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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. THE BACKGROUND A. A Summary of the Asylum Process B. The Asylum Study--Disparities in Asylum Adjudication II. WHY CONSISTENCY MATTERS III. THE DETERMINANTS OF CONSISTENCY A. Numbers 1. The number of decisional units 2. The size of the decisional units 3. The number of cases B. Attributes of Adjudicators 1. Appointment patterns 2. Training and policy guidance C. The Roles of the Adjudicators 1. Decisional independence 2. Deference and scope of review 3. Reasoned opinions and stare decisis D. Resources 1. Fiscal resources 2. Procedural resources E. The Nature of the Subject Matter 1. Degree of specialization 2. Complexity 3. Dynamism 4. Emotional or ideological content 5. Spectrum of choice IV. THE POLICY OPTIONS A. Worthwhile but Marginal Improvements 1. More detailed statutes, regulations, and informal instruments 2. More adjudicators 3. Larger decisional units 4. Strengthening the support staff 5. Providing counsel 6. Quality control in hiring 7. Professional development 8. Dissemination of asylum approval rates 9. Expanding the BIA 's scope of review 10. Reasoned and binding opinions B. Possible Enhancements to Consistency but Bad Ideas Nonetheless 1. Demographic hiring criteria 2. More frequent agency head review of BIA decisions 3. More restrictions on judicial review 4. Transferring judicial review to a specialized immigration court C. Potentially Dramatic Gains in Consistency, but Especially Bad Ideas 1. Quotas or other direct controls on outcomes 2. Punishing wayward adjudicators CONCLUSION
INTRODUCTION
This Article is about consistency in adjudication. With the United States asylum system as a backdrop, I explore why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying.
This Article is also about the United States asylum adjudication system. Asylum challenges the national conscience in distinctive ways. It generates hard questions about our moral responsibilities to fellow humans in distress; the recognition of human rights and our willingness to give them practical effect; the extent of our obligations to those who are not U.S. citizens; U.S. legal and moral obligations to the international community; the roles of state sovereignty and borders; foreign relations; allocation of finite national resources; and racial, religious, linguistic, and ideological pluralism.
Into this emotional and political fray, one often better known for polemic than for hard data, recently ventured Professors Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag. Through painstaking and thoughtful empirical research, they collected massive data from several different federal bureaucracies and shed important light on the results asylum adjudicators reach. Their impressive study, Refugee Roulette: Disparities in Asylum Adjudication (Asylum Study), (1) serves two crucial functions. Most relevant to the present Article is the first function, which is to highlight the striking disparities in asylum approval rates from one adjudicator to another at various stages of the process. (2) As the authors convincingly demonstrate, asylum outcomes often depend as much on the luck of the draw as on the merits of the case. (3) The Asylum Study also identifies some of the external variables that correlate with positive or negative outcomes in asylum cases. Those variables will be considered here as well, but only insofar as they either help flesh out the forces that drive consistency levels or suggest normative policy responses to the disparities in asylum outcomes.
The present Article similarly has two aims. The first, which is asylum-specific, addresses the "so what" question. What are the normative implications of the findings reached in the Asylum Study? What problems have the sharp disparities in asylum approval rates caused, and what, if anything, should we do about them? To answer those questions, the Article sets a second objective--to examine, more generically, the role that consistency should play in any justice system. What, exactly, is the relationship between consistency and justice? What forces influence consistency? What instruments might enhance it? And what trade-offs do those instruments present?
Many readers will find the patterns revealed by the Asylum Study shocking. One's visceral reaction might be that we need to "rein in" the adjudicators. Perhaps, one might think, the answers lie in terminating or demoting the outliers, or subjecting all adjudicators to performance evaluations, or making vastly increased use of agency head review of adjudicators' decisions, or even imposing mandatory minimum and maximum approval rates.
I argue here that these impulses should be resisted. There are times when we simply have to learn to live with unequal justice because the alternatives are worse. Disparities in asylum approval rates just might be one of those instances. As long as adjudicators are flesh-and-blood human beings, as long as the subject matter is ideologically and emotionally volatile, and as long as limits to the human imagination constrain the capacity of legislatures to prescribe specific results for every conceivable fact situation, there will be large disparities in adjudicative outcomes and justice will depend, in substantial part, on the luck of the draw.
This is not to suggest that inconsistent outcomes are harmless; they impede justice in several ways that will be explored below. Nor is this a call for complacency; there are several ways to mitigate the problem at the margins, and they too will be considered in this Article. But more dramatic inroads into adjudicative inconsistency bear costs that, in my view, are socially unacceptable. The major cost is the erosion of decisional independence, but there are others as well.
Part I of this Article provides basic background information on the asylum adjudication process and then summarizes the relevant empirical findings of the Asylum Study. Part II examines why consistency matters. It considers the costs of unequal justice. Part III identifies the determinants of consistency. These are the forces that influence the degree of inconsistency one might expect from a given adjudicative process. Part IV then surveys the policy options--both those that would enhance consistency at the margins and those that might well bring more dramatic uniformity gains but that would be bad ideas nonetheless.
I. THE BACKGROUND
A. A Summary of the Asylum Process
With some exceptions, any person who is "physically present" in the United States--whether at a port of entry or in the interior--may apply for asylum. (4) To succeed, the person must meet the statutory definition of "refugee," must not fall within any of the statutory disqualifications, and must receive the favorable exercise of discretion. (5) The "refugee" definition, in turn, requires "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (6) Upon receiving asylum, the person may remain in the United States, may work, may bring in certain qualifying family members, and may eventually acquire permanent residence. (7)
There is an elaborate administrative machinery for the filing and adjudication of asylum claims. The Asylum Study provides a succinct summary; (8) here it is enough to highlight a few points essential to understanding the remainder of this Article.
The Department of Homeland Security (DHS) may initiate "removal proceedings" to determine whether a noncitizen has the right to remain in the United States, rather than be turned back at a port of entry or expelled from the interior. (9) In a removal proceeding an officer known as an "immigration judge" presides over an evidentiary hearing. (10) There are more than two hundred "immigration judges" sitting in fifty-four "immigration courts" dispersed throughout the United States. (11) The immigration judges are part of an agency called the Executive Office for Immigration Review (EOIR) in the Department of Justice. (12)
A person against whom removal proceedings have been instituted may file an asylum application with the immigration judge as a defense. (13) Either the applicant or the government may appeal the immigration judge's removal decision (which will include the asylum determination) to the Board of Immigration Appeals (BIA). (14) The BIA, a nonstatutory body created by the Attorney General, (15) is now also part of EOIR. (16) It currently has fifteen members. (17) The Attorney General may review BIA decisions (18) but in practice does so only sparingly. (19) Generally in asylum cases, a noncitizen can obtain judicial review of either the BIA or the Attorney General decision by filing a petition for review in the U.S. court of appeals for the circuit in which the removal hearing was held. (20)
There are two major exceptions to the availability of judicial review in asylum cases. Certain individuals who apply for asylum at U.S. ports of entry (and a few others) are subject to a special abbreviated procedure that bars judicial review. (21) Moreover, to file an asylum claim, one must prove by "clear and convincing evidence" that the application was filed within one year of arrival, that there were "changed circumstances which materially affect the applicant's eligibility for asylum," or that the delay can be explained by other "extraordinary circumstances." (22) Asylum denials based on failure to make one of those showings are not subject to judicial review. (23)
A person who is not in removal proceedings may take the initiative and file an affirmative asylum application with the appropriate regional asylum office of United States Citizenship and Immigration Services (USCIS), a bureau of DHS. (24) The asylum officers are specially trained in international human rights law, asylum law, and country conditions. (25) They currently number 141 (26) and are based in eight regional offices. (27) After a nonadversarial interview, (28) the asylum officer either grants the application or (assuming the person is otherwise inadmissible or deportable) refers the asylum application to an immigration judge. (29) In the latter event, the immigration judge decides the asylum application (30) and the EOIR procedures described earlier kick in.
Together, these various actors handle a large and rapidly growing caseload. The authors of the Asylum Study found that in the year 2005 asylum officers decided 28,305 asylum cases on the merits, immigration judges 30,903, the BIA 15,646, and the courts of appeals 2163, for an approximate total of 77,000 asylum decisions by all the adjudicators combined. (31)
In 2002 and 2003, Attorney General John Ashcroft fundamentally altered the character of this administrative structure. The changes extend to removal proceedings generally and have profoundly affected asylum adjudication in particular.
The most visible changes were those designed to "streamline" the BIA in order to reduce its large backlog of cases. (32) Until 2002, the vast majority of the Board's decisions were the product of three-member panels and were accompanied by reasoned written opinions. (33) The new regulation made single member "affirmance[s] without opinion" (AWOs) the norm, prohibiting three-member panels and reasoned written opinions except in certain designated categories of cases. (34)
During roughly the same time period, despite the stated priority on backlog reduction, the Attorney General announced his intention to reduce the membership of the BIA from twenty-three to eleven. (35) Approximately one year after this announcement, the Attorney General reassigned five BIA members to either nonadjudicative or lower adjudicative positions within the Justice Department; vacancies and voluntary resignations accounted for the rest of the reduction. (36) An empirical study has since demonstrated that several particular BIA members became markedly less sympathetic to noncitizens during the one-year interval between the Attorney General's original announcement and his decision as to which members would be reassigned. (37) The same study showed that all five of the BIA members who were ultimately reassigned were among the few whose voting records had been most favorable to noncitizens. (38) Although the ideology-based purge has obvious implications for the decisional independence of the BIA, the tone and the broad language of the new regulations has left the future decisional independence of the immigration judges in similar doubt. (39)
The quantifiable consequences of these various changes have been dramatic, though it is impossible to tell which results are attributable to the streamlining and which can be traced to the loss of independence. Not surprisingly, the Asylum Study documented a very large drop, immediately following the changes, in the BIA's use of three-member panels. (40) An earlier study had found that after 2002 the percentage of removal cases in which the BIA found error and therefore remanded to the immigration judges also dropped substantially. (41) The Asylum Study found that the same is true for the asylum cases specifically; from 2001 to 2005, the overall rate at which the BIA remanded cases to the immigration judges fell from thirty-seven percent to eleven percent. (42) And the number of BIA decisions for which judicial review was sought surged astronomically after 2002. (43)
Numbers aside, the courts of appeals' recent comments on the quality of immigration judge and BIA opinions and the professional behavior of a few particular immigration judges have been prolific and scathing. (44) As the criticisms mounted, then-Attorney General Alberto Gonzales assembled a team to review the immigration courts; at the same time, he sent a public memorandum to the immigration judges and the BIA communicating his expectations concerning both quality and respect. (45) He would not release his review team's findings, but he did announce a series of steps to enhance the professionalism of the adjudicators. (46) One of those measures was the issuance of Codes of Conduct for immigration judges and BIA members. (47) While otherwise generally positive, each Code further erodes the adjudicators' decisional independence by expressly authorizing their ex parte communications with Justice Department personnel concerning pending cases. (48)
B. The Asylum Study--Disparities in Asylum Adjudication
The Asylum Study examined some 60,000 asylum decisions rendered by the four major sets of adjudicators--asylum officers, immigration judges, members of the BIA, and judges of the United States courts of appeals. (49) Among other things, the Asylum Study exposed "disconcerting variability" in asylum approval rates from one adjudicator to the next, in at least three of the four major layers of the asylum process. (50) The authors were careful to control for confounding variables. Thus, as will be shown presently, they controlled for country of origin on the reasonable assumption that the mix of cases by country of origin is likely to vary considerably from one immigration court, asylum office or court of appeals to another. They also excluded all cases in which the asylum applicants were detained pending the proceeding, because the applicants' lack of access to counsel would be expected to lower their chances of success and because some immigration judges handle all, or almost all, detained cases. (51) For similar reasons, the authors excluded purely "defensive" cases in which the asylum claims were raised for the first time during removal hearings; those applicants were disproportionately likely to be detained. (52)
At the asylum officer level, the study identified fifteen "asylee-producing countries," which it defined as countries that in fiscal year 2004 had at least five hundred asylum claims before either asylum officers or immigration judges and had nationwide approval rates of at least thirty percent. (53) For each of those countries the authors found large differences in overall asylum approval rates among the eight regional asylum offices. (54) When the fifteen asylee-producing countries are combined, variability of a similar magnitude is observed. (55) The authors also detected great disparities in the asylum approval rates of individual asylum officers within some of the regional offices. Since there is no reason to assume that asylum officers within the same office would have appreciably different mixes of cases by nationality, and since similar results were observed in some of the regions when the authors compared only one nationality at a time, the inconsistencies are significant. (56)
Similarly, the asylum approval rates for particular countries of nationality vary greatly from one immigration court to another. Within most of the immigration courts, where there is no reason to expect substantially different mixes of cases by country of origin from one immigration judge to another, there were also great disparities in asylum approval rates among the various immigration judges. The latter differences became especially dramatic when differentiated by country of nationality. (57) The data on immigration judges also reveals some of the variables that appear to influence asylum grant rates. (58)
At the court of appeals level, the Asylum Study found stunning variability from one circuit to another. Overall remand rates ranged from under two percent in the Fourth Circuit--generally regarded as the most conservative circuit--to over thirty-six percent in the Seventh Circuit. (59) That differential lessens, but only slightly, when the comparison is confined to cases from the asylee-producing countries. (60) In that control group, the three southern circuits--the Fourth, Fifth, and Eleventh--continue to display far lower remand rates than the other circuits. (61) When the control group is further limited to asylum cases brought by nationals of China--the largest producer of asylum claims--the range of remand rates was similarly broad, from zero percent in the Fourth Circuit to more than twenty percent in six circuits. (62) The Asylum Study examined individual judges' voting records in only two circuits, finding large judge-to-judge disparities in remand rates within the Sixth Circuit but only small differences within the Third Circuit. (63) In the Sixth Circuit, judges appointed by Democratic Presidents had significantly higher remand rates than those appointed by Republican Presidents; in the Third Circuit, in contrast, there was no correlation between remand rates and the party of the appointing President. (64)
II. WHY CONSISTENCY MATTERS
Now, what goes into the definition of justice? ... We try to be fair. And fair to me is consistency. (65) A foolish consistency is the hobgoblin of little minds.... (66)
Which is it? On the scale from innocuous to intolerable, where does inconsistency rank? The answer, of course, depends on the context, and the present context encompasses case-by-case adjudication generally and the asylum process specifically. The concern here is with inconsistent outcomes, not with inconsistent procedures or inconsistent adjudicator credentials (except to the extent they in turn generate inconsistent outcomes). (67) Nor is this Article confined to the specific problem of systematic discrimination against particular groups, such as those defined by race, religion, gender, country of nationality, or the like. My concern here is more mundane---disparate outcomes, whether conscious or unconscious, for individuals who are similarly situated in all legally relevant respects.
These inconsistencies are of several types. As the Asylum Study dramatically illustrates, outcomes might vary systematically from one court or tribunal to another, or from one adjudicator or panel to another within the same court or tribunal. Even the body of decisions by a single adjudicator might be internally inconsistent. An adjudicator might forget having reached a prior decision, erroneously find a prior case distinguishable, change his or her view, or even decide the two cases differently for reasons that the adjudicator knows to be improper. (68)
Inconsistencies also vary by type of issue. The issue might be one of law, one of fact, one of discretion, or one with a mix of ingredients. An interpretation of law might be one of "pure" law--either a broad question like the meaning of the statutory term "particular social group" or a narrower question such as whether female genital mutilation is "persecution" or whether the husbands of women who have been forcibly sterilized qualify under the "refugee" definition. (69) Or the decision might require the application of a broad term to specific facts, such as whether a given instance of physical abuse was severe enough to be "persecution." (70) Similarly, a finding of fact might be one of historic fact, requiring the adjudicator to determine what actually happened. It might be one of predictive fact, such as how likely it is that the feared persecution will occur in the future. Or it might be an assessment of the asylum seeker's credibility, including whether the person is truthful, reliable, and perceptive. Even discretionary judgments can vary from open-ended determinations of whether an individual who is statutorily eligible for asylum should receive it, (71) to a more structured discretionary decision, such as whether the hardship a person will experience can be described as "exceptional and extremely unusual." (72)
Precisely how harmful inconsistencies are might well depend on which of these types they are. The degree of harm might depend also on whether the inconsistencies emerge during the initial stages or the appellate stages of the adjudicative process. These variables will be introduced below whenever they are thought relevant.
Two last preliminary observations: balance is not the same as, and does not promote, consistency. At best, balance prevents asymmetric inconsistency. An immigration judge corps that comprises one hundred anti-immigrant zealots and one hundred pro-immigrant zealots would be "balanced" in some sense, but in such a corps the outcomes would be more likely to diverge, not less. Second, inconsistency is a two-edged sword. It can result in an outcome favorable to the asylum seeker when another adjudicator would have reached a different result, or vice-versa. Consequently, neither one's general ideology nor one's specific preferences on immigration or asylum should drive one's degree of tolerance for inconsistent outcomes.
With those introductory caveats, it is possible to examine the reasons that we value consistency in adjudication. At first blush, consistency might seem like a good proxy for accuracy. If, for example, sixty percent of a group of decisions go one way and the remaining forty percent the opposite way, and the facts are similar enough that the two sets of outcomes cannot be reconciled, it might initially appear that at least forty percent of the decisions--and perhaps sixty percent--were wrong. For at least two reasons, that assumption should be resisted.
First, some issues do indeed lend themselves to what our legal system regards as uniquely correct results. A particular question of fact might present a dichotomy, and the appellate authority might rule that the evidence did not permit the initial decision maker's finding. In such a case the finding is "wrong" as a matter of law. Similarly, even if the dichotomous issue was discretionary, an appellate authority might conclude that the initial decision maker's determination was an abuse of discretion. But even if we assume the existence of issues that lend themselves to only one legally correct answer, the assumption that consistency is congruent with accuracy breaks down with respect to the many other issues on which the law recognizes that reasonable minds might disagree. In those cases, the outcomes simply cannot be classified as "right" or "wrong."
Moreover, even in cases where there is truly only one legally correct answer, consistency does not necessarily indicate a low error rate. One hundred percent consistency might mean that all the decisions were right, but it could also mean that all the decisions were wrong.
I concede, however, that rational human choice is still more likely than random selection to produce correct outcomes. On that assumption, a high degree of consensus makes the hypothesis of everyone being right more likely than the hypothesis of everyone being wrong. There is some reason, therefore, to assume that consistency correlates positively with accuracy. Still, correlation is not causation. Even if consistency provides some evidence of accuracy, it does not follow that consistency promotes accuracy. Unless there is some other basis for assuming that consistency generates accuracy, then reasons to promote consistency--or, more realistically, reasons to sacrifice other interests for the sake of attaining consistency--remain to be identified.
As it turns out, reasons to strive for consistency are plentiful. Probably the most intuitive is the principle of equal treatment--the notion that inconsistent outcomes are substantively unfair. When two people are situated identically in all legally relevant respects, the law should treat them the same. To the extent reasonably avoidable, the outcomes should not hinge on the biases of whichever adjudicator the individual had the good or bad luck to draw. (73)
Certainty, and the predictability that it brings, are commonly cited as a second set of reasons to strive for consistent adjudication. (74) Conflicting results breed uncertainty in two ways. They do so directly, by preventing the parties from predicting how their dispute is likely to be resolved. These conflicts seem especially significant when the issues are legal, since by definition legal rules are norms of general applicability. Yet, uncertainty can also result from conflicting conclusions on questions of fact or discretion if the issues are recurring. Even when the facts differ in important respects, as when different asylum applicants allege different harms, one adjudicator's finding that a given harm is not severe enough to be classified as "persecution" might have an a fortiori effect, signaling the same result for cases in which the harm is even less severe. The impact of consistency on certainty and predictability might also vary as between inter-tribunal and intra-tribunal conflicts. Inter-tribunal conflicts might be less serious, at least in cases where the rules of jurisdiction and venue constrain the parties' choices, since consistency within the applicable tribunal at least helps the parties predict how their particular cases will be decided. Inconsistent outcomes within a tribunal, in contrast, do not permit even that.
As I have suggested elsewhere, consistency might also contribute to certainty and predictability in a more indirect way:
One benefit of consistency is enhanced stability. Conflicts among equally authoritative bodies have ways of being reconciled eventually, either by gradual evolution or by pronouncements from above. The mere presence of a momentary conflict, therefore, can create at least the perception of imminent change, leaving affected sectors of the population uncertain how to plan for the future. Consistency reduces this uncertainty. (75)
Inconsistency can also impair efficiency. The very fact that two decisions are inconsistent means that the second adjudicator had to duplicate the analytical efforts of the first one rather than simply adopt the first adjudicator's reasoning and result. It also means that, at some point, some government actor will have to step in to resolve the issue definitively. Moreover, the resulting uncertainty leaves the parties less...
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