Refugee Roulette in an administrative law context: the deja vu of decisional disparities in agency adjudication.

• Author: Taylor, Margaret H.
• Position: Response to article by Jaya Ramji-Nogales and others in this issue, p. 295

INTRODUCTION I. OPENING A WINDOW TO POLITICAL SCIENCE II. THROUGH THE LENS OF ADMINISTRATIVE LAW A. A Primer on the Structure of Agency Adjudication B. Comparing Asylum and Disability Adjudication C. The Unhappy History of Attempted Reform in the Disability Adjudication Context III. POLICY CHOICES IN CONTEXT INTRODUCTION

In Refugee Roulette: Disparities in Asylum Adjudication (the Asylum Study), Professors Ramji-Nogales, Schoenholtz, and Schrag provide a comprehensive analysis of new data to document decisional disparities that undermine the fairness of asylum adjudication. The Asylum Study is an empirical project of remarkable scope. It examines patterns of asylum decisions at four different adjudication levels: at the asylum office interview, in immigration court, on administrative appeal to the Board of Immigration Appeals (BIA), and on petition for review to the federal courts of appeals. At each level, the Asylum Study generates empirical findings to support what we knew mostly by anecdote--that there are eye-popping disparities in the grant rates of asylum adjudicators that cannot be explained by the underlying merits of the cases. (1)

What are we to make of these findings? One could derive an answer from a variety of perspectives; my response to the Asylum Study will employ two. First, I will situate the study within a territory that is noted but not explored by its authors: the work of political scientists who conduct empirical studies of judicial decision making. Second, I will examine the Asylum Study through the lens of administrative law, where we find a deja vu component to its findings. This essay has a dual purpose: to open a multidisciplinary window onto the Asylum Study, and to delve into the broader administrative law context of the intractable problem of decisional disparities in agency adjudication.

1. OPENING A WINDOW TO POLITICAL SCIENCE

   Political scientists have published scores of empirical studies to explore the impact of extraneous factors, including judge ideology and gender, on judicial decision making. (2) Most of these studies focus on Article III courts (most often the Supreme Court), and consider decisional patterns at a single level of adjudication. These empiricists have honed the methodology used to study judicial decision making, and have developed a theoretical framework to explain judicial behavior. Their work provides a useful perspective to examine the findings of the Asylum Study.

   As an empirical study of judicial behavior, the Asylum Study breaks no new ground methodologically, and it might be criticized by empiricists who generally apply more refined multivariate statistical models to much smaller datasets. The Asylum Study's conclusion that "the gender of the [immigration] judge had a significant impact on the likelihood that asylum would be granted," (3) for example, would be viewed by a dedicated empiricist as problematic because the authors do not isolate the effect of judge gender. (4) The Asylum Study recognizes this limitation--noting, for example, that "some of the 'gender effect' on asylum decision making may be related to the different prior work experience of male and female judges" (5)--but does not employ the statistical tools to measure this effect. For this reason, while the Asylum Study convincingly documents decisional disparities in asylum adjudication, its analysis of whether judge ideology and gender are explanatory factors should be considered preliminary.

   This criticism should not, however, obscure the significant contributions of the Asylum Study. The authors venture into new territory when they analyze the judicial behavior of adjudicators within an administrative agency, and when they undertake this analysis at four levels of adjudication. (6) We might wish for more complete data, and wonder whether the explanations typically offered to explain the voting behavior of Article III judges hold true in the decidedly different political context of agency adjudication. Nevertheless, we now have a well-developed picture of the scope and patterns of decisional disparities in asylum adjudication. The Asylum Study prompts us, moreover, to consider whether differently designed adjudication systems might increase or reduce decisional disparities. (7)

   The Asylum Study also demonstrates how important it is for empiricists to understand the legal and procedural context of their dataset. The substantive expertise of Professors Ramji-Nogales, Schoenholtz, and Schrag, which has been honed through years of experience representing asylum seekers (and supervising students who do the same), is critical to the successful design and implementation of this study. (8) It brought us, for example, useful ways to control for the variable of nationality differences in caseload while comparing asylum grant rates across individual adjudicators and regions. (9) I doubt that anyone who lacked the authors' intimate knowledge of the asylum process could deliver such a detailed and convincing analysis. (10)

   Although it is an impressive study, the Asylum Study does illustrate a boundary that persists between law professors and political scientists. Scholars from both disciplines have become accustomed to sharing the territory of empirical analysis, as demonstrated by a recent spate of law review articles distilling the best practices for designing studies and communicating results. (11) Nevertheless, most of us--legal scholars and political scientists alike--still do not routinely read each others' work (which is, for the most part, published in entirely different arenas), and thus miss certain insights that might be brought to bear when our fields of study overlap. (12)

   Missing from the Asylum Study, although quite on point to the authors' analysis, are the theoretical models political scientists have developed to explain judicial behavior. (13) The Asylum Study posits that at each level of asylum adjudication, "the outcome of a case appears to be strongly influenced by the identity or attitude of the officer or judge to whom it is assigned." (14) This conclusion mirrors the attitudinal model of judging, originally developed to explain Supreme Court voting patterns but more recently expanded to other realms. The attitudinal model states that judges decide cases (and especially the close cases) based on their ideologies or attitudes toward a particular claim--or, stated more simply, that judges vote their values. (15) This claim is fully theorized and tested by empirical analysis; it also is challenged to a degree by an alternate theory known as the strategic model of judging. The strategic model accepts that judges are inclined to vote consistent with their ideological preferences, but stresses that they are also subject to compromises imposed by collegial decision making and a number of political constraints. (16) This theory also seems reflected in the Asylum Study--most notably in the section that correlates certain interventions from the Attorney General with a steep drop in BIA decisions favorable to asylum applicants. (17) More generally, the strategic model, with its emphasis on the political context of judging, seems an especially apt theory to employ in a study of agency adjudicators who decide cases subject to political and policy controls.

   A full elaboration and application of these theories is beyond the scope of this response (and, to be fair, can also be seen as beyond the scope of the Asylum Study). Nevertheless, I hope that by noting the relevance of these models I might prompt legal scholars and social scientists to be more attentive to the overlap of our fields, and perhaps entice those who routinely study judicial behavior to help us assess the broader implications of the Asylum Study.

2. THROUGH THE LENS OF ADMINISTRATIVE LAW

   As someone whose teaching and research covers immigration law and administrative law, I believe that the Asylum Study should be required reading for scholars, practitioners, and policymakers in both fields. Those who study agency adjudication often limit their focus to a single administrative context; they are overlooking some of the most important and challenging administrative law questions if they do not expand their field of vision to consider immigration adjudication. On the flip side, immigration law specialists may be surprised to discover a deja vu component to the Asylum Study. In fact, the problem of decisional disparities in agency adjudication is a landmine of administrative law, which has already exploded on those who suggest that increased managerial control over agency adjudicators is a possible route to reform.

   1. A Primer on the Structure of Agency Adjudication

      The authors of the Asylum Study conclude that "[t]he structure of the immigration courts and the Board [of Immigration Appeals] should be improved along with their decisional processes." (18) They recommend increased independence for immigration judges (IJs) and members of the Board through the creation of an Article I court for immigration adjudication. (19) This recommendation falls at one end of the spectrum of models of decisional independence for agency adjudicators. To understand its implications, we must identify the full range of choices and consider the conflicting goals inherent in structuring administrative adjudication.

      Adjudication of cases within an executive branch agency rests on a premise that is inconsistent with the norm of judicial independence embodied in our Article III courts. In most administrative contexts, the adjudicators-those individuals who decide whether to grant or deny a benefit, or to impose a civil penalty under a particular statute--are employees of the very agency whose caseload they adjudicate. They are, in other words, potentially subject to the supervision and control of one of the interested parties. (20) This is because administrative adjudication, traditionally conceived, is not simply about deciding...