by Deirdre Dlugoleski*
Under what standard should courts of appeals review decisions of the Board of Immigration Appeals regarding supporting documentation in asylum cases? In this Contribution, Deirdre Dlugoleski (’19) explains the role of supporting documentation entered into evidence in asylum cases by the applicant, the government, and the Immigration Judge and the standard for admission. The Contribution argues that the scope of substantial evidence review of supporting documentation should be broad, and that courts play an important role in holding the BIA accountable for basing its decisions on reliable information.
It almost goes without saying that in the context of asylum law, a judge’s decision about whether or not to believe an applicant’s testimony can have life or death consequences. But the statutory requirements of the Refugee Act make supporting evidence, in addition to the applicant’s testimony, particularly important in most cases. Immigration Judges’ (IJs’) decisions on credibility and/or statutory eligibility for asylum often turn on a decision about which sources of evidence to believe – weighing, for example, a news report from the asylum seeker’s home country against a country condition report from the State Department that the Immigration and Naturalization Service (INS) officer has introduced. Although there are some guidelines for how the IJ and, on appeal, the Board of Immigration Appeals (BIA) must consider different sources of evidence in relation to each other, IJs and the BIA have wide discretion in these decisions, and courts are expected to defer unless the facts would compel a reasonable fact finder to conclude otherwise. The issue, at its core, is this: if an IJ reviews an asylum seeker’s supporting documents and decides they’re unreliable, what can the federal courts of appeals do about it?
This Contribution will argue that the scope of substantial evidence review of supporting documentation should be broad, and that courts play an important role in holding the BIA accountable for basing its decisions on reliable information. Because courts review the IJ’s decision as if it were the BIA’s when the BIA summarily affirms,2 the Contribution will for simplicity’s sake refer to judicial review of the BIA.
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Under the Refugee Act of 1980, asylum applicants must show they are unable or unwilling to return to their home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”3 Asylum applicants can meet this requirement in either or both of two ways. First, they can show that they have experienced persecution in the past based on one of the protected grounds (which creates a presumption that the applicant has a well-founded fear of future persecution).4 Second, they can provide evidence of the context in their home country that shows an objectively reasonable fear of future persecution, should they return.5 In either case, the REAL ID Act of 2005 requires applicants to show that the persecution was based on one of the protected grounds as the “central motive,”6 and that they could not avoid targeted persecution by moving to another part of the country – if they had the option of reasonable relocation, their eligibility for asylum in the United States is precluded.7 All told, the evidentiary burdens of the asylum process are high, and virtually necessitate that applicants find secondary sources of information about the conditions in their home country, such as news reports and human rights fact sheets.
The IJ’s role of assessing the credibility of this evidence is much greater than that of a judge in a normal civil trial because the asylum process involves a lower standard of proof. The applicant only has to provide “reliable, specific, objective supporting evidence,” which can be either direct or circumstantial.8 For asylum applicants, who are not infrequently fleeing for their lives, a lower standard of proof makes sense. Both courts and the BIA acknowledge that, in some cases, it is simply impossible for applicants to produce documentary evidence; applicants’ testimony in these circumstances can be adequate for eligibility in and of itself.9
But it’s somewhat harder to justify a similarly low standard of proof for the government, which faces none of the challenges asylum seekers have to overcome. In spite of a comparative surplus of resources with which to produce sound evidence, the standard of proof for the INS is as low as it is for the applicant – in asylum proceedings, the government isn’t bound by the Federal Rules of Evidence, and, because it is a civil case, none of the higher procedural protections that a criminal trial would entail apply.10 As long as the evidence doesn’t violate the applicant’s due process rights, it’s admissible against the applicant.11 And the INS gives broad leeway in the choice of sources to consult – the Basic Law Manual of the INS specifies that, in addition to State Department reports, the officer can draw on country profiles developed by the INS Resource Information Center, and “reports from Amnesty International and other reputable organizations, including academic institutions.”12 In practicality, the requirement of obtaining information from a “reputable” source is forgiving – the agency has used, for example, letters from consular staff and airport interviews in the past.13 Moreover, asylum applicants often have to overcome not only the evidence of the opposing counsel, but also of the IJ herself. Asylum trials are unique – the IJ both assesses and introduces documentary evidence (with the same broad discretion as the rest of the INS).14
In summary, either side can introduce any evidence that’s sufficiently probative and “fundamentally fair” – including hearsay evidence.15 But the parties’ respective capabilities of producing that evidence could generously be called asymmetrical. Essentially, the government, be it through the INS or the IJ, can introduce almost any evidence it wants into the record to refute an asylum seeker’s claims and send her back to a war zone.
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So what can federal courts of appeals do to hold the agency accountable for basing its decisions on reliable information?
Facially, it seems, not much. The same substantial evidence standard that applies to all of the BIA’s findings of fact applies to the question of documentary evidence as well, and the Supreme Court has made clear that the standard is highly deferential to the BIA.16 In INS v. Elias-Zacarias, the Court held that the reviewing court must affirm a determination of statutory ineligibility by the BIA unless the “evidence presented was so compelling that no reasonable fact finder could fail to find” eligibility for asylum.17 To reverse the BIA, “we must find that the evidence not only supports that conclusion, but compels it.”18 Moreover, specifically in relation to documentary evidence prepared by the U.S. government (for example, State Department reports and consular correspondence), courts have established a presumption of reliability – that is, that government employees can be presumed to accurately prepare their reports without bias.19 Granted, the agency’s reliance on these documents is cabined – the IJ must review all the evidence under the totality of the circumstances approach and cannot rely on “trivial inconsistencies” that don’t implicate the petitioner’s veracity or the heart of the claim for an adverse credibility determination or denial.20 In general, though, as long as the agency has adequately explained the basis for its decision on the record (i.e., enough explanation to be understandable and demonstrate the basis for its decision), courts are expected to defer.21
In practice, however, courts vary widely in how they apply the substantial evidence standard. The Ninth Circuit, for example, not only hears the most asylum cases out of all the circuits, but has earned a reputation for liberally construing what it means for the evidence to “compel” a finding of asylum eligibility – frequently putting them, as the government has claimed, “in conflict with other courts of appeals, which generally respect the BIA’s role as fact-finder.”22 But the Ninth Circuit isn’t alone in pushing the bounds of deference under substantial evidence review. Specifically in relation to documentary evidence, the Second, Third, Fourth, Sixth, and Eighth Circuits have all held that the IJ cannot rely on unauthenticated consular letters in making an adverse decision.23 In Balasubramanrim v. INS and Senathirajah v. INS, the Third Circuit provided standards for the BIA to consider in evaluating statements asylum applicants make during interviews with INS officers.24 In Zhen Nan Lin v. United States DOJ, the Second Circuit delineated standards for the BIA to follow in reviewing government reports, covering the identity of the investigators, the purpose of the investigation, and the methods of verification used.25
The widespread concern in the circuit courts with the reliability of evidence the government introduces should be enough to indicate that the scope of judicial review should be broad. But this question can also be resolved by looking at the substantial evidence standard itself.
While the standard functions as a ceiling on the court’s ability to review the agency, it also serves as a floor for the information the agency has to provide. The Third Circuit, among others, has clarified that the agency is required to support its findings with substantial evidence, as articulated by the Supreme Court in Elias-Zacarias.26 It reasonably follows, then, that the BIA can’t provide the court a substantial enough record to review if its reasoning depended, in turn, on slender evidence or sources of questionable reliability.27 This logic is consistent with SEC v. Chenery Corp., the Supreme Court precedent that requires the BIA (like all other executive agencies) to adequately explain its decisions on the record in the first place.28 Chenery sought to ensure that courts could “test” the agency’s administrative action through a meaningful review of the decision.29 With this in mind, the approach of the circuits mentioned above makes sense. When it comes to documentary evidence, the scope of judicial review under the substantial evidence standard should be broad.
A broad standard is especially appropriate because the BIA has thus far failed to accomplish the main goal that courts have cited as grounds for insulation from judicial review. Although the Supreme Court has repeatedly emphasized the need for uniformity in the context of immigration, IJs have varied wildly in their acceptance rates for asylum applications. A study undertaken from 2000 to the first few months of 2005, for example, showed the median rate of asylum denial at 65%, but individual denial rates ranging from 10% to 98%.30 And even if this weren’t the case, the BIA is bound to follow the circuit court reviewing it. For example, an IJ requesting country condition information from the State Department would be free, in the Fifth Circuit, to evaluate it however she pleased, but an IJ in the Second Circuit would have to review it in light of the factors in Zhen Nan Lin.31 Moreover, in spite of the presumption of reliability for government-produced documents, some circuits have expressed concerns with the executive branch being in charge of this information. The Second Circuit, for example, noted that because the executive branch (and, by extension, the State Department) is uniquely concerned with the United States’ relationship with other countries, it is likely that the State Department’s reports would be subject to the administration’s bias.32
There are also strong policy reasons for courts to hold the BIA accountable for providing enough substance to review. In 2002, then-Attorney General Ashcroft introduced new regulations to streamline the BIA, reducing the number of reviewing judges to one (from three) and expanding the circumstances in which the BIA could issue an affirmance without opinion (AWO) of the IJ’s decision. The 2002 reforms had disastrous implications for the quality of the BIA’s decisions. BIA appeals have not only taken up a disproportionately large share of the caseload in federal courts of appeals, but have also been subject to a higher reversal rate. In 2001, BIA decisions constituted only 3% of federal appeals cases. By 2004, this had jumped to fully 25% – 50% in the Second Circuit alone.33 The BIA’s reversal rate correspondingly spiked. By 2005, the Seventh Circuit overturned 40% of the opinions decided on the merits by the IJ (compared to a reversal rate for other civil cases that year of 18%).34 Circuit court judges have openly expressed their lack of confidence in the agency – most notably, Judge Posner, who wrote that the post-2002 administrative adjudication of immigration cases “has fallen below the minimum standards of legal justice.”35
The issue of accountability in verifying evidence is only going to grow in importance. With the rise of citizen journalism, community monitoring and fact-finding, and online platforms like YouTube and Facebook posting video footage of human rights violations, it’s not unreasonable to imagine that asylum applicants may soon bring these sources to bear in their testimony.36 The BIA may soon have to assess a much wider variety of sources than Congress ever imagined when it drafted the Refugee Act. Importantly, as these kinds of non-traditional sources of information have proliferated, verification methods have kept pace. Tools like the Electronic Discovery Reference Model (Duke University School of Law), the Verification Handbook (European Journalism Centre), and Amnesty International’s Citizen Evidence Lab are only some of the increasingly wide array of user-friendly resources that can verify video and social media content.37 This means that, theoretically, for much of this kind of information, the agency and the courts are equally well situated to verify it. Other courts have taken notice – most significantly, the International Criminal Court issued its first arrest warrant based entirely on social media posts in August 2017.38 It is critical that this opportunity for review not be foreclosed in the United States through stare decisis.
In the interest of providing a fair chance to asylum seekers, courts should hold the BIA accountable for giving adequate consideration to diverse sources of evidence, especially when, if truthful, it sheds light on the ground situation with more nuance than a country report could achieve. It’s difficult enough for most applicants to leave their home country with any supporting documentation at all, but without a broader judicial review, the BIA will continue to shut out deserving asylum seekers.
* Deirdre Dlugoleski is a 3L at New York University School of Law. This piece is a commentary on the 2018 problem at the UC Davis Asylum & Refugee National Moot Court Competition held in Davis, California. The issue in the problem dealt with whether an asylum applicant who had refused to join an armed group in open conflict with the government of his home country could be eligible on the grounds of persecution for political opinion, and what the scope of judicial review was of the IJ’s initial denial. The views expressed in this article do not necessarily represent the views of the author on this point of law; rather, this article is a distillation of one side of the argument that the team represented at the UC Davis Asylum & Refugee National Moot Court Competition.
2. Elzour v. Aschroft, 378 F.3d 1143, 1150 (10th Cir. 2004).
3. See 8 U.S.C. § 1101(a)(42)(A) (2012).
4. See Melgar de Torres v. Reno, 191 F.3d 307, 311 (2d Cir. 1999).
5. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999).
6. See 8 U.S.C. § 1158(b)(1)(B)(i) (2012); see also Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009).
7. See 8 U.S.C. § 1231(b)(3)(B)(ii) (2012).
8. Cordero-Trejo v. INS, 40 F.3d 482, 491 (1st Cir. 1994) (discussing evidence); see also Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990) (petitioner can provide either direct or circumstantial evidence of the persecutor’s motives), vacated and remanded without opinion by 502 U.S. 1025 (1992).
9. See Matter of Mogharrabi, 19 I. & N. Dec. 439, 445, 1987 BIA LEXIS 5.
10. See Zhen Nan Lin v. United States Dep’t of Justice, 459 F.3d 255, 268 (2d Cir. 2006) (“The government is not required to comply with either the requirements of the Federal Rules of Evidence or the heightened procedural protections of a criminal trial when seeking to have documentary evidence, such as a consular report, admitted in a removal proceeding. Evidence is admissible provided that it does not violate the alien’s right to due process of law.”).
11. See id.
12. United States Dep’t. of Justice, INS, The Basic Law Manual, U.S. Law and INS Refugee/ Asylum Adjudications 100 (1994).
13. See, e.g., Balasubramanrim v. INS, 143 F.3d 157, 162-63 (3d Cir. 1998); Senathirajah v. INS, 157 F.3d 210, 218-20 (3d Cir. 1998).
14. The IJ needs background information on the country in question not only to make a credibility decision about the applicant, but also to determine if asylum eligibility is precluded by the option of reasonable relocation within the country. See In re S-M-J, 21 I. & N. Dec. 722, 728, 1997 WL 80984 (BIA 1997); 8 U.S.C. § 1252(b) (1994); see also Matter of Dass, 20 I. & N. Dec. 120, 125, 1989 BIA LEXIS 27 (“Particularly when the basis of an asylum claim becomes less focused on specific events involving the respondent personally and instead is more directed to broad allegations regarding general conditions in the respondent’s country of origin, corroborative background evidence that establishes a plausible context for the persecution claim (or an explanation for the absence of such evidence) may well be essential. The more sweeping and general a claim, the clearer the need for an asylum applicant to introduce supporting evidence or to explain its absence.”) The BIA functions in the same manner – it has, on the record, noted that the UN’s Handbook on Procedures and Criteria for Determining Refugee Status recommends the same procedure. The Handbook states that although the burden of proof rests on the asylum applicant, “the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.” See In re S-M-J, 21 I. & N. at 729; see also Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees ¶ 196 (U.N.H.C.R., Jan. 1992).
15. See Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974) (denying remand based on the admission of statements the applicant made before fleeing the country, which made him unavailable as a witness).
16. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
17. See id. see also Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).
18. Id. at 481 n.1.
19. See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995). It’s important to note that this presumption does not apply to documents produced by a party other than the U.S. government or the subject of the report. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 n.9 (9th Cir. 2005) (citing Espinoza, 45 F.3d at 310).
20. See Yaogang Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011).
21. See, e.g., Kamara v. AG of the United States, 420 F.3d 202, 211 (3d Cir. 2005); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003); see also In re S-M-J, 21 I. & N. at 728.
22. See, e.g., INS v. Ventura, 123 U.S. 12, 16 (2002).
23. See Banat v. Holder, 557 F.3d 886, 892-93 (8th Cir. 2009); Anim v. Mukasey, 535 F.3d 243, 256-58 (4th Cir. 2008); Alexandrov v. Gonzales, 442 F.3d 395, 407 (6th Cir. 2006); Ezeagwuna v. Ashcroft, 325 F.3d 396, 405-08 (3d Cir. 2003).
24. See Balasubramanrim v. INS, 143 F.3d 157, 162-63 (3d Cir. 1998) (noting that records summarizing the asylum seeker’s statements in an interview is inherently less reliable than a verbatim account or transcript); see also Senathirajah v. INS, 157 F.3d 210, 218-20 (3d Cir. 1998); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004).
25. See Zhen Nan Lin v. United States Dep’t of Justice, 459 F.3d 255, 271 (2d Cir. 2006).
26. See Dia v. Ashcroft, 353 F.3d 228, 244-45 (3d Cir. 2003).
27. See, e.g., Hor v. Gonzales, 421 F.3d 497, 500 (7th Cir. 2005) (explaining that a censored press in an applicant’s home country could not reasonably be expected to report the harm suffered); Alexandrov v. Gonzales, 442 F.3d at 404 (vacating an IJ’s finding of frivolousness because of the flimsiness of supporting memoranda from the United States embassy in Sofia, Bulgaria reporting that documents submitted by the applicant were fraudulent.); cf. Borovikova v. United States DOJ, 435 F.3d 151, 157-58 (2d Cir. 2006) (holding that a sworn affidavit from the INS employee was sufficient to support the IJ’s adverse credibility finding). See also In re S-M-J, 21 I. & N. at 730 (explaining that the BIA expects “general corroborating evidence, from a reliable source, of persecution of persons in circumstances similar to an applicant”) (emphasis added).
28. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
29. See Dia, 353 F.3d at 241.
30. Lindsey R. Vaala, Bias on the Bench: Raising the Bar for U.S. Immigration Judges to Ensure Equality for Asylum Seekers, 49 William & Mary L. Rev. 1011, 1023 (2007), http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1135&context=wmlr.
31. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (“The BIA is required to follow court of appeals precedent within the geographical confines of the relevant circuit.” (citing Matter of Anselmo (Interim Decision), 20 I. & N. Dec. 25, 30-31, 1989 BIA LEXIS 11 (May 11, 1989))).
32. Tambadou v. Gonzales, 446 F.3d 298, 302-03 (2d Cir. 2006).
33. Vaala, supra note 30, at 1023.
35. See Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir. 2005).
36. See Deirdre Dlugoleski, ‘We are all journalists now’: 140 Journos and Turkey’s “counter-media” movement, Colum. Journalism Rev. (May 20, 2013), https://archives.cjr.org/behind_the_news/turkey_counter_media.php.
37. See Enrique Piracés, Collecting, preserving, and verifying online evidence of human rights violations, OpenGlobalRights (Jan. 30, 2018), https://www.openglobalrights.org/collecting-preserving-and-verifying-online-evidence-of-human-rights-violations/?lang=English.
38. Prosecutor v. Mahmoud Mustafa Musayf al-Werfalli, Case No. ICC-01/11-01/17, Public Warrant of Arrest, ¶ 11 (Aug. 15, 2017), https://www.icc-cpi.int/CourtRecords/CR2017_05031.PDF.