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Appeals take time and require briefing (which is never brief) and a LOT of work. Most people don't appeal unless they think they really should have won.
Personally, I think the time period from an asylum grant to the appeal of that grant is a narrow and picky thing to slam the whole program for. For me, the general notion that illegal immigrants should be kept in custody until they are "legal" seems unquestionable.
Oh, because a judge can get reviewed by other judges on appeal, a judge's word is not final. In many instances the law preserves the "status quo" of the case pending appeal.
Example: You sue me for intentionally inflicting emotional distress on you by posting insensitive things on IWF. You win $2 million (assuming you can get blood from a stone). I appeal. Pending the appeal I keep the money and you get nothing. I may be required to post a 10% bond with the court, but by and large you don't get squat until a few years later when all appeals are exhausted and you've spent $100,000 more in attorney costs.
Anyway, back on topic, I also think I'd be fine with doing it either way -- let them out or keep them in pending appeal, I think the agency could have reasonably determined either. (Remember, agency rulemaking requires public notice and opportunity for public comment.)
If you looked at the statistics and found that 9/10 asylum grants were upheld on appeal, it would be reasonable to let asylum-seekers out pending appeal I guess. Another factor to consider is time elapsed pending appeal. If it's only a month, it might not be so bad to keep them in custody. If it's 4 months, there may be a better argument that they should be let out. I don't know the answers to this.
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