Contributions

All Hands on Deck: Preserving the Humanity of Asylum Through Meaningful Judicial Review

By Susan Levin­son*

Aban­don­ing her home­land to escape the jaws of per­se­cu­tion is just one hur­dle an asy­lum seek­er con­fronts in her quest for pro­tec­tion. If she tra­vers­es the Unit­ed States’ bor­ders, she faces addi­tion­al, some­times insur­mount­able, legal bar­ri­ers. First, she must demon­strate by “clear and con­vinc­ing evi­dence” to the Board of Immi­gra­tion Appeals’ (“BIA”) that she filed for asy­lum with­in one year of her arrival.This pre­lim­i­nary require­ment is dif­fi­cult to meet because, as the Sec­ond Cir­cuit has acknowl­edged, “a gen­uine refugee does not flee her native coun­try armed with affi­davits, expert wit­ness­es, and exten­sive doc­u­men­ta­tion.”2

If she fails to meet this bur­den, the asy­lum seek­er is forced to prove “to the sat­is­fac­tion3 of the BIA that she qual­i­fies for one of two excep­tions to the one-year time bar: “changed cir­cum­stances” which mate­ri­al­ly affect the applicant’s eli­gi­bil­i­ty for asy­lum, or “extra­or­di­nary cir­cum­stances” relat­ing to the applicant’s delay in fil­ing an appli­ca­tion.4 The arbiter of her fate in this time­li­ness deter­mi­na­tion is like­ly just a sin­gle board mem­ber.5

Yet there is lit­tle statu­to­ry, reg­u­la­to­ry, or judi­cial guid­ance as to pre­cise­ly what type of cir­cum­stances are “changed” or “extra­or­di­nary” enough to war­rant an excep­tion. While the Depart­ment of Jus­tice (“DOJ”) reg­u­la­tions pro­vide a non-exhaus­tive list of exam­ples, they are stat­ed in unhelp­ful­ly gen­er­al terms.6 More­over, the statu­to­ry scheme impos­es few (if any) con­straints on the BIA’s dis­cre­tion to make time­li­ness deter­mi­na­tions. And fed­er­al statutes, as well as long­stand­ing con­gres­sion­al pol­i­cy and Supreme Court jurispru­dence, effec­tive­ly insu­late time­li­ness deter­mi­na­tions from any mean­ing­ful review.7 Giv­en this seem­ing­ly unbound­ed agency dis­cre­tion, how can asy­lum appli­cants and their advo­cates safe­guard their rights to a fair, impar­tial con­sid­er­a­tion of their claims?

Ulti­mate­ly, this Con­tri­bu­tion will argue that the lack of pro­ce­dur­al safe­guards built into the asy­lum process, cou­pled with the Court’s gen­er­al­ly def­er­en­tial, hands-off approach in the immi­gra­tion con­text, deprive vul­ner­a­ble appli­cants of their right under due process to a fair, impar­tial con­sid­er­a­tion of their claims. The right to seek asy­lum from per­se­cu­tion is a “fun­da­men­tal and long-rec­og­nized human right” which the Unit­ed States has com­mit­ted to pro­tect­ing since it signed the Pro­to­col relat­ing to the Sta­tus of Refugees in 1967.8 Accord­ing­ly, mean­ing­ful judi­cial review, cou­pled with the repeal of the one-year dead­line, is essen­tial to ful­fill­ing the “human­i­tar­i­an pur­pose”9 of the asy­lum sys­tem and avoid­ing the “arbi­trary denial of pro­tec­tion to refugees.”10

* * * * *

When asked to deter­mine whether the BIA erred in reach­ing a par­tic­u­lar time­li­ness deter­mi­na­tion, courts are split as to whether Con­gress intend­ed the excep­tions to the one-year fil­ing rule to be nar­row­ly tai­lored to the statutes’ over­all pur­pos­es, or con­strued as a broad­er, more flex­i­ble grant based on equi­table con­sid­er­a­tions.11

On the for­mer end of the spec­trum is the notion that Con­gress carved out two excep­tions: first, specif­i­cal­ly “to excuse late appli­ca­tions when an alien pre­vi­ous­ly had a weak or nonex­is­tent case for asy­lum,”12 and, sec­ond, to deal sole­ly with altered cir­cum­stances that are direct­ly rel­e­vant to the applicant’s asy­lum eli­gi­bil­i­ty in the first instance.13 Courts that adopt this posi­tion con­strue the excep­tions nar­row­ly, giv­en the over­all pur­pose of the fil­ing dead­line is to pre­vent aliens from abus­ing the asy­lum sys­tem by using it as a means of “back­door immi­gra­tion” after over­stay­ing their visas or oth­er­wise fail­ing to obtain legal cit­i­zen­ship.14

An alter­nate view is that the excep­tions are broad con­ces­sions to pro­tect immi­grants who face gen­uine threats in their home coun­try, and might be returned to per­se­cu­tion sole­ly for a tech­ni­cal defi­cien­cy (name­ly, a lack of doc­u­men­tary evi­dence which would be unrea­son­able to expect in such cir­cum­stances).15 Pre­sum­ing such breadth, the Ninth Cir­cuit has held that appli­cants need not demon­strate a new con­flict for an appli­cant to show “changed cir­cum­stances” and can rely on an increased fear of ret­ri­bu­tion.16

More­over, cir­cuits dis­agree as to whether—and if so, to what extent—judicial review is avail­able for time­li­ness deter­mi­na­tions. Most cir­cuits agree that the deci­sion whether changed or extra­or­di­nary cir­cum­stances exist is a dis­cre­tionary fac­tu­al judg­ment that is express­ly reserved to the exec­u­tive branch and may only be over­turned if the BIA abused its dis­cre­tion.17 Only the Ninth Cir­cuit has extend­ed its juris­dic­tion to review time­li­ness deci­sions on the mer­its as “mixed ques­tions of law and fact” – but even then, only where the rel­e­vant under­ly­ing facts are undis­put­ed.18 In any event, the stan­dard of review is “sub­stan­tial evi­dence” – which is high­ly def­er­en­tial and requires the judi­cia­ry to uphold an agency’s find­ings of fact as long as “any rea­son­able adju­di­ca­tor” would be “com­pelled” to reach a con­trary con­clu­sion, on the basis of the record as a whole.19 For instance, courts may not reverse a BIA deter­mi­na­tion sim­ply because they dis­agree with its eval­u­a­tion of the facts.20

It is plau­si­ble that Con­gress intend­ed to insu­late dis­cre­tionary agency findings—particularly in the field of immi­gra­tion law—from judi­cial review as much as pos­si­ble. To this end, the Supreme Court has repeat­ed­ly empha­sized the acute impor­tance of judi­cial def­er­ence to the exec­u­tive branch in the immi­gra­tion con­text, “where offi­cials exer­cise espe­cial­ly sen­si­tive polit­i­cal func­tions that impli­cate ques­tions of for­eign rela­tions.”21 Still, courts are an inte­gral part of retain­ing the human­i­tar­i­an pulse of the asy­lum process. Judges have a vital role in ensur­ing an equi­table sys­tem. And a hands-off approach under­mines the BIA’s fun­da­men­tal pre­rog­a­tive to pro­vide a “fair and rea­soned review” of an applicant’s time­li­ness claims.22

Yet the meth­ods of admin­is­ter­ing the asy­lum sys­tem have made judi­cial review close to impos­si­ble in many cas­es. Asy­lum records are often scarce, leav­ing judges lit­tle to work with, in part due to the DOJ’s “sweep­ing” 2002 pro­ce­dur­al reforms.23 Pur­port­ing to elim­i­nate a back­log of cas­es, these reforms allow in most cas­es a sin­gle Board mem­ber to decide the mer­its of an appeal with­out issu­ing a writ­ten opin­ion.24 And yet unlike all oth­er admin­is­tra­tive agen­cies that employ sin­gle-mem­ber review, there is only one admin­is­tra­tive hear­ing in the immi­gra­tion con­text and no addi­tion­al lay­ers of admin­is­tra­tive process to safe­guard appli­cants’ rights.25 Because such broad dis­cre­tion is ulti­mate­ly con­cen­trat­ed in the hands of a sin­gle board mem­ber who is guid­ed only by a set of a vague stan­dards, mean­ing­ful judi­cial review to pro­tect vul­ner­a­ble asy­lum applicants—many of whom do not speak Eng­lish and are unfa­mil­iar with the com­plex­i­ties of immi­gra­tion law—seems all the more vital.

A 2003 study com­mis­sioned by the ABA reviewed the qual­i­ty of BIA deci­sion-mak­ing under the new stream­lin­ing reforms and allud­ed to the fact that these reforms had failed to achieve their pur­port­ed ends, “with pro­found con­se­quences for immi­grants and their fam­i­lies.”26 It stat­ed:

Before these changes were insti­tut­ed, 1 in 4 appeals were grant­ed: now only 1 in 10 are, with pro­found con­se­quences for immi­grants and their fam­i­lies. The num­ber of BIA deci­sions being appealed to the fed­er­al courts also has increased from 5% in 2001 to 15% in 2002. Rather than tru­ly elim­i­nat­ing the back­log of cas­es, the reforms appear to have instead shift­ed the bur­den to the fed­er­al courts.27

All in all, by fail­ing to require the BIA to artic­u­late a basis for a deci­sion, the 2002 stream­lin­ing reg­u­la­tions have cre­at­ed an incen­tive to rub­ber stamp immi­gra­tion judges’ deci­sions,28 sac­ri­fic­ing qual­i­ty and jus­tice for efficiency’s sake. In approx­i­mate­ly 46 per­cent of cas­es where the fil­ing dead­line is an issue, it is the only rea­son cit­ed by the BIA in jus­ti­fy­ing the denial of asy­lum.29 Time­li­ness deter­mi­na­tions should not be out­come-deter­mi­na­tive when refugees oth­er­wise deserve asy­lum pro­tec­tion.

* * * * *

Giv­en scant records devoid of analy­sis and the fed­er­al government’s ten­den­cy to rel­e­gate immi­gra­tion mat­ters to the polit­i­cal branch­es, judi­cial review has essen­tial­ly become, at least in the con­text of time­li­ness domain, a legal fic­tion. This Con­tri­bu­tion will pro­pose that the judi­cia­ry is posi­tioned to take a more active role in safe­guard­ing immi­grant rights by exer­cis­ing, more rig­or­ous­ly, its pow­ers of judi­cial review. Though courts have deter­mined that the scope of their juris­dic­tion is nar­row, they have the abil­i­ty to broad­en their inter­pre­ta­tion of Sec­tion 1158(a)(3) of the INA and demand a search­ing inquiry from the BIA into the par­tic­u­lar­i­ties of each asy­lum seeker’s case.

Addi­tion­al­ly, open­ing more chan­nels for judi­cial review requires, at a min­i­mum, that Con­gress broad­en the scope of judi­cial review avail­able under Sec­tion 1158(a)(3) of the INA.To avoid dock­et con­ges­tion in fed­er­al courts, Con­gress could per­mit judi­cial review of denied asy­lum appli­ca­tions in a lim­it­ed, clear­ly-defined class of cas­es.30 For instance, judi­cial review could be dis­cre­tionary and “reserved for mixed ques­tions of law and fact that have a dis­pro­por­tion­ate impact on an applicant’s suc­cess on the mer­its.”31

Anoth­er (though admit­ted­ly less fea­si­ble) solu­tion could be to over­turn (or over­rule by statute) I.N.S. v. Elias-Zacarias, low­er­ing the stan­dard of judi­cial review to some­thing less than “clear­ly erro­neous” in order to encour­age more rig­or­ous pro­ce­dures upstream.

Final­ly, Con­gress must repeal or revise the one-year dead­line to ensure that refugees are not denied asy­lum pro­tec­tion sole­ly due to a tech­ni­cal­i­ty.32 The bar could be replaced with a “rea­son­able peri­od” bar or it could be mod­i­fied to apply only on a dis­cre­tionary basis.33 As the leg­isla­tive process is often slow and cum­ber­some, courts should in the mean­time assess each case on an indi­vid­ual basis with an eye towards Congress’s intent in enact­ing the dead­line in the first instance: to deter fraud­u­lent claims, not to pre­vent valid asy­lum cas­es from mov­ing for­ward. Schol­ars now wide­ly agree that the one-year bar frus­trates leg­isla­tive intent and has no impact on fraud­u­lent claims.34

To sup­ple­ment this, the DOJ or the DHS could bulk up the reg­u­la­tions that gov­ern excep­tions to the one-year dead­line and include addi­tion­al cir­cum­stances that could con­sti­tute statu­to­ry excep­tions in light of “evolv­ing expe­ri­ence.”35 To account for dis­crep­an­cies in knowl­edge of immi­gra­tion law and resources among appli­cants, they should “give par­tic­u­lar con­sid­er­a­tion to whether indi­vid­u­als who were rea­son­ably unaware of poten­tial eli­gi­bil­i­ty for asy­lum pro­tec­tion can demon­strate an excep­tion to the dead­line.”36 These exec­u­tive agen­cies could addi­tion­al­ly cre­ate addi­tion­al train­ing mate­ri­als and guid­ance, issue prece­den­tial deci­sions, and mon­i­tor adju­di­ca­tion.37

Ulti­mate­ly, courts must rea­son with an eye towards the pur­pose of our asy­lum pro­tec­tions in the first instance: to cre­ate a safe haven for those with legit­i­mate claims of per­se­cu­tion, to achieve lib­er­ty and jus­tice for all.

Notes:

*Susan Levin­son 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.

1. 8 U.S.C. § 1158(a)(2)(B) (empha­sis added).

2. Abankwah v. INS, 185 F.3d 18, 26 (2d Cir. 1999).

3. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4.

4. 8 U.S.C. § 1158(a)(2)(D).

5. ABA Com­mis­sion on Immi­gra­tion Pol­i­cy, Prac­tice & Pro Bono, Seek­ing Mean­ing­ful Review: Find­ings and Rec­om­men­da­tions in Response to Dorsey & Whit­ney Study of Board of Immi­gra­tion Appeals Pro­ce­dur­al Reforms2 (2003).

6. For instance, “changed cir­cum­stances” may include “[c]hanges in con­di­tions in the applicant’s coun­try of nation­al­i­ty” and “changes in applic­a­ble U.S. law and activ­i­ties the appli­cant becomes involved in out­side the coun­try of feared per­se­cu­tion that place the appli­cant at risk.” 8 C.F.R. § 208.4(a)(4)(i). Mean­while, “extra­or­di­nary cir­cum­stances” refers to events or fac­tors “direct­ly relat­ed to the fail­ure to meet the one-year dead­line.” 8 C.F.R. § 208.4(a)(5)(vi). These fac­tors include: seri­ous ill­ness or men­tal or phys­i­cal dis­abil­i­ty dur­ing the one-year peri­od after arrival; legal dis­abil­i­ty dur­ing the one-year peri­od after arrival; inef­fec­tive assis­tance of coun­sel; whether the appli­cant main­tained a law­ful or pro­tect­ed immi­grant or non-immi­grant sta­tus; and the death, seri­ous ill­ness or inca­pac­i­ty of either a mem­ber of the applicant’s imme­di­ate fam­i­ly or his or her legal rep­re­sen­ta­tive. 8 C.F.R. § 208.4(a)(5)(iii).

7. Sec­tion 1158(a)(3) of the INA bars review of deter­mi­na­tions relat­ed to the one-year time bar for both fil­ing an asy­lum claim and grant­i­ng or deny­ing the excep­tion.See Dhru­ba Prad­han v. Hold­er, 352 F. App’x 205, 206 (9th Cir. 2009); see also Kasim v. Attor­ney Gen. of U.S., 285 F. App’x 919, 923 (3d Cir. 2008) (court lacked juris­dic­tion to address denial of alien’s claim for asy­lum because the BIA had con­clud­ed that alien’s peti­tion was not time­ly); Vira­cacha v. Mukasey, 518 F.3d 511, 512 (7th Cir. 2008) (not­ing “the deci­sion whether a change has occurred is com­mit­ted to agency dis­cre­tion”). Courts have con­ced­ed that time­li­ness deter­mi­na­tions are with­in the fac­tu­al realm, and thus exempt from the nar­row juris­dic­tion­al grant of the Real ID Act, which extends only to con­sti­tu­tion­al ques­tions and ques­tions of law. Real ID Act of 2005, § 106 (a)(1)(ii), amend­ing 8 U.S.C. § 1252(a)(2). Pub. L. No. 109–13, 1 19 Stat. 231, 310–11 (2005).

8. Human Rights First et. al., The One-Year Asy­lum Dead­line and the BIA: No Pro­tec­tion, No Process(2010), https://www.humanrightsfirst.org/wp-content/uploads/pdf/1YD-report-FULL.pdf.

9. Roy Xiao, Refuge from Time: How the One-Year Fil­ing Dead­line Unfair­ly Frus­trates Valid Asy­lum Claims, 95 N.C. L. Rev. 523, 551 (2017).

10. Human Rights First et al., supranote 9.

11. See, e.g., Ramadan v. Gon­za­les, 479 F.3d 646 (9th Cir. 2007)(finding that judi­cial review is avail­able to time­li­ness deter­mi­na­tions as a mixed ques­tion of law and fact under the REAL ID act); cf.Gomis v. Hold­er, 571 F.3d 353 (4th Cir. 2009) (find­ing that fed­er­al courts lack juris­dic­tion to review time­li­ness deter­mi­na­tions under the REAL ID Act).

12. Fakhry v. Mukasey, 524 F.3d 1057, 1063 (9th Cir. 2008).

13. Vaho­ra v. Hold­er, 641 F.3d 1038, 1045 (9th Cir. 2011) (empha­sis in the orig­i­nal).

14. Joaquin-Por­ras v. Gon­za­les, 435 F.3d 172, 180–81 (2d Cir. 2006) (quot­ing H.R. Rep. No. 104–469(I), at 107 (1996)).

15. The one-year fil­ing bar gen­er­at­ed a con­cern, even amongst its most fer­vent pro­po­nents, that appli­cants with legit­i­mate asy­lum claims would be returned to per­se­cu­tion for only a “tech­ni­cal defi­cien­cy”: the applicant’s inabil­i­ty to ver­i­fy that she applied for asy­lum with­in one year of her arrival. Vaho­ra, 641 F.3d at 1045. This con­cern was artic­u­lat­ed by Sen­a­tor Orin Hatch in the con­gres­sion­al record, who remarked that these excep­tions would like­ly cap­ture appli­cants who delayed their fil­ing for a “good cause” – which is the broad­er lan­guage used in the orig­i­nal ver­sion of the bill. Id.

16. Id.

17. SeeC.F.R. § 208.4(a)(2)(i)(B) (An alien must prove the exis­tence of these excep­tions “to the sat­is­fac­tion of the asy­lum offi­cer, the immi­gra­tion judge, or the [rel­e­vant] Board.”)

18. Virid­i­ana v. Hold­er, 646 F.3d 1230, 1231 (9th Cir. 2011).

19. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

20. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003).

21. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 418 (1999) (quot­ing I.N.S. v. Abudu, 485 U.S. at 110); see also Am. Civ­il Lib­er­ties Union of N.J., Inc. v. Cty. of Hud­son, 352 N.J. Super. 44, 55 (Super. Ct. App. Div. 2002) (“Because poli­cies toward aliens are inter­wo­ven with the con­duct of for­eign rela­tions, the war pow­er, and the main­te­nance of a repub­li­can form of gov­ern­ment, such mat­ters are entrust­ed to the polit­i­cal branch­es of gov­ern­ment and are large­ly immune from judi­cial inquiry or inter­fer­ence.”).

22. Id. at 6. Fur­ther, since the 2002 reforms, “the pro­por­tion of ‘affir­mances with­out opin­ion’ decid­ed by a sin­gle Board mem­ber has increased from 10% to over 50%. Coin­cid­ing with this shift, deci­sions in favor of the appel­lant dropped from 1 in 4 to 1 in 10. These results indi­cate that the pro­ce­dur­al reforms may also pro­duce sub­stan­tive changes in the qual­i­ty and reli­a­bil­i­ty of the deci­sions being made.” Id. at 2.

23. ABA Com­mis­sion on Immi­gra­tion Pol­i­cy, Prac­tice & Pro Bono, Seek­ing Mean­ing­ful Review: Find­ings and Rec­om­men­da­tions in Response to Dorsey & Whit­ney Study of Board of Immi­gra­tion Appeals Pro­ce­dur­al Reforms6 (2003).

24. Id. at 1.

25. Id. at 3.

26. Id. at 1.The study went on to rec­om­mend that the Reforms be elim­i­nat­ed or at least “mod­i­fied to ensure that quan­ti­ty is not val­ued over qual­i­ty.” Id.

27. Id.

28. Id. at 3. The study then rec­om­mend­ed that the Reforms be elim­i­nat­ed or at least “mod­i­fied to ensure that quan­ti­ty is not val­ued over qual­i­ty.” Id.at 1.

29. Human Rights First et al., supra note 9.

30. Xiao,note 10, at 542. “To mit­i­gate the poten­tial impacts on fed­er­al dock­ets, Con­gress should lim­it review to very spe­cif­ic instances, like deter­min­ing whether or not any of the statu­to­ry excep­tions applied. The pow­er could be reserved for mixed ques­tions of law and fact that have a dis­pro­por­tion­ate impact on an applicant’s suc­cess on the mer­its. The mag­ni­tude of appeals could be fur­ther tem­pered by mak­ing review dis­cre­tionary.” Id. at 546. 

31. Id.

32. Human Rights First et al., supra note 9.

33. Karen Musa­lo & Mar­celle Rice, The Imple­men­ta­tion of the One-Year Bar to Asy­lum, 31 Hast­ings Int’l & Comp. L. Rev.693, 723 (2008). Avail­able at: http://repository.uchastings.edu/faculty_scholarship/568. These solu­tions “would avoid arbi­trary results that ensue where, for exam­ple, an appli­cant applies 366 days after arrival.” Id. at 723, n. 95.

34. Id. at 722. “[T]he one-year bar has harsh human­i­tar­i­an con­se­quences. The Gam­bian woman with with­hold­ing will nev­er reunite with her chil­dren or save them from their abu­sive father. The Alban­ian ado­les­cent who escaped from sex­u­al slav­ery, entered as an unac­com­pa­nied minor and doc­u­ment­ed her PTSD con­di­tion was nonethe­less denied relief. The Mex­i­can moth­er and daugh­ter were denied asy­lum because they applied for asy­lum five months after police helped them escape from impris­on­ment by their abu­sive fam­i­ly mem­ber. These and count­less oth­er sim­i­lar cas­es shock the con­science and indi­cate that the time has come for the over­sight and reassess­ment that Sen­a­tor Hatch and oth­er leg­is­la­tors con­tem­plat­ed when they enact­ed the one-year bar.” Id.at 723–24.          

35. Human Rights First et al., supra note 9.

36. Id.

37. Id.