow wrote that “Another, less pleasant, possibility is that IJs are adjusting their decision-making to please the new boss.” He did admit that “To some extent, it is reasonable for judges to follow the lead of the Administration in office, as long as they continue to follow the law.”

Dzubow concluded that “Whether judges’ desire to please the current Administration (and protect their jobs) is contributing to the higher denial rates, we really do not know.” But he wrote that:

I worry that the Administration’s well-publicized efforts to fire people perceived as disloyal may push some IJs to deny more cases. The IJs that I know personally are people of great integrity, and I think they are not particularly susceptible to such intimidation, but when your job and livelihood are on the line, it does create perverse incentives.

Well, it is remarkable how average grant rates change depending on the administration. The average grant rate during fiscal years 1996-2000 during the Clinton administration was 27 percent (varying by year from 17 to 36 percent). The average grant rate during fiscal years 2002-2008 during the George W. Bush administration was 41 percent (varying from 38 to 47 percent). The average grant rate during fiscal years 2010-2016 during the Obama administration was 53 percent (varying from 44 to 67 percent). The average grant rate during fiscal years 2018-2020 during the first Trump administration was 31 percent (varying from 29 to 34 percent). The average grant rate during fiscal years 2022-2024 during the Biden administration was 49 percent (varying from 47 to 50 percent). The average grant rate from February to August 2025 during the second Trump administration was 22 percent. Here is the data on IJ asylum grant rates since 1996, derived from TRAC for fiscal years beginning in 2001 and from EOIR for fiscal year 2000 and earlier.

Clearly, the priorities of each administration must play some role in the shifting approval rates.

Two More Truly “Plausible” Reasons

There are two additional explanations for plummeting asylum grant rates — the first having to do with the Biden plunge and the second with the Trump plunge.

Was the Biden Plunge Tied to the 2024 Presidential Election Campaign?

Could panic by the Biden and then Kamala Harris campaigns over the upcoming 2024 presidential election have played a role in plummeting asylum grant rates?

Consider that polling conducted by Gallup in August 2021 (see “complete question responses and trends”) indicated that 76 percent of Democratic respondents, 37 percent of independent respondents, and 9 percent of Republican respondents approved of Biden’s handling of immigration. Then:

• Gallup’s polling in February 2023 (see “complete question responses and trends”) indicated that approval of Biden’s handling of immigration had decreased by 14 percentage points among Democrats — to 62 percent, six percentage points among independents — to 31 percent, and three percentage points among Republicans — to 6 percent.
• Gallup’s polling in February 2024 (see “complete question responses and trends”) indicated that since the prior February, Democrats’ approval had decreased by an additional seven percentage points — to 55 percent, independents’ had decreased by an additional seven percentage points — to 24 percent, and Republicans’ had decreased by an additional three percentage points, to 3 percent.

Thus, from early to late in the Biden administration, Democrats’ support of President Biden’s handling of immigration had decreased by 21 percentage points, or 28 percent, independents’ had decreased by 13 percentage points, or 35 percent, and Republicans’ had decreased by six percentage points, or 67 percent. I discussed additional instructive polling results here.

Consider that Todd Bensman, my former colleague and now senior advisor to Border Czar Tom Homan, reported for the Center for Immigration Studies in February 2024 that:

Just a month ago, thousands of economic migrants a day crossing illegally from [Piedras Negras, Mexico] over the Rio Grande into Eagle Pass, Texas, submerged U.S. Border Patrol and Texas State military forces, mesmerized the international media, and — significantly — pounded Joe Biden’s re-election poll numbers.

Consider that on July 16, 2024, Politico reported that “A migrant surge under Biden … has stirred a visceral public response beyond the border states, including in heavily Democratic cities,” and on the next day, Vox reported that “Nonwhite voters and especially Latino voters are more likely than in the past to want less immigration, and anti-immigrant sentiment is rising across all partisan groups, including among Democrats.” Consider that on election day, a headline in the New York Times proclaimed that: “Voters Were Fed Up Over Immigration. They Voted for Trump. Voters across party lines shifted to the right on immigration. They blamed Biden-Harris for failing to control the chaotic border.” The story noted that:

• The surge in migration across the southern border, which reached record levels during the Biden administration, has reverberated across the country and hardened many Americans’ views on immigration.

  While Republican voters have shown the biggest shift, Democrats and independents have also moved to the right, according to polls conducted in recent months.

• Republicans, Democrats and independents interviewed by The Times blamed the Biden administration for failing to acknowledge the chaos at the border and promptly take aggressive steps to address it.

I could see these polling results, and the public’s souring attitude toward illegal immigration, causing consternation in the Biden campaign. Could such consternation have precipitated damage control by the Biden administration in the form of ramped up immigration enforcement and lower asylum grant rates?

Well, it certainly did precipitate ramped up immigration enforcement … in Mexico! Bensman further reported in his piece that:

[B]ecause the Biden campaign simply could not brook the bad polling … the last and only migrants who can be found anywhere in the Mexican border town of Piedras Negras today cower in fear behind the skirts of nuns inside the tall, barbed-wire-rimmed compound of a Catholic Church-run shelter called Casa Del Migrante … hounded by a suddenly wider-than-usual assortment of Mexican army, state police, and national immigration service predators.

Bensman asked “So what exactly happened to so flip the tables only a month after record-smashing crossings into Texas and other states that was reaching 12,000 and 14,000 every day, border-wide, and is now around a less media-appealing 5,000 or 6,000 a day?” He concluded that:

One answer is media coverage and polling. President Biden, facing devastating poll numbers from the fall months’ escalating border catastrophe, somehow maneuvered Mexico President Manuel Lopez-Obrador into doing the dirty work necessary on his side to quickly calm the most camera-visible chaos on the American side.

After Biden and his chief lieutenants returned from mysterious diplomatic missions to Mexico City in late December with a still-secret deal in hand, Mexico’s central government mounted one of the most epic domestic anti-illegal-immigration operations in recent memory.

Bensman noted that “Some of the operations done at Biden’s behest have proven ruthless.” He explained that:

• At Biden’s apparent urging, the Mexican army, national guard, and Mexican immigration officers rushed into the northern borderlands just after Christmas and, with state police, began rounding up tens of thousands of migrants in Piedras Negras and many other cities. They force-fed these thousands into a conveyor belt of government buses and airplanes delivering them to Mexico’s farthest southern states along the border with Guatemala … and blocked them there with bureaucracy and new road checkpoints that filter for migrant riders.

• [T]roops and state police — finally, for the first time in the three-year mass migration crisis — now roust and block immigrants farther south from free rides atop Mexico’s “La Bestia” cargo trains, a tactic that both the Biden and Lopez-Obrador administrations had wittingly allowed. … The Mexican press is reporting operations in the border cities of Tijuana, Juarez, and Matamoros, where the military recently bulldozed a massive immigrant camp across from Brownsville, Texas, and dug anti-pedestrian trenches, “under U.S. pressure”, one Mexican newspaper reported.

Bensman concluded that “the tactics are having a real impact on the border crisis” and noted that:

The[ migrants inside Casa del Migrante] do not so much fear authorities roughing them up as that the one-way trip back south to entrapment … would represent the loss of thousands of dollars they’d spent on smugglers to get this far north.

And Bensman reported that “One source with access to senior U.S. Customs and Border Protection [officials] told me the Mexican operation is set to last until after the American election, although this is uncorroborated.”

Was the impact of the Biden campaign’s panic as evident in U.S. immigration courts as it was in Mexico? The asylum grant rate was as high as 53 percent in October 2023. In February 2024, it stood at 51 percent — about the same as the 50 percent average in fiscal year 2023. But by June 2024, the grant rate had fallen to 46 percent — a five percentage-point or 10 percent decline. This could indicate that electoral concerns had some effect.

Then, in July 2024 the grant rate fell by two more percentage points, to 44 percent, and by October 2024 it had fallen another seven percentage points, to 37 percent. In November, when the election occurred, the grant rate fell another two percentage points, to 35 percent. And by January 2025 (three-quarters of which occurred during the Biden administration), it had fallen another two percentage points to 33 percent — a 28 percent decline from June. Here is the data, provided by TRAC.

What could have happened in June 2024 to cause the grant rate’s floor to collapse? Well, President Biden’s disastrous debate performance against President Trump occurred at the end of June — on June 27. On July 21, the Associated Press reported that:

President Joe Biden dropped out of the 2024 race for the White House … ending his bid for reelection after a disastrous debate with Donald Trump that raised doubts about the incumbent’s fitness for office with the election just four months away. It was a late-season campaign thunderstrike unlike any in American history.

The decision comes after escalating pressure from Biden’s Democratic allies to step aside following the … debate, in which the 81-year-old president trailed off[ and] often gave nonsensical answers.

Thus, there is evidence that the Biden campaign’s concern about immigration’s impact on the upcoming election might have played a role in the asylum grant rate’s moderate decline through June 2024, and that the post-debate panic might have played a role in the sudden acceleration of the decline.

Was the Trump Plunge Tied to His Attorney General’s Ability to Force Immigration Judges to Modify Their Interpretation of the Asylum Statute?

Could the attorney general’s ability to force IJs to modify their interpretation of the asylum statute have played a role in the rapidly declining asylum grant rates during President Trump’s first administration — and in the rapidly increasing grant rates early in the Biden administration? Very likely yes.

There is a method set forth in DOJ regulations by which the attorney general can influence the decisions of IJs by altering their required interpretation of relevant statutory provisions. The INA provides that the “determination and ruling by the Attorney General with respect to all questions of law [relating to the immigration and naturalization of aliens] shall be controlling” on the federal government. While DOJ regulations provide that the BIA is the “appellate body charged with the review” of IJ decisions, and “through precedent decisions, [it] shall provide clear and uniform guidance to DHS, the [IJs], and the general public on the proper interpretation and administration of the [INA] and its implementing regulations”, the regulations at the same time make clear that “decision[s] of the [BIA] shall be final except in those cases reviewed by the Attorney General in accordance with” the following:

[The BIA] shall refer to the Attorney General for review of its decision all cases that … [t]he Attorney General directs the [BIA] to refer to him … [t]he Chairman or a majority of the [BIA] believes should be referred to the Attorney General for review … [or t]he Secretary of Homeland Security … refers to the Attorney General for review.

As Emma Carroll explained in the University of Colorado Law Review, while “The attorney general … created the BIA … to render final decisions in immigration adjudications … such decisions have always been subject to the attorney general’s review.” Further, under the current regulations, “the attorney general may review any type of case, with any type of disposition, at any time, and for seemingly any purpose”. Of course, the attorney general’s decisions on review may themselves be later overturned by a federal court or by a future attorney general.

On June 11, 2018, President Trump’s Attorney General Jeff Sessions overturned a BIA decision on review in Matter of A-B-, in the course of which he made important clarifications as to the meaning of key provisions of the INA’s asylum statute (§ 208). As the official synopsis summarizes:

• An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

• The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

• An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

In a typical reaction from the immigrant advocacy community, the Immigrant Legal Resource Center proclaimed that Matter of A-B- “highlights the Trump administration’s broad and unrelenting attacks on due process for asylum seekers”.

In the six-month period from December 2017 through May 2018 leading up to Matter of A-B-, IJs’ average asylum grant rate was 36 percent. But in the six-month period from July 2018 through December 2018 following Matter of A-B-, the average asylum grant rate fell to 31 percent — a drop of five percentage points, or 14 percent. Here is the relevant data provided by TRAC.

This decline certainly lends itself to the inference that Matter of A-B- had an impact on grant rates. Such an inference would certainly be bolstered had Matter of A-B- been rescinded and grant rates subsequently risen. That is exactly what happened.

On June 16, 2021, President Biden’s Attorney General Merrick Garland decided Matter of A-B-, in which he ordered that (as described in the official synopsis) “Matter of A-B- … and [the subsequent] Matter of A-B-[II] are vacated in their entirety” and that IJs and the BIA “should no longer follow A-B- I or A-B- II when adjudicating pending or future cases” but should instead “follow pre-A-B- I precedent”. The Catholic Legal Immigration Network, Inc. proclaimed that “Attorney General Garland’s decisions to vacate some of the most harmful Trump-era attorney general decisions on asylum is a very welcome development for asylum representatives.”

In the four-month period leading up to Attorney General Garland’s decision from February 2021 (President Biden’s first full month in office) through May 2021, the average asylum grant rate was 36 percent. But in the six-month period from July 2021 through December 2021 following Garland’s decision, the average grant rate jumped to 52 percent — an increase of 16 percentage points, or 44 percent. Here is the relevant data derived from TRAC. Consider the inference bolstered.

On September 2, 2025, Attorney General Pam Bondi issued Matter of S-S-F-M-, overruling Attorney General Garland’s decision and restoring Matter of A-B- and Matter of A-B-[II] in all pending or future cases. It will be interesting to see, once data becomes available, whether the average grant rate continues its decline after hitting the 19 percent level in August.

Conclusion

As Barack Obama once said, “Elections have consequences” (further telling House Majority Leader Eric Cantor (R-Va.) “and I won”). I would add that “Election campaigns also have consequences.” Among those consequences seem to be changes in immigration judges’ asylum grant rates — whether because of an administration’s approach to immigration or because of a campaign’s election panic.

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End Notes

¹ There are discrepancies between Kocher’s figures and mine, because I compare only the asylum grant and denial rates, while Kocher also includes a relatively small number of grants of non-asylum relief as grants for purposes of calculating the denial rate.

² East Bay Sanctuary Covenant v. Trump, 134 F.4^th 545 (9^th Cir. 2025).

³ In full disclosure, I should note that I served as a special counsel for the committee during the preparation of the report.