THE MEDIA: Television

WHO SAID IT: Martha McSally

OFFICE HELD: U.S. senator

THE COMMENT: “So people could go through the process, and have their asylum case heard, many of which, more than 90%, are not legitimate asylum cases.”

THE FORUM: A KGUN 9 interview published on May 30, 2019

WHAT WE'RE LOOKING AT: Are more than 90% of asylum cases in the United States not legitimate?

OUR RATING: No stars, misleading

ANALYSIS: While discussing the issue of “loopholes” in asylum procedures during a televised interview in Tucson in late May, U.S. Sen. Martha McSally, R-Arizona, claimed the vast majority of asylum cases in the United States are not legitimate.

This comment comes as record-setting numbers of migrants are entering the United States each month. In May alone, nearly 133,000 individuals were apprehended at the U.S.-Mexico border.

Migrants arriving in the United States have the legal right to claim asylum after establishing a well-founded fear of persecution in their home country, according to the 1965 Immigration and Nationality Act.

Depending on their circumstances, migrants can claim asylum affirmatively or defensively. Most of the cases granted are affirmative.

To claim asylum affirmatively, an individual may submit an application to the U.S. Citizenship and Immigration Services (USCIS), where an asylum officer will approve or deny the claim. If the asylum seekers are deemed eligible, they will receive documentation in the mail granting them legal asylum status in the United States.

If the asylum officer denies the claim, the applicant is referred to an immigration court. Here, asylum seekers can renew their requests, this time, by asking a judge to grant them asylum defensively.

Those who claim asylum defensively do so “as a defense against removal from the U.S.” and are scheduled for a removal proceeding.

McSally’s office provided AZ Fact Check with the source of her claim that 90% of asylum cases are illegitimate — a Federal Register from Nov. 9, 2018.

Due to a significant uptick in migration from Central American countries, the register cites specific statistics about asylum seekers from the “Northern Triangle” region of Guatemala, Honduras and El Salvador.

While USCIS officers grant affirmative asylum, they also determine if individuals already in removal proceedings have "a credible fear of persecution" and can therefore proceed with a defensive asylum case. According to the register — 20,784 individuals from Northern Triangle countries received a credible fear referral from an asylum officer in fiscal year 2018.

Of these defensive asylum cases, 1,889 were legally granted asylum in an immigration court. This means 9% of individuals from Northern Triangle countries, who first received a credible fear referral from an immigration officer, were granted asylum through an immigration court.

McSally used these numbers to justify her claim, reasoning the other nearly 90% of this population did not have a legitimate claim to asylum.

“Therefore yes, data shows that 91% of asylum cases are rejected indicating that most are deemed illegitimate by immigration judges,” McSally’s office said in an email.

However, McSally used these statistics to classify all asylum seekers — not just those from three Central American countries. The numbers she cited also only account for those who received a credible fear referral, not migrants who claimed asylum affirmatively without one.

Robyn Barnard, an attorney for the refugee representation team at Human Rights First, said that when migrants arrive at a U.S. airport or port of entry and ask for asylum, this triggers an expedited removal process where credible fear has to be established.

“DHS officers take the person in, process them — and if the person says, ‘I want to seek asylum; I'm afraid to go back to my country’ — that triggers the credible fear interview,” Barnard said. “I would say at least half of our defensive cases have gone through the expedited removal credible fear process.”

The numbers on exact asylum grant rates can be tricky. Defensive asylum cases are tracked in immigration courts, and affirmative cases go through USCIS.

Thousands of individuals are granted affirmative asylum every year, but the numbers McSally cited only pertain to defensive cases.

In fiscal year 2018, 21% of all defensive asylum applications were granted, and 41% were denied, according to the U.S. Department of Justice.

Although the rate of asylum denials in immigration courts has increased in recent years, there are other outcomes of cases besides a granting or denial.

The Department of Justice lists two other categories the outcome of an asylum case can fall into.

According to its data, 35% of asylum applicants fall into a miscellaneous category, with outcomes ranging from complete abandonment of the case to the case simply not being decided.

The last category, “administrative closure,” accounts for cases that have not yet been placed on the docket after a judge grants the “motion to recalendar,” which comprised 3% of asylum proceedings in fiscal year 2018.

Barnard argues the high denial rates show the complexity of asylum cases and the underlying challenges of winning them.

“I think there's a common misunderstanding in the public that it's something that's easily won once people are here in the U.S. It's a really complicated process on multiple fronts,” Barnard said. “It's really hard to win an asylum case."

The data McSally used to support her claim comes from the binary outcome of immigration court proceedings in which asylum is or is not granted. A judge’s decision to deny asylum does not always mean the individual seeking asylum must leave the United States.

Other outcomes in an immigration court could include withholding of removal, in which an immigration judge deems a person demonstrates likelihood of being persecuted in their home country.

Those who are denied asylum also may be granted Convention Against Torture relief, which grants protection from deportation if there is a high probability of being subjected to torture in one’s home country.

Not only do asylum grant-and-denial statistics fail to reflect outcomes that do not directly involve court hearings, but they don’t account for the many unaccompanied minors whose asylum decisions are not necessarily made in court.

In May 2019, more than 11,000 unaccompanied minors were apprehended at the U.S.-Mexico border. Many minors apply for asylum directly to the USCIS, where an asylum officer considers and grants the claim to asylum.

Syracuse University’s Transactional Records Access Clearinghouse (TRAC) has tracked immigration trends for 30 years. Susan Long, a professor at Syracuse University and co-director of TRAC, said available data on asylum grant-and-denial rates do not accurately reflect how many individuals are granted asylum.

“Unaccompanied children go to immigration court directly. But then after they go, where they file their asylum petition isn’t in the court; it’s with USCIS,” Long said. “In these data sets, because we’re looking at immigration court records, we’re looking at whether or not the judge granted asylum. For (unaccompanied minors), it wasn’t the judge; it was somebody else.”

The judge an asylum seeker draws can have a significant effect, too, as frequency in which immigration judges grant asylum varies. TRAC lists asylum decisions from judges throughout the U.S. from fiscal years 2013-2018.

Of the two immigration judges listed in Phoenix, TRAC lists Judge LaMonte Freerks as granting asylum in 36% of cases, while Judge John Richardson, who retired last fall, granted asylum in 85% of his cases.

Therefore, whether an individual will receive asylum may very well depend on the immigration judge who oversees their case.

BOTTOM LINE: McSally’s claim that 90% of asylum cases are illegitimate is misleading. The statistics she cites to support her claim only include three Central American countries and those who have received a credible referral claim from an immigration officer. This leaves out a large portion of those seeking asylum in the United States and ignores the complicated processes immigration courts must adhere to.

SOURCES: Martha McSally interview on KGUN 9 Tucson (comments at 33 minutes, 30 seconds): https://www.youtube.com/watch?v=nD88ulNGtgs; U.S. Customs and Border Protection: Southwest Border Migration FY2019: https://www.cbp.gov/newsroom/stats/sw-border-migration; Asylum Definition from United States Citizenscip and Immigration Services: https://www.uscis.gov/humanitarian/refugees-asylum/asylum; The 1965 Immigration and Nationality Act: https://www.govinfo.gov/content/pkg/STATUTE-79/pdf/STATUTE-79-Pg911.pdf; American Immigration Council Asylum Fact Sheet: https://www.americanimmigrationcouncil.org/research/asylum-united-states; Federal Register from Nov. 9, 2018: https://www.govinfo.gov/content/pkg/FR-2018-11-09/pdf/2018-24594.pdf; Email from Katie Waldman at McSally’s office sent on June 20, 2019; USCIS Questions & Answers: Credible Fear Screening: https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-credible-fear-screening; Executive Office for Immigration Review Adjudication Statistics: https://www.justice.gov/eoir/page/file/1163686/download; An overview of Withholding of Removal from Michigan Legal Help: https://michiganlegalhelp.org/self-help-tools/immigration/overview-of-withholding-of-removal; The Convention Against Torture Act (CAT): https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/bia-on-cat-torture-matter-of-j-r-g-p--27-i-n-dec-482-bia-2018; Minor Children Applying for Asylum By Themselves USCIS Policy: https://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves; Judge-by-Judge Asylum Decisions in Immigration Courts FY 2013-2018: https://trac.syr.edu/immigration/reports/judge2018/denialrates.html; Immigration: U.S. Asylum Policy from the Congressional Research Service: https://fas.org/sgp/crs/homesec/R45539.pdf

AZ Fact Check ratings

One star: Mostly false

Two stars: Somewhat true/somewhat false

Three stars: Mostly true

Four stars: True

No stars:Inconclusive, unsupported or misleading

Inconclusive: This finding is made when a claimer makes a statement and provides facts to support it but an opponent offers equally compelling facts that dispute it or AZ Fact Check finds equally compelling facts that dispute it. As a result, AZ Fact Check cannot determine the truth or falsity of the statement.

Unsupported: This finding is made when a claimer makes a statement but does not provide supporting facts that can be verified independently by AZ Fact Check, and AZ Fact Check cannot find other facts that either support or refute the statement. The burden of proof is on the claimer to provide adequate supporting facts.

Misleading: Claims that were technically true, but they didn’t provide the full story or left out important context.