Rethinking Review Standards in Asylum
Kim, Andrew Tae-Hyun, William and Mary Law Review
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)
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. …