The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees

Authors

Charles Shane Ellison, Duke Law SchoolFollow

Document Type

Article

Publication Date

2024

Abstract

Deep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. 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 how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. 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 circuit-by-circuit study of each of the five core elements of the refugee definition to show the depth of disagreement related to standards of review. Notwithstanding the high stakes involved in reviewing asylum denials, and the inherent difficulty in obtaining remand when the 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 nondeferential review of their case denials as capaciously as the law permits. Yet, my original research reveals that U.S. appellate courts often vacillate over how to treat each element, or misclassify 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 plenary nondeferential, 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.

Citation

Charles Shane Ellison, The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees, 38 Georgetown Immigration Law Journal 143-206 (2024)