| Cite as: 2 NW J. L. & Soc. Pol'y 1 at http://www.law.northwestern.edu/journals/njlsp/v2/n1/1 | JLSP Home > Volume 2 > Issue 1 (Summer 2007) |
"But I don't want to go among mad people," Alice remarked.
"Oh, you can't help that," said the Cat: "we're all mad here. I'm mad. You're mad."
"How do you know I'm mad?" said Alice.
"You must be," said the Cat, "or you wouldn't have come here."1
¶ 1 Persons seeking asylum in the United States must, like Alice, descend into a world of rules, standards, and characters that seem increasingly mad. Before the asylum seeker lies a land of promise, held out by international human rights standards established a half-century ago.2 Behind the asylum seeker looms the memory and prospect of persecutions of the most horrible varieties. But in between that promised land and memory is a wonderland of arbitrary processes the asylum seeker cannot possibly understand.
¶ 2 The decline of confidence in American asylum adjudication is now front-page material for major mainstream newspapers.3 The tide of resentment has been buoyed primarily by words from the federal judiciary. Judge Julio Fuentes, of the Third Circuit, recently condemned "the tone, the tenor, the disparagement, and the sarcasm" of one immigration judge to be "more appropriate to a court television show than a federal court proceeding."4 Seventh Circuit Judge Richard Posner broadly declared that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."5 Other courts, similarly, have voiced concern over whether the Board of Immigration Appeals's (BIA) streamlining process has transformed the BIA into a rubber-stamp machine.6 Finally, Attorney General Alberto Gonzales himself acknowledged the concerns.7 In memoranda issued to both immigration judges and the BIA, Gonzales conceded that a "comprehensive review of the immigration courts" is in order.8
¶ 3 That the American asylum system has fallen into disrepute is no longer a significantly contested point of debate. What is less understood, however, is exactly why and how the system fell so far. This paper delves into that question, and argues that meaningful reform of the U.S. asylum system must step back and consider the system's very structure.9 Meaningless evidentiary standards combine with minimal administrative and judicial review to result in a system that simply shrugs off material errors. Effective reform must go beyond token quick-fix gestures and instead adopt a new perspective that recognizes that the real problems are systemic.
¶ 4 The following sections analyze major procedural pitfalls the asylum seeker must navigate in American immigration courts. Upon review of the system and the recent responses it has engendered, this paper proposes new perspectives on reforming U.S. asylum adjudication. The proposals do not attempt a comprehensive prescription for U.S. asylum reform—that massive undertaking is left to other writings—but instead offers some alternative perspectives on how to reorient a system gone astray.
¶ 5 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)10 marked a major shift in the United States's treatment of non-citizens at our borders.11 In the asylum context, Congress removed many asylum determinations from the judicial process entirely and replaced them with point-of-entry "expedited removal" determinations by asylum officers.12 Under this procedure, arriving asylum applicants must convince an asylum officer that they have a "credible fear of persecution."13 Notably, a credible fear determination entails not only determining that the applicant is "credible" in the colloquial sense of the word, but further that the applicant has a "significant possibility" of ultimately gaining asylum.14 Should the applicant fail to convince the asylum officer that his or her fear is credible, the applicant is immediately removed from the United States.15 The federal courts have no jurisdiction to review the officers' decisions.16
¶ 6 The shift of authority over asylum determinations from immigration courts to asylum officers is easily criticized.17 By removing credibility determinations from trained immigration judges, asylum seekers subject to expedited removal are quite literally at the whim of whichever officer happens to stand at the border. Immigration officers at this phase can decide an asylum seeker's fate completely free from the strictures of formal proceedings or judicial review.18 Reports consistently—and unfortunately—reveal that the officers have abused this discretion. In one case, immigration officials injured a refugee as they were attempting to remove him; the refugee was then returned to the airport, re-interviewed by different officers, and found to have a credible fear of persecution for his political beliefs in Guinea, where he had been tortured.19 A bipartisan study by the United States Commission on International Religious Freedom concludes that "the outcome of an asylum claim appears to depend not only on the strength of the claim, but also on which officials consider the claim, and whether or not the alien has an attorney."20 From the outset, the fate of an asylum seeker at the U.S. border may be less dependent on a measured consideration of facts than on hope and chance.
¶ 7 If the asylum seeker succeeds in making it past expedited removal, the applicant must present his or her claim in full before an immigration judge. This asylum hearing affords the asylum seeker an expanded opportunity to tell his or her story. Even here, however, the system is mired with subjectivity and a lack of accountability.21 Three problems distinguish themselves significantly. First, immigration judges have afforded the State Department's Country Reports on Human Rights Practices wildly varying degrees of deference.22 In the most extreme cases, the BIA has upheld asylum denials by relying exclusively upon generalized and conclusory State Department human rights reports as dispositive rejections of the asylum applicant's admittedly credible personal testimony.23 Second, legislative reforms have increasingly shifted the burden of persuasion to the asylum seeker, in derogation of foundational norms of refugee law.24 Third, the federal circuit courts have also personally called out immigration judges for simply unprofessional conduct.25 The following sections review these problems and the legal framework that tolerates them.
¶ 8 An applicant for asylum to the United States must prove that he or she has a well-founded fear of persecution in his or her country of origin.26 To establish that the applicant's fear is well-founded, the applicant must show "that a reasonable person in his circumstances would fear persecution."27 An applicant who demonstrates past persecution is afforded a presumptive well-founded fear of future persecution.28 The government may rebut this presumption, however, if it can show by a preponderance of the evidence that the applicant's home country conditions have changed or that the applicant could avoid persecution by relocating within his or her home country.29 In any case, the applicant's claim "cannot . . . be considered in the abstract, and must be viewed in the context of the relevant background situation."30 Country conditions reports, therefore, regularly play a central role in substantiating the objective reasonableness of an applicant's subjective fear of persecution.31
¶ 9 Country conditions reports also play an important role in the immigration judge's credibility determination of the applicant. An asylum applicant's testimony sustains the applicant's burden only where the immigration judge is satisfied that the applicant is credible.32 In making a credibility determination, the immigration judge may require the applicant to provide corroborating evidence, including country condition reports relevant to the applicant's claim.33 In practice, moreover, the BIA holds that "general background information about a country, where available, must be included in the record as a foundation for the applicant's claim."34 Should the applicant fail to provide such background information, the applicant must offer an explanation for its absence.35
¶ 10 An anonymous State Department report announcing to a bona fide asylum seeker that his or her testimony is no longer valid is indeed a difficult pill for the asylum seeker to swallow. Country conditions reports, regardless of their comprehensiveness or veracity, may be fatal to an asylum application where those reports contradict the asylum seeker in virtually any way.36 While circuit courts have regularly held that generalized country condition reports are insufficient to rebut a presumption of well-founded fear based on past persecution,37 near total deference to State Department reports is not uncommon in asylum decisions.38 As the Seventh Circuit recently lamented, the immigration courts are plagued by "chronic overreliance on [State Department] reports."39
¶ 11 The substantive reliability of State Department reports has also been a focus of circuit court disapproval for some time. In the oft-cited decision of Gramatikov v. INS,40 Judge Richard Posner wrote: "[T]here is a perennial concern that the Department softpedals human rights violations by countries that the United States wants to have good relations with."41 This concern, although difficult to substantiate conclusively, has been frequently reiterated in academic circles.42 Empirical studies, for example, have shown historically greater asylum acceptance rates from communist countries than from other countries that are less politically hostile to the United States.43 These concerns, unfortunately, seem to echo indeterminably throughout the circuit courts without much consequence.44 Notwithstanding complaints, immigration judges continue to rely on State Department reports without any formal restraints.45
¶ 12 When the immigration courts treat State Department reports as "holy writs," they are prone to making leaps of faith lacking reasoned or particularized analysis.46 Immigration judges, as the critics charge, "selectively use individual pieces of country conditions information without regard to the nature of that information or how those 'pieces' relate to the record as a whole."47 State Department reports are, by nature, only generalized summaries of recent country conditions.48 Replacing particularized fact-finding with generalized reports puts the reports to a task they are poorly suited for,49 regardless of their veracity, and further implicitly presumes that the applicant's testimony is not credible. Foisting such a burden on the asylum seeker, who is generally without substantial means in the first place, violates international refugee standards as incorporated into U.S. law.50 By careless deference to the reports, the immigration courts abdicate their fact-finding responsibilities to the State Department.51 For those seeking asylum from persecution, the result is a cold "jurisprudence of impatience."52
¶ 13 Although asylum applicants bear the ultimate burden of proof, asylum law recognizes the unique circumstances of asylum seekers and the resultant difficulties they may have in presenting their cases.53 Asylum seekers can be expected to have difficulty speaking about traumatic events54 or even trusting U.S. authorities.55 The immigration court, moreover, almost always has significantly better resources than the applicant to obtain much of the background evidence.56 As the Second Circuit has put it, "a genuine refugee does not flee her native country armed with affidavits, expert witnesses, and extensive documentation."57 Given these considerations, international standards incorporated into U.S. law state both that the asylum applicant is to "be given the benefit of the doubt" and that "the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner."58
¶ 14 While the law's expression of sympathy for asylum seekers may be seen as a false promise,59 recent legislative amendments to the Immigration and Nationality Act (INA) have removed the promise altogether. The 2005 REAL ID Act's sweeping evisceration of procedural safeguards is alarming.60 Among other things, the REAL ID Act requires asylum seekers to prove one "central reason" of their persecution.61 Prior case law, in consideration of the asylum seeker's aforementioned evidentiary difficulties, required only that the asylum seeker demonstrate one of his or her persecutor's motives. This was especially relevant in so-called "mixed motive" cases, where it was deemed unreasonable to expect the asylum seeker to essentially present his or her persecutor with a note asking, "are you primarily persecuting me on account of race, religion, nationality, political opinion, or membership in a particular social group, or do you have multiple or secondary reasons in mind?" The silver lining for asylum seekers is that the new requirement is so patently absurd and unworkable that it will likely be ignored in practice.
¶ 15 Other provisions of the REAL ID Act are similarly troubling. The act expressly invites immigration judges to base their credibility determinations not only on the internal consistency of the applicant's testimony—which may itself be difficult for reasons of translation or trauma, among others—but also on consistency with State Department reports.62 An asylum seeker may suffer an adverse credibility determination simply for asserting a claim contrary to a State Department report, regardless of the materiality of the inconsistency.63 The choice this can present to the asylum seeker is dizzying: either express the truth and risk a discretionary adverse credibility determination for inconsistency with a bureaucratic report, or lie for consistency's sake but risk losing one's claim for reason of fraudulent testimony.
¶ 16 The problems of the REAL ID Act go on, but the sentiment behind the amendments is consistent: asylum seekers must not be trusted. Even assuming arguendo that such xenophobia is warranted, a solution logically suited to the concern would attempt to discern between meritorious and non-meritorious asylum claims. A requirement that asylum seekers prove the central motive of their persecutor presents an obstacle that would be insurmountable for all asylum seekers, regardless of the merit of their claims. Such an imposition is not only cruel, not only arbitrary, but also increases the likelihood that bona fide refugees will be returned to countries where they will be persecuted, tortured, or even killed. By doing so, the United States violates its commitments under both domestic64 and international law.65
¶ 17 To accuse a "jurisprudence of impatience" or lament the deterioration of refugee law is one thing. To outright call into question the competence of a specific judge is another. Yet time and time again, the federal courts have found themselves forced to do just that.66 These criticisms focus not on evidentiary standards specifically, but rather on a professional concern that immigration judges and the BIA may care more about clearing their dockets than the asylum applicants before them.67 Indeed, reports suggest that immigration judges and the BIA may have even consciously strayed from their responsibilities as neutral arbiters in asylum proceedings.68 Considering the stakes at hand for asylum seekers, such cavalier abuses of authority deserve rebuke for more than academic purposes.
¶ 18 Examining a particular example of how an immigration judge can abuse authority illustrates the problem. In Fiadjoe v. Attorney Gen. of the United States, a Third Circuit decision, a Ghanaian asylum applicant alleged that her father enslaved and began raping her at age seven.69 When the applicant fell in love and conceived a child with a Muslim man, her father beat her until she had a miscarriage.70 When the man came to her home, her father beat him to death in front of the applicant.71 When the applicant eventually came to the United States, a psychologist found that she struggled to communicate or make any eye contact, and frequently dissociated due to her emotional trauma.72 At her asylum hearing, the applicant broke down and cried while attempting to testify about her abuse.73 The following exchange between Immigration Judge Donald V. Ferlise and the applicant was typical of the entire hearing:
Ferlise: Ma'am, you, you can cry, that's fine, but you're not making any sense, and the tears do not do away with the fact that you're not making any sense to me. Now, rather than crying, just answer the question. You said, your father raped you at age seven and he would beat you, correct?
Fiadjoe: Yes, but I didn't tell anybody.
Ferlise: I don't care if you did or not. At age seven, how long did this go on that he was raping you and beating you?
Fiadjoe: In fact, he was doing that to me when I cried to my auntie, I want to—
Ferlise: —Ma'am, I don't like it when someone beats around the bush, okay, when they don't answer me.74
¶ 19 The Third Circuit found that Ferlise's adverse credibility determination was not supported by substantial evidence, and on remand he was removed from the case.75
¶ 20 Instances like this might be regarded as mere unfortunate errors if they were isolated, corrected, and the abusive immigration judges ferreted out. Astonishingly, however, Fiadjoe is not atypical. Not only has the Third Circuit recently found Judge Ferlise to be improperly abusive in yet another case,76 but his reckless attitude is evident in numerous other asylum determinations reviewed by the federal courts of appeal. As a study by the National Law Journal determined, "[a]t least 25 appellate opinions have criticized immigration judges' treatment of aliens during deportation and asylum hearings since 2003. In 13 of those cases, the panels found the conduct so egregious that they said the case should be assigned to a new judge."77 The circuit courts have likewise surveyed the widespread nature of the abuse. In Benslimane v. Gonzales, the Seventh Circuit opened its decision by string-citing twelve cases of administrative incompetence, en route to declaring that "adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."78 Immigration lawyers, for their part, have further complained that some immigration judges manipulate the court record by turning the recording machine on and off, and intimidating applicants when off-record.79 Notwithstanding occasional government protests to the contrary, the problem has become obvious and severe.80
¶ 21 The root of the problem lies not in some inherent incompetence of immigration judges, but rather in the system itself. It must be said, in fairness, that most immigration judges discharge their duties ethically, meticulously, and respectfully. Unfortunately, the system has also tolerated and even encouraged those judges who do not. While the Executive Office of Immigration Review (EOIR) has published an ethics manual for immigration judges and the BIA,81 until recently the disciplinary system operated in secrecy and was seen as "not worth the paper it's printed on."82 Attorney General Gonzales has recently directed the creation of a formal Code of Conduct and performance evaluations performed by EOIR, however, based upon the results of the immigration court survey commenced in early 2006.83 While these are clearly praiseworthy developments, some caution may be warranted until the substance and effect of these reforms is known.84 Rumors of EOIR's willful blindness to misconduct, and the condemning judgments of the federal circuit courts, leave an impression not easily erased.85
¶ 22 Many critics trace the problem back to Attorney General John Ashcroft's aggressive reforms of 2002 and 2003.86 In January of 2002, the National Association of Immigration Judges (NAIJ) formally asked Congress to remove their courts from the control of the Department of Justice (DOJ).87 The request was the culmination of a bipartisan congressional study by the United States Commission on Immigration Reform, which concluded that the immigration courts would best function free from "[t]he taint of inherent conflict of interest caused by housing the Immigration Court within the DOJ."88 The concern stemmed from, among other reasons, repeated instances of intervention in immigration cases by colluding INS and DOJ officials seeking to bypass the adjudicatory process.89
¶ 23 Attorney General Ashcroft responded quickly—but in the manner opposite to what NAIJ had hoped. In 2002 he announced his intention to reduce the number of judges on the BIA, and in March 2003 he gutted the BIA from twenty-three to just eleven judges.90 As data compiled by longtime House Judiciary Committee legal staff member Peter Levinson revealed, Ashcroft removed exclusively those members with the most "liberal" records.91 Ashcroft also promulgated new regulations which subtly redefined the role of the BIA members. Whereas the Code of Federal Regulations governing the BIA previously began "Board Members shall exercise their independent judgment and discretion in cases coming before the Board," upon Ashcroft's amendments the sentence was replaced thus: "The Board members shall be attorneys appointed by the Attorney General to act as the Attorney General's delegates in the cases that come before them."92 While Ashcroft's reformation of the immigration bench was a top-down process, immigration judges are as vulnerable to discretionary "reassignment" as the purged BIA members.93 As Professor Stephen Legomsky put it, "[t]he message was simple: 'You rule against the government at your personal peril.'"94
¶ 24 What the Seventh Circuit has deemed "adjudication . . . below the minimum standards of legal justice,"95 in other words, may have been precisely Ashcroft's brand of justice all along. The glimmer of hope such a realization provides is that a system so consciously destroyed may likewise be consciously repaired. As the following sections demonstrate, however, meaningful reform must look beyond the trial level and individual immigration judges. Just as immigration judges are insulated by seemingly toothless ethical standards, immigration decisions are insulated by extraordinarily deferential review.
¶ 25 Despite the foregoing review, perhaps the most glaring fault of the current procedural system has been its deficiencies on appeal. The problem is two-fold: first on administrative appeal to the BIA, and second on federal appeal to the circuit courts. As the following sections demonstrate, the problems generally trace back once again to the Ashcroft reforms of 2002.
¶ 26 "When the BIA had a more active role, it would clean up decisions . . . . Now the BIA is a rubber stamp."96 So said former BIA Judge Lory Rosenberg recently to the National Law Journal, voicing a not uncommon charge.97 Judge Rosenberg referred to Attorney General Ashcroft's expansion of BIA "streamlining," which is a process by which a single BIA member may affirm an immigration judge's decision without any issued opinion.98 Streamlining, however, is not the only problem. Deferential factual review and continued misuse of country conditions reports also plague BIA decisions. These latter considerations set the stage for the downfalls of streamlining, and are thus reviewed first.
¶ 27 Prior to 2002, the BIA exercised independent authority in reviewing immigration judges' decisions de novo, for both issues of fact and law.99 Despite this authority, the BIA's review of factual determinations was distinctly deferential, keeping in mind the unique position of the immigration judge to hear the applicant's testimony personally.100 To strike the appropriate balance, the BIA would parse the factual determinations of the immigration judge to ensure reasonableness, but would err on the side of deference.101 This brand of de novo review protected asylum applicants from the sort of reckless abuse reviewed supra Part II.B., while also recognizing and respecting the function of the immigration courts.
¶ 28 The BIA no longer may conduct de novo factual review, and instead must adopt the immigration judge's factual determinations only unless they are "clearly erroneous."102 Ashcroft's reforms also expressly prohibit the BIA from engaging in any factfinding of its own.103 In practice, this generally means that immigration judges' factual determinations, either for or against the individual, are insulated from any review whatsoever.104 While a "clearly erroneous" standard of factual review is not uncommon in appellate review, the BIA is an uncommon body reviewing uncommon adjudicative deficiencies with uncommonly severe ramifications.105 What administrative efficiency may be accomplished by preserving immigration judges' factual determinations should be tempered by considering the potential harm to asylum applicants or to the government.
¶ 29 Rather than keeping immigration judges' overreliance upon State Department reports in check, the BIA has gone even further by taking uncontested administrative notice of the reports.106 Although the BIA may not engage in factfinding, the applicable regulations grant the BIA an exception to take administrative notice of "the contents of official documents."107 In practice, the BIA will take administrative notice of any country report, assuming the BIA deems it useful. While country reports may be a useful tool for the represented asylum applicant, for the pro se applicant the effect may be to perfunctorily reject credible testimony without affording the applicant even the opportunity to respond.108
¶ 30 The problem is one of contestability. Not only does administrative notice of country reports rely on an unknown and un-present author,109 it also lacks the asylum applicant's perspective entirely.110 Some federal courts, moreover, have upheld the BIA's refusal to even provide the individual an opportunity to argue against administrative notice.111 Considering that the BIA has never been required to "independently specify its reasons for rejecting every piece of evidence,"112 affording the BIA such additional latitude opens the door for patently superficial analysis to the detriment of defenseless refugees. In In re E-P-, for example, the BIA relied on a State Department report in making the now-laughable determination that the 1997 U.S. involvement in Haiti had restored democracy, human rights, and stability to the troubled country.113 The decision acknowledged but ignored reports of continuing paramilitary threats, and their specific relevance to the asylum applicant's claims.114 The applicant was not afforded an opportunity to testify in response, and was ordered removed to Haiti—where, in 2004, paramilitary forces captured towns and cities during a violent uprising, President Aristide was forced into exile, and retributive and political killings escalated.115
¶ 31 Just as immigration judges might lazily rely upon legislative reports for adjudicative factfinding, the BIA may likewise uphold such deficiencies and provide perfunctory factual determinations itself. What is being considered, what weight it is given, and what its veracity may be is indeterminable and uncontestable.116 Whether one is pro- or anti-immigration, the failure to diligently discern between meritorious and non-meritorious claims should be alarming for any serious immigration reformist.
¶ 32 The problems of administrative appeal reviewed thus far are but mere details when compared to BIA streamlining. In 2002 Attorney General Ashcroft finalized BIA streamlining, a procedure whereby a single BIA member must affirm an immigration judge's decision without opinion ("affirm without opinion," or AWO), if that BIA member concludes the initial decision was correct and that any errors were harmless.117 AWO is mandatory, not discretionary.118 Prior to 2002, BIA decisions were arrived at by a three-member panel, except in certain circumstances designated by the Board Chairman under an experimental and limited version of streamlining.119 As the regulations now make clear, one-member affirmances without published opinion are the new norm.120 In 2004, the eleven members of the BIA decided 48,707 cases, approximately ninety-three percent of which were issued by a single board member.121
¶ 33 It is often said that there are four goals of any administrative process: accuracy, efficiency, acceptability, and consistency.122 The streamlining regulations, and the curiously concurrent purge of BIA members, violate all of these goals. Streamlining decreases accuracy by diminishing meaningful review.123 Streamlining decreases efficiency because, although the BIA may succeed in initially clearing its backlog, the level of adjudicative accuracy is so low that the circuit courts have been forced to remand a vastly increased percentage of cases for repeated hearings.124 A system that routinely remands cases for repeated hearings, quite plainly, is one that institutionalizes inefficiency.125 Streamlining decreases acceptability,126 as demonstrated factually by the widespread revolt of the immigration community.127 As a comprehensive study published in the Georgetown Immigration Law Journal determines, "[m]any lawyers have lost faith in the BIA and are now concentrating their energy and resources on the federal courts of appeal instead."128 Streamlining also decreases consistency, because the elimination of written opinions diminishes institutional memory and the development of legal doctrine through case law.
¶ 34 Administrative notice of country conditions reports and a distinct lack of meaningful factual review, as reviewed supra, had already sent the BIA down a dangerous path notwithstanding streamlining. With the reduction of the size of the BIA and the enactment of one-member affirmations without opinion—often performed not even by a BIA member directly, but rather by administrative staff129—the BIA has been restructured to abandon its adjudicative duties completely. The result is a system that tolerates immigration judges' faulty decisions, replaces meaningful administrative review with a rubber stamp, and leaves the federal courts of appeal with an administrative record bearing little meaningful relation to the petitioner's claim.130
¶ 35 By the time an asylum case arrives at a federal court of appeals, the administrative record may be so confusing that it is no longer of any use at all.131 Initial credible fear determinations are made by officers on the spot, with no development or consideration of the factual record.132 Subsequent immigration judge decisions may be distempered, careless, or simply unintelligible.133 The BIA may summarily affirm such decisions without explanation.134 The federal circuit courts, faced with this mess, may be forced to pronounce a brand of justice that is as illusory as the administrative record it is predicated upon.135
¶ 36 Federal courts considering BIA findings are obligated to exercise review with extreme deference.136 A BIA finding of no credible fear of persecution must stand, upon the closed factual record,137 unless the evidence is "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution."138 This "compelling evidence" standard sets a bar that has been construed as higher than the typical "substantial evidence" standard of administrative review, despite the "benefit of the doubt" supposedly afforded to asylum seekers.139 Among other shortcomings, this standard of review forecloses virtually any meaningful evaluation of the agency's factual determinations and use of country reports.140
¶ 37 In one illustrative case, the Third Circuit in Berishaj v. Ashcroft found itself facing an administrative record so deficient that the court simply admitted that it could not exercise meaningful review.141 The initial adverse determination by the immigration judge had no apparent relation to the record.142 The factual administrative record, including country condition reports, was more than four years out of date.143 The BIA affirmed the immigration judge's decision without opinion, neither supplementing nor expressing an evaluation of the administrative record.144 The result, the court chided, was an "embarrassment to the Agency on multiple levels."145 Not only was the immigration judge's initial opinion "open to ridicule,"146 but the BIA's failure to supplement or review the record suggested an indifferent "not our problem" attitude.147 Given the Third Circuit's limited scope of review, moreover, the court could not compensate for the decision's deficiencies by supplementing the record itself.148
¶ 38 The Court thus turned directly to Congress and the Executive, and issued the following plea:
[W]e call on Congress, the Department of Justice, the Department of Homeland Security, and the BIA to improve the structure and operation of the system, so that all may have the confidence that the ultimate disposition of a removal case bears a meaningful connection to the merits of the petitioner's claim(s) in light of contemporary world affairs.149
¶ 39 An unintended consequence of BIA streamlining has been the widespread rousing of the circuit courts.150 Since the enactment of streamlining in 2002, the immigration caseload of the circuit courts has expanded from just below 200 cases per month to nearly 1,200.151 Yet, without procedural reform, there is little the circuit courts can do but complain. The extremely limited scope of review afforded the circuit courts prevents them from significantly intervening in the merits of asylum adjudication.152 Cases involving "cookie-cutter" determinations or abusive judges are typically remanded to work their way once again through the immigration courts.153 There is, unfortunately, no procedural guarantee that an order to "do it again" means that it will be done right.
¶ 40 Judicial responses to the problem of inadequate administrative records, as reviewed in Berishaj, have been strained and divided. The Seventh Circuit has instituted the practice of taking "judicial notice of post-final-agency-determination developments, in the form of new country reports, and at times rests its disposition on these developments."154 This practice clearly violates Supreme Court precedent, however, that the federal courts must base their review of administrative agency determinations "purely on the basis of the reasons offered by, and the record compiled before, the agency itself."155 Indeed, even the Seventh Circuit itself has voiced apprehension regarding introduction of administrative and judicial notice in asylum proceedings.156 Not only does taking judicial notice risk depriving the applicant of the opportunity to be heard,157 it also "carries with it the potential for wholesale relitigation of many immigration-law claims."158 The Third Circuit, for this reason, simply returns the claim for administrative rehearing when it determines the record is deficient beyond reasonable use.159 As noted earlier, however, such remands decrease efficiency and confidence in the immigration courts,160 and provide no assurance that the system's procedural faults will right themselves. With these concerns in mind, the circuit courts remain divided concerning the use of judicial notice.161
¶ 41 Attorney General Gonzales concluded his review of the immigration courts and BIA on August 9, 2006, by announcing the implementation of twenty-two reforms.162 Highlights of the reforms include establishment of a code of conduct for immigration judges and the BIA, a performance evaluation process for immigration judges and the BIA, increasing the size of the BIA, and direction to prepare a plan seeking budget increases for the immigration courts and BIA.163 Conversely, however, the reforms also entail preservation of BIA streamlining and increase sanction authorities for immigration judges "to control their courtrooms."164 The reforms do not seem to affect procedural rules of the immigration courts, however, and the substance of the proposed code of conduct is yet unknown. Praising or criticizing the effectiveness of the reforms, therefore, may still be premature.
¶ 42 In a limited response to Berishaj,165 the Office of Immigration Litigation (OIL)166 also enacted a new policy designed to screen asylum appeals with stale administrative records.167 This new policy, as described in the appendix to Ambartsoumian v. Ashcroft,168 establishes that "as a matter of prosecutorial discretion" the government should screen out and seek to remand cases involving outdated records.169 To effectuate this, the Director of OIL has informed all attorneys under his supervision to bring cases to his attention when those cases favor remand. In determining whether a case favors remand, the attorney should consider such factors as "(1) whether there have been pertinent, intervening events in the country of removal; and (2) whether the issues on review are 'time sensitive' in that changes in conditions over time may affect the resolution of the cases."170 The policies have yet to elicit much response from the federal courts or commentators.171
¶ 43 The REAL ID Act of 2005172 neither holds itself out to be nor effects a response to the concerns reviewed herein, but its provisions are quite significant. The reforms, designed explicitly to "prevent[] terrorists from obtaining relief from removal," raise the burden of proof for asylum seekers and broaden the discretion of immigration judges to deny asylum.173 While some Congresspersons have criticized the 2002 reforms,174 the REAL ID Act is the only relevant enacted legislation since then. As a review,175 the Act's most relevant provisions are the following:
Require an applicant to establish that a "central reason" of his or her persecution was one of the enumerated protected grounds for asylum;176
Allow immigration judges to base credibility determinations on demeanor alone;177
Allow immigration judges to base credibility determinations on the consistency of the applicant's statements internally, or with other evidence of record, including State Department reports;178 and
Allow immigration judges to deny asylum based on lack of corroborating evidence, even if the applicant presents otherwise credible testimony.179
¶ 44 The faults of these specific provisions have already been addressed, in part, in the preceding sections.180 The REAL ID Act's shortcomings, however, cannot be adequately discussed by narrowly focusing on the act's provisions individually. The real problem is one of perspective.
¶ 45 "It is wrong from beginning to end," said the Caterpillar, decidedly; and there was silence for some minutes.181
¶ 46 The American asylum system has become a wonderland of arbitrary procedures yielding arbitrary results. The problems of the U.S. asylum system are not singularly discrete, but rather are interrelated symptoms of a process poorly understood and becoming increasingly wayward. Meaningless evidentiary standards, arbitrary assertions of judicial fiat, and institutionalized indifference have turned the administrative system on its head. For Congress, however, it may as well all be the fictional Wonderland of Lewis Carroll. It is remarkable how distinctly opposite Congress's reforms run to the criticisms levied by the judiciary, practitioners, and academics. The greatest hurdle in reforming the asylum system lies not in finding solutions,182 but rather in simply appreciating the problems. The two most recent government reforms are critiqued below.
¶ 47 Attorney General Gonzales's twenty-two reform directives are a welcome response to judicial abuse in the immigration courts. The deliberate creation of a code of conduct and an oversight process managed by EOIR directly respond to the criticisms of the Circuit Courts and immigration commentators. The reforms also, however, leave much unresolved. Most pointedly, the reforms propose a mechanism to police the immigration system without actually reforming the system itself. Both the prosecution and adjudication of immigration claims, for example, continue to be determined by the Executive branch, maintaining an inherent conflict of interest. The reforms' provision of additional sanction power to immigration judges, above and beyond pre-existing sanction power,183 also provides immigration judges with further means to intimidate asylum applicants. Finally, as of this writing, the "code of conduct" itself and the oversight procedures it entails have yet to be drafted and implemented. The perspective necessary to evaluate the reforms, therefore, will not exist for some time.
¶ 48 OIL's reforms are also largely indeterminable, albeit for different reasons.184 The only evidence of OIL's supposed response to Berishaj is found in Ambartsoumian v. Ashcroft, where the court appended the government's explanation of its new policy.185 One is left with the impression that the court's generous transparency was intended to satisfy curious readers, unable to find any record of the policy elsewhere. Indeed, it appears that even the Third Circuit has little knowledge of the workings of the policy. In Kamara v. Att'y Gen., the only post-Ambartsoumian decision considering the OIL policy, the court could only offer one sentence in review of OIL's determination: "DHS states that '[t]his case has been screened pursuant to this policy,' and it has deemed remand inappropriate."186 This cryptic pronouncement only invites speculation.
¶ 49 Speculation regarding OIL's stance on State Department reports, moreover, only begets more speculation. Since Berishaj, the only official mention OIL has given regarding its reliance on these reports has been in its December 2004 issue of its Immigration Litigation Bulletin.187 An article by OIL officer John Cunningham goes to great lengths to dismiss courts' dissatisfaction with reliance upon State Department reports as "dicta in its purest sense."188 Instead, Cunningham forcefully advocates deference to State Department reports "because they concern matters within that agency's area of expertise."189 Cunningham concludes by asserting that "no court has held that State Department reports do not constitute substantial evidence."190
¶ 50 Regardless of the substantive quality of Cunningham's assertions, the thrust of the article provides insight into OIL's position on State Department reports: not only may they be relied upon, but they ought to be relied upon. Never mind that the Department of Justice has been entrusted to adjudicate immigration and asylum claims—these are matters "within [the State Department's] area of expertise."191 This position contradicts broad reformist judicial and academic sentiment against mechanical deference to the State Department by stubbornly insisting upon the status quo. Hope for progressive reform from OIL seems naïve.
¶ 51 Whatever OIL's actual position on the current evidentiary system may be, it is likely not the ideal administrative body to resolve problems of fairness and accountability.192 By internalizing the problem, OIL further cloaks the asylum process in uncertainty. Perhaps more pointedly, OIL's procedural reforms apparently do not even involve the asylum applicant. Rather than affording the applicant an opportunity to be heard, the reforms merely attempt to shift decisions regarding country conditions away from the courts and internalize them. Even assuming OIL's reforms are sincere, they neither succeed nor inspire confidence by virtue of their opacity.193
¶ 52 The primary problem with the evidentiary system in asylum proceedings is that it tolerates poorly reasoned determinations.194 The issue is not whether more or less asylum seekers ought to be admitted as an aggregate whole; it is simply that our asylum system ought to accurately determine which asylum applicants qualify under our current laws and which do not. Our current system falls well short of this goal.195
¶ 53 The REAL ID Act further removes this goal from the realm of possibility. The Act simultaneously increases the petitioner's burden196 while decreasing the immigration judge's obligation to tether his or her determinations to the factual record.197 Meanwhile, the Act offers no response to concerns regarding streamlining procedures that turn the BIA into a rubber-stamping machine, or the problem of deficient administrative records. Indeed, the Act gives immigration judges greater latitude to issue decisions that are based more on feeling than factual record,198 and explicitly endorses reliance upon State Department reports.199 The REAL ID Act is, in short, an affront to Judge Becker's pleas in Berishaj as echoed by other courts and academics throughout the country.200
¶ 54 The far-reaching nature of the REAL ID Act suggests that Congress was more concerned with political pandering on terrorism than judicial function. An early version of the Act, for example, incorporated a second bill that would have restricted all judicial review, including habeas corpus, in all removal proceedings, including asylum.201 Article One of the U.S. Constitution provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."202 The habeas writ has not been suspended since the Civil War.203 The House sent the REAL ID Act to the Senate, moreover, as part of a "must pass" appropriations measure for the war in Iraq and tsunami relief.204 Title I of the final version, more obviously, is titled "Amendments to Federal Laws to Protect Against Terrorist Entry."205 The REAL ID Act, ostensibly, was making someone look tough.
¶ 55 What the Act does little to contemplate, however, is what it contributes to pre-existing laws that already bar terrorists from entry.206 By increasing immigration judges' discretion to grant or deny asylum regardless of the record as a whole, and by failing to address increasingly obvious procedural deficiencies, the REAL ID Act diminishes the reliability of the asylum system by blurring its standards. Such a system may well result in fewer successful asylum applications, but the aggregate decrease has no discernable relationship to terrorism.207 A hasty immigration judge, in fact, may use the REAL ID Act's endorsement of unreviewable discretion to admit more asylum seekers by relying on such factors as demeanor and State Department reports, instead of an individualized assessment of the record.208
¶ 56 The problem with these reforms is perspective—they presume that the problems stem from asylum applicants themselves and thereby are blind to real systemic deficiencies. A more reliable approach would be to increase the resources of the immigration courts and set down solid evidentiary rules that require careful and particularized consideration of the facts. These requirements could then be ensured by restoring meaningful administrative and judicial review. Whatever the specific reforms may be, they must recognize that the procedural problems are real.
¶ 57 Of the most frustrating aspects of the regression of U.S. asylum procedural law is the available-but-ignored wealth of solutions. Solutions do exist—indeed, they are abundant. Professor Peter Margulies, for example, offers a multifaceted "dynamic view" of evaluating legislative and adjudicative facts in asylum proceedings.209 While Margulies's approach specifically addresses the issue of country conditions, his theory is well-suited as a comprehensive reorientation of factfinding. The approach would require the immigration judge to carefully analyze "on the ground" conditions relevant to the asylum seeker's claim by applying four elements:
a) [P]lacing the burden of proof on changed country conditions on the [immigration agency] in all cases, not merely those involving proven instances of past persecution; b) requiring specific findings of fact by adjudicators regarding the crucial elements of institutional repertoire, inclusiveness, and redress; c) requiring independent authority, beyond State Department reports, to justify a finding of changed country conditions; and d) requiring the Immigration Judge to conduct the asylum hearing fairly, specifically by allowing the asylum-seeker an opportunity to tell her story.210
¶ 58 The first of these requirements would not only cease the logically problematic distinction between cases of past persecution and future persecution,211 but would also reflect a more realistic balancing of the applicant's and government's roles. Requiring an asylum seeker to prove unchanged country conditions, despite credible personal testimony, puts a heavy burden on the applicant that arguably exceeds both international and U.S. standards.212 More practically, the government generally has better resources than the applicant to provide legislative facts.213 Requiring the government to bear the burden of proof with regards to legislative country conditions evidence would be more consistent with the roles of the applicant and government in asylum proceedings.214
¶ 59 The second requirement of specific factfinding ensures that immigration judges must base their decisions on evidence on the record, rather than speculation or conjecture.215 While Margulies's three factors of institutional repertoire, inclusion, and redress, need not necessarily be exclusive, they lay an important foundation.216 Experience has proven that immigration judges, unfortunately, do not always produce carefully measured asylum decisions.217 By establishing specific and meticulous factfinding standards, deficient decisions may and will be overturned—rather than rubber stamped—upon review.
¶ 60 Margulies's final two requirements help enforce the immigration judge's factfinding obligations by rooting out two common problems directly. Under Margulies's third requirement, rote citation to State Department reports would be declared per se insufficient.218 Margulies would not declare that State Department reports are necessarily unreliable; rather, Margulies would only require that their assertions be checked against other available independent sources.219 While the State Department's report would be heeded, the asylum applicant would be appropriately safeguarded against hasty judicial abdication to them.
¶ 61 Fourth and finally, Margulies would require that the immigration judge grant the applicant an adequate opportunity to tell his or her story.220 As reviewed supra Part II.B.3, complaints of plainly unprofessional conduct by immigration judges have increased dramatically.221 By adopting conduct-specific requirements, inappropriate conduct would cease to slip by the lax standard of review afforded asylum decisions.222 Such an assurance is of great importance not only to the fidelity of the administrative process, but also to the overwhelmed asylum seeker.223
¶ 62 These are not radical ideas. Traditional asylum law already imposes an evidentiary "duty to inquire"224 on immigration courts, which "reflects the government's obligation to place justice and international refugee law ahead of adversarial proclivities."225 Under this duty, the government and the court are obligated to assist in fully developing the factual record.226 Codifying the elements proposed by Margulies would merely force the immigration judge to fulfill his or her role as originally conceived.227 The BIA and federal courts could then apply these same elements upon review to assure that asylum determinations are adequately thorough.
¶ 63 Another writer's approach would more clearly delineate "legislative and adjudicatory" facts,228 require particularized and "on the ground" assessment of country conditions, and relax the standard of judicial review so that federal courts may reverse decisions that rest on "faulty assumptions or factual foundations."229 The first two proposals are essentially repackaged versions of Professor Margulies's factors;230 the last proposal, however, goes beyond Margulies's model. Affording the federal courts a less deferential standard of review would help remedy the widespread lack of confidence they express in the administrative record of asylum determinations.231 While statutorily codifying Margulies's recommendations would substantially accomplish the same effect, reinforcing this approach with heightened review would directly restore the system's accountability.
¶ 64 BIA and federal appeals court policy on taking notice of country conditions, moreover, ought not to continue in diverging confusion. One possible solution, as advocated by Katherine Strandburg, would be to grant motions to re-open as of right, transforming them into a mechanism whereby the asylum applicant would be assured an opportunity to rebut administrative notice of changed country conditions.232 Reviewing courts would be afforded the opportunity to draw from contemporary country reports by taking notice, and the asylum applicant would be guaranteed an opportunity to challenge the reports if he or she desired.233 Such an approach would not solve deficiencies at the initial asylum hearing, but they would do much to rectify the false pretense that reviewing courts are deciding upon a complete administrative record. What problems exist at the initial hearing, moreover, could be resolved by resorting to the previous proposals discussed herein.
¶ 65 Common among these proposals is a recognition that sincere asylum reform ought to focus on effectively discerning between meritorious and non-meritorious claims. What is less important is whether the asylum system simply admits more or less applicants as an aggregate whole. Unfortunately, this latter consideration appears to be the one Congress has seized upon. While the federal courts complain of administrative records so deficient that they are in practice outright meaningless,234 Congress unfortunately responds by relaxing evidentiary standards and reducing judicial review. Legislation being considered on the eve of this paper's submission, moreover, affirms and continues this trend.235 Clearly, something is amiss. Before effective asylum reform can occur a new legislative perspective is necessary.236
¶ 66 Once the faults of the procedural system emerge from the bloodshot haze of 9/11, however, necessary reform should become clear. First, meaningful review must be restored to both the BIA and the federal courts. The reforms of 2002 discussed herein, including streamlining, are now obvious failures. In promulgating streamlining, Attorney General Ashcroft expressly declined waiting for the results of a Congressional study and instead cursorily observed that preliminary forms of streamlining yielded only a 0.7% federal remand rate.237 In the past year, the Seventh Circuit reversed 48% of appeals from the BIA.238 We now know that Ashcroft was wrong, that the reforms of 2002 are a failure,239 and we ought not dwell on it further. Restoring confidence in the U.S. asylum system must begin by casting aside these disasters and replacing them with review that ensures that errors will not be tolerated.
¶ 67 Once meaningful review has returned to the courts, an evidentiary system with meaningful standards may be contemplated. The substance of these standards is secondary; what is most important is that immigration judges and the BIA are subject to explicit procedural rules that guide their decisionmaking and thereby also provide standards for review. The proposals reviewed herein are informative. Margulies's reforms would correct many of the deficiencies in initial asylum hearings, while Strandburg's reforms would provide appellate courts the means to conduct meaningful review. These reforms need not be the beginning or the end of reforming the asylum process. Margulies's quite specific factfinding proposals,240 for example, provide a framework that need not be adopted wholesale to effectuate their purpose. None of the proposals, further, address the evidentiary infirmities of expedited removal. What they do offer, however, is a reliable administrative structure that reflects the underpinnings of refugee law.
¶ 68 This paper set out to identify the procedural deficiencies of American asylum adjudication, and offer perspective for reform. It is, however, an incomplete story. Future legislators, advocates, judges, and writers bear the burden of seeing reform effectuated. In order for that chapter to begin, a new perspective is necessary. Reform must look past individual instances of error and instead consider how the system's very structure has failed.
¶ 69 Whether the political climate is ripe for such a shift is questionable. In Congress today, xenophobia is unmistakable.241 "Xenophobia," of course, is only the newest politically correct euphemism for racism.242 Attorney General Alberto Gonzales's reform directives to the immigration courts, however, appear generally to be a step in the right direction. The judiciary, finally, is well ahead of the curve in its incisive critiques of the immigration courts. How the immigration courts decide to apply the REAL ID Act is also unclear. When INS v. Elias-Zacarias seemingly sounded the death-knell of the doctrine of imputed political opinion,243 for example, the BIA nonetheless found enough exceptions in the Supreme Court's opinion to safely revive the doctrine.244 An assessment of the effects of the REAL ID Act on asylum proceedings may similarly be premature.
¶ 70 Reform will also cost money. There is no question that restoring meaningful adjudicative process to the U.S. asylum system also requires meaningful funding, which is always a four letter word in political discussions of immigration.245 The 2002 streamlining reforms and BIA reduction, however, have done the government no favor. Not only do they destroy the immigration agency's ability to take its job seriously, they also cost money by institutionalizing inefficiency through endless loops of litigation.246 Eleven BIA judges deciding 48,000 cases per year simply defies all notions of common sense, although it does inspire sympathy.247 In the end, Congress must admit that readiness to take immigration seriously means readiness to commit adequate resources.
¶ 71 All the meanwhile, however, refugees wait in detention centers and prison cells across the United States. They appear before immigration judges who may or may not abuse them, depending on their luck. They appeal to phantom administrative bodies from whom they never see nor hear. They await appeal before federal courts that have minimal authority to help them. They fear persecution and death upon removal. The Wonderland they know was not familiar to Alice.
The Immigration Judge found that the respondent provided credible testimony establishing that he suffered past persecution in Vietnam. The Immigration Judge also found that conditions in Vietnam for persons such as the respondent have not changed so substantially that the respondent no longer has a fear of returning. On this record, we are not left with the definite and firm conviction that the Immigration Judge's finding is clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (2005); United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Thus, we decline to set aside the Immigration Judge's finding that the respondent sustained the burden of proof applicable to withholding of removal.
Id.
It has been a long time since this country heard a call to organized lawbreaking on this big a scale. Cardinal Roger Mahony of the Roman Catholic Archdiocese of Los Angeles, the nation's largest, urged parishioners on Ash Wednesday to devote the 40 days of Lent to fasting, prayer and reflection on the need for humane reform of immigration laws. If current efforts in Congress make it a felony to shield or offer support to illegal immigrants, Cardinal Mahony said, he will instruct his priests—and faithful lay Catholics—to defy the law. . . .
. . . .
Cardinal Mahony's declaration of solidarity with illegal immigrants, for whom Lent is every day, is a startling call to civil disobedience, as courageous as it is timely. We hope it forestalls the day when works of mercy become a federal crime.
Id.
| © Copyright 2007 by Northwestern University School of Law, Northwestern Journal of Law and Social Policy | Volume 2 Issue 1 (Summer 2007) |