Immigration Article of the Day: The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees by Charles Shane Ellison
The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees by Charles Shane Ellison, Georgetown Immigration Law Review, Forthcoming
Abstract
There are deep, variegated, and unresolved inter- and intra-circuit tensions regarding how the U.S. courts of appeals classify the five core elements of the refugee definition as factual, legal, or mixed for purposes of selecting a standard of review. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to the fact-law divide regarding the refugee definition. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where the risk of erroneous denial involves the return of a putative refugee to persecution, torture, or death.In this article, I provide the first comprehensive survey of each of the five core elements of the refugee definition to show the depth of disagreement related to standards of review between the circuits. Notwithstanding the high stakes involved in reviewing asylum denials, and the inherent difficulty in obtaining remand when the highly deferential fact-based standard is applied, confusion prevails in how to catalog each discrete element. Given well-documented deficiencies in agency fact-finding, it is of paramount importance that asylum-seekers receive non-deferential review of their case denials as capaciously as the law permits. Yet, my study reveals that U.S. appellate courts often vacillate over how to treat each element, or over-classify as factual issues that are actually legal.The present state of affairs is unacceptably incongruous with the humanitarian ethos undergirding asylum and refugee law. Courts must not forget what is at stake each time they wrongly deny a meritorious asylum application. It is in light of this toll paid when courts err, that I advance an approach that could harmonize the courts of appeals’ disparate case law. I posit that application of the non-deferential, mixed-question standard of review—anchored in recent U.S. Supreme Court jurisprudence—offers a framework most likely to provide refugees with more searching review and thereby reduce the likelihood that bona fide claims are errantly rejected.
KJ