Copy-paste precedent.

• Author: Soucek, Brian

1. INTRODUCTION

   Precedential opinions are written to be cited, quoted, and followed. This essay identifies another kind of "precedent": unpublished opinions that are followed without being either cited or quoted. These decisions shape the course of the law not because they are binding--they explicitly are not--but simply because portions of their text get repeatedly copied and pasted into other unpublished opinions. "Copy-paste precedent" ends up having the influence of precedent without real precedent's authority---or scrutiny.

   If a decision's influence is measured by the number of times it appears in case law, copy-paste precedent can sometimes have even more influence than a circuit's precedential opinions on the same subject. To show this, I focus here on an example from a burgeoning area of unpublished case law--immigration--in the Second Circuit, a court that last year decided a full ninety-seven percent of its immigration cases through unpublished summary orders. (1) My example concerns an issue that has lately attracted Congressional attention and led to a deepening circuit split: the visibility required of social groups under asylum law. (2) The example is notable not least because it is wrong.

   On one level, this is to say that the copy-paste precedent discussed below is substantively mistaken. The text that keeps getting copied and pasted into ever more unpublished summary orders diverges in a significant way from the Second Circuit's official doctrine. This point is not unimportant, given the fact that another asylum application is affected each time the mistaken text gets copied and pasted.

   Worse, correcting a mistake like this in copy-paste precedent is at once less and more difficult than correcting one that is published. Unpublished opinions are less difficult to correct because they are not binding; yet they are also less likely to be corrected, because no one thinks to do so. The errors of unpublished opinions, even when they are discovered, are not thought to self-replicate as precedential ones do. Why then correct something which, it is assumed, will not guide future opinions?

   In a world of copy-paste precedent, this last assumption fails to hold. Unpublished opinions do guide the opinions that follow, but troublingly, not as deliberately, and not nearly as openly, as precedential opinions do. This is the more significant, procedural sense in which the copy-paste precedent discussed in this essay is mistaken: It makes law the wrong way.

   The point of this essay is thus to correct a mistake in the Second Circuit's case law, but it is not merely that. The broader aim is to call attention to an unacknowledged and mistaken way in which law gets made--not just in the Second Circuit, but, potentially, throughout the eighty-five percent of cases that the federal courts of appeals now decide through unpublished opinions. (3)

2. UNPUBLISHED OPINIONS

   Unpublished opinions, as judges and lawyers well know, are nothing of the kind. Not only are they published in the Federal Appendix, but they are fully searchable on commercial databases and available--as required by law (4)--on appellate courts' websites. Since the controversial Rule 32.1 of the Federal Rules of Appellate Procedure went into effect in December 2006, courts may no longer prevent litigants from citing unpublished opinions issued in 2007 and later. Thus, the only real difference between published and unpublished opinions is that unpublished opinions do not have precedential effect. A federal appellate court's unpublished opinions do not bind either that circuit's trial courts or its future appellate panels.

   Unpublished opinions are a relatively recent feature of the federal courts. It wasn't until 1973 that the Advisory Council on Appellate Justice recommended that the circuits establish publication plans to limit the number of published opinions and to restrict parties' ability to cite to those not published. (6) Each circuit had done so by 1974. (7)

   The current rule in the Second Circuit dictates that "[w]hen a decision in a case is unanimous and each panel judge believes that no jurisprudential purpose is served by an opinion (i.e., a ruling having precedential effect), the panel may rule by summary order." (8) In the year ending September 30, 2011, the Second Circuit resolved 88.7 percent of its cases through such unpublished summary orders. (9) The percentage is even higher for immigration cases, most of which are routed to the court's Non-Argument Calendar. There, in lieu of oral argument, judges receive summary orders drafted by staff attorneys and decide whether to sign the proposed orders or to send the cases to the regular calendar for argument. (10) Whether argued or not, ninety-seven percent of the court's immigration cases were decided by summary order in 2012. (11)

   The wisdom and even the constitutionality of this arrangement have been heavily contested. (12) Supporters of unpublished opinions cite the growing caseload of the courts of appeals, the inability of judges to give precedent-worthy consideration to so many cases, the need to keep the law coherent and control the proliferation of case law, and the fact that many cases require judges simply to apply the law rather than make new law. Opponents claim that the rule of law and the "judicial power" granted under the Constitution both require that opinions have binding effect; they doubt whether judges can accurately determine which of their opinions are important enough to publish; they worry that non-publication is an attempt to shield opinions from review; and they fear for those litigants whose cases are, by judges' own admission, given less care and attention than those whose cases are decided through published opinions.

   My goal here is not to repeat or add to the extensive debate about the value of unpublished, non-precedential decisions. Instead, it is to show how decisions that are formally non-precedential can, in practice, end up playing the role of precedent. To do so, I turn to the Federal Appendix--the repository of the federal appellate courts' unpublished case law--in order to look at a series of recent Second Circuit decisions on the subject of asylum, social groups, and visibility.

3. SOCIAL GROUPS AND VISIBILITY 1N ASYLUM LAW

   To obtain asylum in the United States, an applicant generally must show a well-founded fear of being persecuted for one of five reasons: race, religion, nationality, political opinion, or "membership in a particular social group." (13) The last of these is the least well understood; in the words of the Department of Justice--the agency charged with interpreting the phrase--it is "universally recognized to be ambiguous." (14)

   In a 1985 opinion, the Board of Immigration Appeals (BIA) construed "particular social group" to require some "common, immutable characteristic ... that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." (15) The Second Circuit added to this definition in 1991, requiring that group members share a "characteristic in common which serves to distinguish them in the eyes of a persecutor--or in the eyes of the outside world in general." (16)

   Quoting the Second Circuit's decision, the BIA specified in 2006 that social-group claims require a showing of something it called "social visibility" (17)--that is, "the extent to which members of a society perceive those with the characteristic in question as members of a social group." (18) The Second Circuit deferred to the BIA's interpretation of "particular social group" twice in 2007, in two precedential decisions that show no awareness of one another. (19)

   Running through these opinions is a crucial ambiguity between two interpretations of "social visibility." On the one hand, the opinions look to whether a given group is "perceived as a group by society." (20) This cognitive approach considers how a society thinks of itself as being carved up into various groups and guards against the invention of ad hoc groups proposed solely for the purpose of asylum applications. (21) The second approach takes visibility literally, requiring that the characteristic uniting the group be "highly visible and recognizable by others in the country in question." (22) The difference between the two approaches comes down to society's "seeing" (in a metaphorical sense) those who share a characteristic as being part of some group, versus seeing (in the literal sense, with one's eyes) some characteristic shared by members of the group.

   When the Second Circuit published its two opinions deferring to the BIA's interpretation of "particular social group," it clearly had the cognized-group approach in mind. Koudriachova, the first of these opinions, defined visibility as "the extent to which members of society perceive those with the" (23) relevant characteristic as members of a social group. Likewise, Ucelo-Gomez, the second opinion, stressed that "'persecutory action toward a group may be a relevant factor in determining [its] visibility." (24) Presumably the court did not mean that persecutory action produces literally visible characteristics (though, sadly, that sometimes happens); the court surely meant that persecution of a group provides good evidence that people think of it as a group. Since these two opinions, the Second Circuit has mentioned social groups and visibility in only four more published opinions, (25) just two of which give the concept more than passing notice. The language that Koudriachova took almost verbatim from the BIA has only been quoted once in any Second Circuit opinion. Not one of the Second Circuit's thirty unpublished summary orders that discuss social visibility quotes the definition given in the court's first precedential statement on the subject.

4. THE SECOND CIRCUIT'S UNPUBLISHED SOCIAL-GROUP "PRECEDENT"

   Instead of quoting Koudriachova's...