Learning to live with unequal justice: asylum and the limits to consistency.

• Author: Legomsky, Stephen H.

INTRODUCTION I. THE BACKGROUND A. A Summary of the Asylum Process B. The Asylum Study--Disparities in Asylum Adjudication II. WHY CONSISTENCY MATTERS III. THE DETERMINANTS OF CONSISTENCY A. Numbers 1. The number of decisional units 2. The size of the decisional units 3. The number of cases B. Attributes of Adjudicators 1. Appointment patterns 2. Training and policy guidance C. The Roles of the Adjudicators 1. Decisional independence 2. Deference and scope of review 3. Reasoned opinions and stare decisis D. Resources 1. Fiscal resources 2. Procedural resources E. The Nature of the Subject Matter 1. Degree of specialization 2. Complexity 3. Dynamism 4. Emotional or ideological content 5. Spectrum of choice IV. THE POLICY OPTIONS A. Worthwhile but Marginal Improvements 1. More detailed statutes, regulations, and informal instruments 2. More adjudicators 3. Larger decisional units 4. Strengthening the support staff 5. Providing counsel 6. Quality control in hiring 7. Professional development 8. Dissemination of asylum approval rates 9. Expanding the BIA 's scope of review 10. Reasoned and binding opinions B. Possible Enhancements to Consistency but Bad Ideas Nonetheless 1. Demographic hiring criteria 2. More frequent agency head review of BIA decisions 3. More restrictions on judicial review 4. Transferring judicial review to a specialized immigration court C. Potentially Dramatic Gains in Consistency, but Especially Bad Ideas 1. Quotas or other direct controls on outcomes 2. Punishing wayward adjudicators CONCLUSION INTRODUCTION

This Article is about consistency in adjudication. With the United States asylum system as a backdrop, I explore why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying.

This Article is also about the United States asylum adjudication system. Asylum challenges the national conscience in distinctive ways. It generates hard questions about our moral responsibilities to fellow humans in distress; the recognition of human rights and our willingness to give them practical effect; the extent of our obligations to those who are not U.S. citizens; U.S. legal and moral obligations to the international community; the roles of state sovereignty and borders; foreign relations; allocation of finite national resources; and racial, religious, linguistic, and ideological pluralism.

Into this emotional and political fray, one often better known for polemic than for hard data, recently ventured Professors Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag. Through painstaking and thoughtful empirical research, they collected massive data from several different federal bureaucracies and shed important light on the results asylum adjudicators reach. Their impressive study, Refugee Roulette: Disparities in Asylum Adjudication (Asylum Study), (1) serves two crucial functions. Most relevant to the present Article is the first function, which is to highlight the striking disparities in asylum approval rates from one adjudicator to another at various stages of the process. (2) As the authors convincingly demonstrate, asylum outcomes often depend as much on the luck of the draw as on the merits of the case. (3) The Asylum Study also identifies some of the external variables that correlate with positive or negative outcomes in asylum cases. Those variables will be considered here as well, but only insofar as they either help flesh out the forces that drive consistency levels or suggest normative policy responses to the disparities in asylum outcomes.

The present Article similarly has two aims. The first, which is asylum-specific, addresses the "so what" question. What are the normative implications of the findings reached in the Asylum Study? What problems have the sharp disparities in asylum approval rates caused, and what, if anything, should we do about them? To answer those questions, the Article sets a second objective--to examine, more generically, the role that consistency should play in any justice system. What, exactly, is the relationship between consistency and justice? What forces influence consistency? What instruments might enhance it? And what trade-offs do those instruments present?

Many readers will find the patterns revealed by the Asylum Study shocking. One's visceral reaction might be that we need to "rein in" the adjudicators. Perhaps, one might think, the answers lie in terminating or demoting the outliers, or subjecting all adjudicators to performance evaluations, or making vastly increased use of agency head review of adjudicators' decisions, or even imposing mandatory minimum and maximum approval rates.

I argue here that these impulses should be resisted. There are times when we simply have to learn to live with unequal justice because the alternatives are worse. Disparities in asylum approval rates just might be one of those instances. As long as adjudicators are flesh-and-blood human beings, as long as the subject matter is ideologically and emotionally volatile, and as long as limits to the human imagination constrain the capacity of legislatures to prescribe specific results for every conceivable fact situation, there will be large disparities in adjudicative outcomes and justice will depend, in substantial part, on the luck of the draw.

This is not to suggest that inconsistent outcomes are harmless; they impede justice in several ways that will be explored below. Nor is this a call for complacency; there are several ways to mitigate the problem at the margins, and they too will be considered in this Article. But more dramatic inroads into adjudicative inconsistency bear costs that, in my view, are socially unacceptable. The major cost is the erosion of decisional independence, but there are others as well.

Part I of this Article provides basic background information on the asylum adjudication process and then summarizes the relevant empirical findings of the Asylum Study. Part II examines why consistency matters. It considers the costs of unequal justice. Part III identifies the determinants of consistency. These are the forces that influence the degree of inconsistency one might expect from a given adjudicative process. Part IV then surveys the policy options--both those that would enhance consistency at the margins and those that might well bring more dramatic uniformity gains but that would be bad ideas nonetheless.

1. THE BACKGROUND

   1. A Summary of the Asylum Process

      With some exceptions, any person who is "physically present" in the United States--whether at a port of entry or in the interior--may apply for asylum. (4) To succeed, the person must meet the statutory definition of "refugee," must not fall within any of the statutory disqualifications, and must receive the favorable exercise of discretion. (5) The "refugee" definition, in turn, requires "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (6) Upon receiving asylum, the person may remain in the United States, may work, may bring in certain qualifying family members, and may eventually acquire permanent residence. (7)

      There is an elaborate administrative machinery for the filing and adjudication of asylum claims. The Asylum Study provides a succinct summary; (8) here it is enough to highlight a few points essential to understanding the remainder of this Article.

      The Department of Homeland Security (DHS) may initiate "removal proceedings" to determine whether a noncitizen has the right to remain in the United States, rather than be turned back at a port of entry or expelled from the interior. (9) In a removal proceeding an officer known as an "immigration judge" presides over an evidentiary hearing. (10) There are more than two hundred "immigration judges" sitting in fifty-four "immigration courts" dispersed throughout the United States. (11) The immigration judges are part of an agency called the Executive Office for Immigration Review (EOIR) in the Department of Justice. (12)

      A person against whom removal proceedings have been instituted may file an asylum application with the immigration judge as a defense. (13) Either the applicant or the government may appeal the immigration judge's removal decision (which will include the asylum determination) to the Board of Immigration Appeals (BIA). (14) The BIA, a nonstatutory body created by the Attorney General, (15) is now also part of EOIR. (16) It currently has fifteen members. (17) The Attorney General may review BIA decisions (18) but in practice does so only sparingly. (19) Generally in asylum cases, a noncitizen can obtain judicial review of either the BIA or the Attorney General decision by filing a petition for review in the U.S. court of appeals for the circuit in which the removal hearing was held. (20)

      There are two major exceptions to the availability of judicial review in asylum cases. Certain individuals who apply for asylum at U.S. ports of entry (and a few others) are subject to a special abbreviated procedure that bars judicial review. (21) Moreover, to file an asylum claim, one must prove by "clear and convincing evidence" that the application was filed within one year of arrival, that there were "changed circumstances which materially affect the applicant's eligibility for asylum," or that the delay can be explained by other "extraordinary circumstances." (22) Asylum denials based on failure to make one of those showings are not subject to judicial review. (23)

      A person who is not in removal proceedings may take the initiative and file an affirmative asylum application with the appropriate regional asylum office of United States Citizenship and Immigration Services (USCIS), a bureau of DHS. (24) The asylum officers are specially trained in international human rights law, asylum law, and country conditions. (25) They currently number 141 (26) and are based in...