Rethinking review standards in asylum.

• Author: Kim, Andrew Tae-Hyun
• Position: Introduction through II. Reasons for Stricter Review: Deficiencies Within Immigration Adjudication A. Lack of Institutional Capacity: Under-Resourcing Problems at the Executive Office for Immigration Review (EOIR - 204

ABSTRACT

Factual findings drive asylum adjudication. If immigration judges get them wrong, they risk sending refugees back to persecution. Recent studies have exposed an immigration agency that is prone to inaccurate and ill-considered fact-finding due to its structural problems. Without the political will or the financial capital necessary to fix what many acknowledge as a compromised system of adjudication, the agency may continue to render decisions that cast doubt on its capability and expertise. With an agency either unable or unwilling to ensure an accurate and fair fact-finding process, the first meaningful review of an asylum applicant's claim happens at the federal courts of appeals, where judges continue to affirm the agency's decisions under a most deferential understanding of the substantial evidence standard of review. This Article exposes that anomaly and articulates an understanding of the substantial evidence standard that allows reviewing judges more latitude to consider the capabilities and credibility of the agency when they assess agency findings of fact. It argues that, in light of the agency's severe under-resourcing problems, judges should review the agency's factual findings less deferentially and exercise their discretion to remand decisions back to the agency if they lack confidence in the accuracy and fairness of the fact-finding process. The price to pay for not doing so is the risk of sending an individual to persecution.

TABLE OF CONTENTS INTRODUCTION I. SCOPE OF ASYLUM REVIEW UNDER THE SUBSTANTIAL EVIDENCE STANDARD: THE CURRENT DEBATE IN THE SECOND CIRCUIT A. Asylum Procedure B. Source of the Substantial Evidence Standard C. The Varied Application of the Substantial Evidence Standard in Asylum Cases D. Jin Shui Qiu v. Ashcroft: Stricter Review in Immigration? E. Cases Citing Qiu: A Review F. Siewe v. Gonzales: Challenging the Stricter Formulation G. Mei Chai Ye v. U.S. Department of Justice: A Response to Siewe H. The Importance of the Debate II. REASONS FOR STRICTER REVIEW: DEFICIENCIES WITHIN IMMIGRATION ADJUDICATION A. Lack of Institutional Capacity: Under-Resourcing Problems at the Executive Office for Immigration Review (EOIR) B. Lack of Quality Representation for Noncitizens C. Bias and Threat to Agency's Decisional Independence D. Procedural Shortcuts at the BIA III. INAPPLICABLE ASSUMPTIONS UNDER THE SUBSTANTIAL EVIDENCE STANDARD A. Comparative Advantage 1. Live Testimony Advantage 2. Procedures Employed at Article III Courts Versus at Agencies B. Agency Expertise C. Political Accountability D. Finality: Akin to Jury Verdicts? IV. THE WAY FORWARD: ANALYSIS AND RECOMMENDATIONS A. The Legal Basis for "Stricter" Review B. Akin to Hard Look Review C. A Continuum of Deference CONCLUSION "[E]ach time we wrongly deny a meritorious asylum application, concluding that an immigrant's story is fabricated when, in fact, it is real, we risk condemning an individual to persecution.... [W]e must always remember the toll that is paid if and when we err." Judge Calabresi (1)

INTRODUCTION

Judicial review over agency action has received both extensive judicial analysis and scholarly attention. (2) The scope of that review over agency factual determinations remains, however, comparatively neglected. In asylum (3) adjudication, an agency's factual determinations can wholly drive the outcome of the case. Asylum decisions are not only fact intensive, but the question of whether a noncitizen meets the statutory definition of a refugee--in reality, a mixed question of law and fact--is treated in the asylum context only as a question of fact. (4) This distinction is critical because the scope of appellate review over factual determinations occurs under the more deferential substantial evidence standard, (5) whereas courts can review mixed questions of law and fact less deferentially. (6) The scope of review over immigration agency factual determinations has become even more deferential with the passage of the REAL ID Act, (7) which further curbed the already limited scope of judicial review of an immigration judge's credibility determination. Credibility determinations, in connection with the related factual findings, play a decisive role in many asylum cases. (8)

This trend towards more circumscribed appellate review has occurred despite recent studies that have cast doubt on the agency's competence and expertise, including the shortage of resources and time for immigration judges to adequately consider each case, (9) significant grant rate disparities among immigration courts, (10) political biases of some immigration judges and Board of Immigration members," and the lack of meaningful review of immigration judges at the agency level. (12) This has prompted scathing critiques from many federal circuit court judges, including one declaration from Judge Richard Posner that the immigration adj udication at the agency level has fallen below the minimum standard of justice. (13)

In this Article, I argue for an interpretation of the substantial evidence standard of review that gives reviewing appellate judges the latitude to more strictly scrutinize an agency's factual determinations and to remand for further factual development if the procedures employed at the agency level do not give that judge confidence in the accuracy of the fact-finding process. In Part I, I analyze an important debate in the U.S. Court of Appeals for the Second Circuit over the meaning of the substantial evidence standard in asylum cases. I show that the Second Circuit sometimes applies a stricter standard in asylum cases that gives less deference to an agency fact-finder than to a district court judge under the clear error standard of review, which is seemingly contrary to a general understanding of substantial evidence review. In Part II, I articulate why this stricter standard makes sense as a matter of policy given the immigration agency's structural incapacities, including its serious under-resourcing problem, threats to decisional independence, and barriers to agency-level review of immigration judge decisions. In Part III, I claim that the traditional reasons for deferring to agency fact-finding--comparative advantage, agency expertise, political accountability, and finality--do not apply with as much force in this context. (14) In Part IV, I provide the legal basis for stricter review of immigration agency fact-finding under the substantial evidence standard.

1. SCOPE OF ASYLUM REVIEW UNDER THE SUBSTANTIAL EVIDENCE STANDARD: THE CURRENT DEBATE IN THE SECOND CIRCUIT

   1. Asylum Procedure

      One method for claiming asylum is to file an application with the immigration court after the Department of Homeland Security (DHS) has initiated removal proceedings. (15) If the DHS has not instituted removal proceedings, however, the noncitizen can file an affirmative application with the U.S. Citizenship and Immigration Service (USCIS), (16) where asylum officers with specialized training to adjudicate claims conduct interviews and either grant the application or refer the matter to an immigration judge for removal proceedings. (17) In the latter case, the applicant can renew the application de novo before the immigration judge. (18) Asylum officers refer approximately 65 percent of affirmative applications to the immigration courts; (19) thus, immigration courts adjudicate most claims for asylum. Both the noncitizen and the government can appeal the immigration judge's decision to the Board of Immigration Appeals (BIA), the agency's appellate body. (20) After exhausting all administrative remedies, (21) an asylum applicant can file a petition for review of the agency's removal order to the United States Court of Appeals. (22)

   2. Source of the Substantial Evidence Standard

      When presented with an asylum appeal, the court of appeals examines agency fact-finding under the substantial evidence standard of review. That review standard appears in a number of enabling acts and as one of the standards enumerated in the Administrative Procedure Act (APA). (23) Both section 706 of the APA and the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe (24) specify that the standard applies only to formal agency action. (25) The standard even predates the APA, going as far back as the Supreme Court's articulation of the substantial evidence standard in the pre-World War II case Consolidated Edison Co. v. NLRB. (26)

      There, the Court defined substantial evidence as "more than a mere scintilla.... [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (27) A few decades later, the Court decided Universal Camera Corp. v. NLRB, where it clarified the meaning of the substantial evidence standard in the APA and the Taft-Hartley Act. (28) Going against the findings of the NLRB, the Second Circuit directed the Board to reinstate with back pay an employee found to have been discharged for giving testimony under the Wagner Act and ordered the Board not to discriminate against an employee who files charges or gives testimony under the Act. (29) In striking down the Second Circuit's decision, the Court harmonized the meaning of the standard in the APA and the Taft-Hartley Act with the earlier usage of the term in Consolidated Edison. (30) The Court in Universal Camera Corp. instructed reviewing courts to consider the record as a whole before concluding that some evidence, or more than a "scintilla," supported the agency's decision. (31) Despite this requirement to review and consider the whole record, the substantial evidence standard remains deferential and has been characterized as being even more deferential than the standard circuit courts use in reviewing district courts' findings of fact. (32)

   3. The Varied Application of the Substantial Evidence Standard in Asylum Cases

      Though removal proceedings constitute formal agency action, the procedures specified in the APA do not apply to them...