Nicole S. Thompson, Due Process Problems Caused by Large Disparities in Grants of Asylum: Will New Department of Justice Recommendations Solve the Problem?

• Citation: Vol. 22 No. 1
• Publication year: 2008

DUE PROCESS PROBLEMS CAUSED BY LARGE DISPARITIES IN GRANTS OF ASYLUM: WILL NEW DEPARTMENT OF JUSTICE RECOMMENDATIONS SOLVE THE PROBLEM?

INTRODUCTION

On July 2, 1996, deportation proceedings were executed by the U.S. Immigration and Naturalization Service ("INS") against Yong Hao Chen and his wife Wei Kai Li, after the expiration of Chen's student visa.¹At the deportation hearing, the Chinese couple testified before an immigration judge about their fear of returning to China due to that nation's stringent family planning policies.²Their story began with the pressure they felt in China to abort their first child together because it would be Chen's second.³They were only able to have the child after they obtained a permit from the appropriate government office.⁴In order to attain the permit, they were required to sign documents pledging to their employers and "local family planning office" not to have more children and by agreeing that Li would elect sterilization.⁵

The couple said they feared what would happen to them if they returned to China because, while living in the United States, they had a second child together.⁶Chen presented evidence of the potential sanctions they would suffer with the submission of a human rights report in China from 1995, which outlined the consequences of violating China's "one child" policy.⁷

1 Chen v. I.N.S., 195 F.3d 198, 200 (4th Cir. 1999).

However, the INS argued that the couple had not met their burden because they had not successfully demonstrated there was an "objective . . . fear[] of persecution" if they were to return to China.⁸The INS presented the 1995

State Department report as evidence that forced sterilizations had declined in China from the 1980s until 1995.⁹The report also claimed that China's "one child" policy did not exclusively rely on forced sterilization and, even if the policy did apply to the couple, they would likely be exempt because they were abroad when the second child was born.¹⁰Despite the INS' evidence, the couple continued to claim that Chen had a well-founded fear he would be forcibly sterilized if they were to return to China.¹¹

The Fourth Circuit Court of Appeals determined whether Chen would be granted asylum depended upon whether he had a well-founded fear of persecution.¹²However, the court determined that the Board of Immigration Appeals ("BIA") had correctly concluded that Chen's fear was not "objectively reasonable" because he failed to prove the INS' evidence was incorrect.¹³The court reasoned that in order for Chen to prevail, he would have had to show he had a well-founded fear of forcible sterilization due to China's "one child" policy.¹⁴Although the court explained that an asylum seeker need not prove the persecution is imminent if they return to their home country,¹⁵it noted it had never laid out a specific standard of what constitutes enough evidence to prove a well-founded fear.¹⁶The court affirmed the BIA's decision to deport the Chens back to China.¹⁷

If this case had been in front of another immigration court judge or BIA member, the Chens' fate might have been different.¹⁸For example, a recent study found that 10% of immigration court judges deny 86% of asylum cases, while another 10% of immigration court judges deny only 34% of asylum cases.¹⁹Asylum case decisions often turn on whether the judge makes a positive or adverse credibility determination, frequently with only oral testimony to guide that decision.²⁰However, the most basic constitutional tenets of due process are an individual's right to be treated fairly and courteously under the law.²¹The current U.S. immigration system does not consistently meet that standard. When aliens fight deportation from the United States because they fear persecution in their home countries, the cost of losing this battle can be fatal.

It is not uncommon for an immigration court judge to deny an asylum seeker with a one-sentence decision, excluding any kind of written explanation detailing her rationale.²²This can lead to a situation where the alien is denied at the immigration court level and then denied at the BIA level with a one- sentence affirmance.²³There is then nothing in the record to shed light on the reason for the denial, while the alien is left to return to his or her home state, potentially to a gravely dangerous situation, or an appeal is taken to a federal circuit court of appeals judge who is left to wonder why or how the original determination was made.²⁴

One Seventh Circuit Court judge reflected that a guarantee of the American legal system was to allow all litigants to be treated with respect.²⁵He felt this goal should be obtained without considering the nationality of the litigants, especially because the United States is a country created by immigrants.²⁶This judge is not alone in his sentiments. At the foot of the Statute of Liberty, a powerful message is engraved:

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!²⁷

The United States must uphold its historical values toward immigration by ensuring they are followed in its immigration courts.²⁸

To secure each asylum seeker's right to due process under the law, there must be a more uniform approach to immigration court judges' credibility determinations. This Comment recommends that the Department of Justice ("DOJ") mandate that immigration courts and the BIA discontinue one-word opinions in adverse credibility determinations. Rather, the requirement should be to draft full opinions of the judge's reasoning and the rationale for a denial of asylum when the decision turns on the asylum seeker's credibility. This will allow the DOJ to have more oversight and understanding regarding the disparities in judicial denials of asylum. Each asylum seeker can only be granted due process if her determination would not depend on which judge hears her case. Because it is difficult to ascertain why these disparities are occurring, changing the standard of due process by requiring more than one- word denials and affirmances will be a step in the right direction.

Part I of this Comment will discuss the background of U.S. immigration law; primarily the domestic and international sources of law that have given the INS and the DOJ its power to regulate immigration. Part II will discuss the lengthy process of the asylum seeker in order to understand the legal hurdles each asylum seeker must face. This will include the requirements and limitations to be eligible for asylum under the federal Immigration and Nationality Act of 1952 ("INA"), as well as the factors required to be met by an asylum seeker's testimony. Part III will examine the inherent problems judges face when making credibility determinations. Part IV will discuss recent procedural changes to the U.S. immigration system that may have led to the judicial disparities in grants of asylum; highlighting the 2002 Streamlining Regulations, the Comprehensive Immigration Reform Act of 2006, and statistical and anecdotal discussions. Part V will discuss the DOJ's response to the disparity findings, noting its recommendations. Part VI will focus on the current standard of due process and why this standard is inappropriate to reach procedural fairness. It will also recommend proposed changes to U.S. asylum law policy and procedure.

I. BACKGROUND OF U.S. IMMIGRATION LAW

To understand the problem, begin with a brief description of the asylum seeker's process and the inherent difficulties to which it can lead. Immigration courts and judges are not under the provisions of Article III of the Constitution.²⁹Rather, immigration courts and the BIA are under the Justice Department's Executive Office for Immigration Review ("EOIR"), making them Article I courts.³⁰The EOIR is a branch of the DOJ.³¹

An asylum seeker's first appearance in court will usually be in front of an immigration court judge.³²If the asylum seeker appeals the immigration court judge's decision, the appeal is taken to the BIA.³³The BIA has authority over all appeals from the country's immigration court judges.³⁴A decision by the BIA is the final determination by the administrative arm.³⁵After that an asylum seeker can appeal to have the BIA's decision reviewed by a federal circuit court of appeals.³⁶

A. Sources of Power to Regulate Immigration

The U.S. government derives its power to regulate immigration through both domestic and international sources.³⁷Although the Constitution does not explicitly give the U.S. government this broad power,³⁸the United States has been regulating those who enter its borders since 1882.³⁹

1. Domestic Sources

The U.S. federal government derives its power to enact immigration laws through both enumerated and implied constitutional powers.⁴⁰There are several enumerated powers. First, the Commerce Clause allows Congress to determine whether aliens entering the United States can be taxed.⁴¹Second, the Naturalization Clause allows Congress to "establish a uniform Rule of Naturalization."⁴²Third, the Migration and Importation Clause states that the number of immigrants can be limited to "such Persons as any of the States now existing shall think proper to admit."⁴³Finally, the War Powers Clause allows the government to stop entering immigrants from crossing the U.S. border and to eject them.⁴⁴

The U.S. government also has implied constitutional powers.⁴⁵For example, the Supreme Court has found the U.S. government's right to admit or deny the entrance of immigrants is derived from its sovereignty.⁴⁶The

Supreme Court has also found the federal government's broadest power was in the regulation of foreign affairs.⁴⁷

U.S. domestic law is used to adjudicate asylum cases.⁴⁸The Refugee Act of 1980 was the first law passed by Congress that was directed at asylum seekers.⁴⁹The Refugee Act's requirements were incorporated in the INA.⁵⁰

This Act specifically...