by Susan Levinson*
How can asylum applicants and their advocates safeguard their rights to a fair, impartial consideration of their claims when the Board of Immigration Appeals has virtually complete discretion in its decisions? In this Contribution, Susan Levinson (’19) argues 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. Ultimately, this Contribution recommends judicial, regulatory, and legislative reforms to protect legitimate asylum claims.
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.1 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 satisfaction”3 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
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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.
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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.
* 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,supra 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.