The second circuit's "new asylum seekers": Responses to an expanded immigration docket

Catholic University Law Review

Volumn 55, Issue 4, 2006, Pages 965-997

  Palmer, John R B ^a  

^a NONE

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EID: 49549101805     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (238)

1. "Expulsion" is a generic term used here to refer to removal, deportation, and exclusion.
2. See John R.B. Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 N.Y.L. SCH. L. REV. (forthcoming 2006);
3. John R.B. Palmer, Stephen W. Yale-Loehr & Elizabeth Cronin, Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review, 20 GEO. IMMIGR. L.J. 1, 3-4 (2005).
4. See Palmer, Yale-Loehr & Cronin, supra note 2, at 8.
5. See id. at 28.
6. See Stephen H. Legomsky, The New Techniques for Managing High-Volume Asylum Systems, 81 IOWA L. REV. 671, 701-02 (1996).
7. See Palmer, Yale-Loehr & Cronin, supra note 2, at 3, 43-49.
8. See Lenni B. Benson, Making Paper Dolls: In Which the Author Explains How Restrictions on Judicial Review and the Administrative Process Increase Immigration Cases in the Federal Courts, 51 N.Y.L. SCH. L. REV. (forthcoming 2006); Palmer, Yale-Loehr & Cronin, supra note 2, at 44-45.
9. Benson, supra note 7; see also Palmer, Yale-Loehr & Cronin, supra note 2, at 71-72.
10. See Matthew J. Gibney, The State of Asylum: Democratisation, Judicialisation and Evolution of Refugee Policy, in THE REFUGEES CONVENTION 50 YEARS ON: GLOBALISATION AND INTERNATIONAL LAW 19, 22-23 (Susan Kneebone ed., 2003);
11. David A. Martin, The New Asylum Seekers, in THE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980S 1, 4-5 (David A. Martin ed., 1988).
12. th Sess.) ¶ 76, U.N. DOC. A/AC.96/651 (1984)).
13. See generally id.
14. See David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. PA. L. REV. 1247, 1325 (1990).
15. See infra Part II.A-D.
16. See infra note 74 and accompanying text; text accompanying notes 123-47.
17. See infra notes 87-94 and accompanying text.
18. See Palmer, supra note 2.
19. See, e.g., ABA COMM'N ON IMMIGR. POLICY, PRACTICE & PRO BONO, SEEKING MEANINGFUL REVIEW: FINDINGS AND RECOMMENDATIONS IN RESPONSE TO DORSEY & WHITNEY STUDY OF BOARD OF IMMIGRATION APPEALS PROCEDURAL REFORMS 1-4 (2003), available at http://www.abanet.org/immigration/bia.pdf [hereinafter ABA REPORT];
20. COMM. ON FED. COURTS, ASS'N OF THE BAR OF THE CITY OF N.Y., THE SURGE OF IMMIGRATION APPEALS AND ITS IMPACT ON THE SECOND CIRCUIT COURT OF APPEALS 1-2 (2004), available at http://www.abcny.org/pdf/report/AppealSurgeReport.pdf [hereinafter ABCNY REPORT];
21. DORSEY & WHITNEY LLP, STUDY CONDUCTED FOR: THE ABA COMM'N ON IMMIGR. POLICY, PRACTICE & PRO BONO, RE: BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT 39-41 (2003), available at http://www.dorsey.com/files/upload/DorseyStudyABA_8mgPDF.pdf;
22. STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 729-31 (4th ed. 2005); Benson, supra note 7; Palmer, supra note 2; Palmer, Yale-Loehr & Cronin, supra note 2, at 3-8. For media accounts of this increase, see Palmer, Yale-Loehr & Cronin, supra note 2, at 8 n.17.
23. See Palmer, Yale-Loehr & Cronin, supra note 2, at 44. The direct causes of this phenomenon are a rise in both (1) the volume of BIA decisions being issued each month, and (2) the rate at which those decisions are appealed. See id. at 4. The causes of the increase in appeal rate are more difficult to pin down, but have been hypothesized as (1) an increase in the proportion of BIA decisions constituting final expulsion orders, (2) an increase in the proportion of final orders of removal involving non-detained aliens, and (3) a shift in litigation behavior among immigration lawyers and their clients based on the high volume of BIA decisions and dissatisfaction with the BIA's procedures. See id. at 6-7.
24. See id. at 44-45.
25. See id.
26. See Palmer, supra note 2.
27. See Palmer, Yale-Loehr & Cronin, supra note 2, at 44-45, 48-49.
28. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 201, 98 Stat. 333, 346-47 (codified at 28 U.S.C. § 44 (2000)) (providing for the most recent increase in Second Circuit judgeships, from eleven to thirteen); see also Chronological History of Authorized Judgeships in U.S. Courts of Appeals, http://www.uscourts.gov/history/ chronological_appeals.pdf (last visited June 27, 2006). In addition to the thirteen active judges on the Second Circuit, the court also has a fluctuating number of judges on senior status.
29. See 28 U.S.C. § 371(b)(1) (2000). That number currently stands at ten. See U.S. Court of Appeals for the Second Circuit, List of Second Circuit Judges, http://www.ca2.uscourts.gov/JudgesMain.htm (last visited June 27, 2006).
30. See Palmer, supra note 2.
31. See id. (reporting 2,360 petitions for review filed between April 1, 1972 and April 1, 2002, and 7,723 petitions filed between April 1, 2002 and October 1, 2005).
32. See Federal Court Management Statistics 2005, Courts of Appeals, http://www.uscourts.gov/cgi-bin/cmsa2005.pl (last visited Aug. 16, 2006) [hereinafter Federal Court Management Statistics] (reporting 7,035 cases filed in the Second Circuit during fiscal year 2005, as compared to 4,519 during fiscal year 2001).
33. This figure is calculated using the number of petitions for review filed in the Second Circuit during fiscal years 2005 (2,550) and 2001 (173) reported in the data sets assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC) and disseminated by the Inter-university Consortium for Political and Social Research (ICPSR). See Palmer, Yale-Loehr & Cronin, supra note 2, at 33-34; see also Federal Court Management Statistics, supra note 26 (noting the numbers for overall Second Circuit filings during those fiscal years - 7,035 for 2005 and 4,519 for 2001).
34. See Palmer, Yale-Loehr & Cronin, supra note 2, at 48.
35. The percentage is calculated from the number of petitions for review filed in the Second Circuit in fiscal year 2005 (2,550) - obtained from the ICPSR data sets - and the total number of Second Circuit filings in 2005 (7,035) - obtained from the AO's 2005 Federal Court Management Statistics. See supra note 27. That this is the largest single category of cases can be seen by comparing it with the categories listed in Judicial Business of the U.S. Courts 2005, excluding, of course, the "administrative appeals" category into which petitions for review themselves fall. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE U.S. COURTS 2005, at 134 tbl.B-6 (2005), available at http://www.uscourts.gov/judbus2005/contents.html [hereinafter JUDICIAL BUSINESS OF THE U.S. COURTS 2005].
36. In fiscal year 2005, the court received 1,511 civil appeals between private parties, see JUDICIAL BUSINESS OF THE U.S. COURTS 2005, supra note 29, at 134 tbl.B-6, as compared to 2,550 petitions for review, see supra note 27.
37. In fiscal year 2005, the court received 995 criminal appeals and 1,511 civil appeals between private parties. See JUDICIAL BUSINESS OF THE U.S. COURTS 2005, supra note 29, at 134 tbl.B-6. The total appeals received in these categories combined is 2,506, as compared, again, with 2,550 petitions for review, see supra note 27.
38. See Palmer, Yale-Loehr & Cronin, supra note 2, at 19.
39. See id.
40. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1), (b)(1) (2000).
41. See, e.g., cases cited supra note 74.
42. See Irving R. Kaufman, Must Every Appeal Run the Gamut? - The Civil Appeals Management Plan, 95 YALE L.J. 755, 756-57 (1986).
43. See generally JERRY GOLDMAN, AN EVALUATION OF THE CIVIL APPEALS MANAGEMENT PLAN: AN EXPERIMENT IN JUDICIAL ADMINISTRATION (1977), reprinted, in part, in MANAGING APPEALS IN FEDERAL COURTS 21 (Fed. Judicial Ctr. 1988);
44. ANTHONY PARTRIDGE & ALAN LIND, A REEVALUATION OF THE CIVIL APPEALS MANAGEMENT PLAN (1983), reprinted, in part, in MANAGING APPEALS IN FEDERAL COURTS 89, supra;
45. Jerry Goldman, The Civil Appeals Management Plan: An Experiment in Appellate Procedural Reform, 78 COLUM. L. REV. 1209 (1978).
46. See JUDITH A. MCKENNA, LAURAL L. HOOPER & MARY CLARK, CASE MANAGEMENT PROCEDURES IN THE FEDERAL COURTS OF APPEALS 26-32 (Fed. Judicial Ctr. 2000), available at http://www.fjc.gov/public/pdf.nsf/lookup/CaseMan1.pdf/$File/CaseMan1.pdf;
47. Lisa Evans, Mediation in the Ninth Circuit Court of Appeals, 26 JUST. SYS. J. 351, 351-52 (2005) (noting that the Ninth Circuit launched a pilot program in 2004 to identify groups of immigration cases that might be amenable to settlement); E-mail from Robert Rack, Med., U.S. Court of Appeals for the Sixth Circuit, to John Palmer, Assoc. Supervisory Staff Att'y, U.S. Court of Appeals for the Second Circuit (July 25, 2006, 17:33 EST) (on file with author) (explaining that while immigration cases are not ineligible for mediation in the Sixth Circuit based on any rule or written policy, in practice, immigration cases are generally mediated only at the request of a party or the court); E-mail from David Lombardi, Chief Circuit Med., U.S. Court of Appeals for the Ninth Circuit, to John Palmer, Assoc. Supervisory Staff Att'y, U.S. Court of Appeals for the Second Circuit (July 25, 2006, 17:33 EST) (on file with author) (explaining that immigration cases were excluded from Ninth Circuit mediation until 2004, and that they are currently mediated only when requested by a party or referred to mediation by judges or motions attorneys).
48. See generally ROBERT J. NIEMIC, MEDIATION & CONFERENCE PROGRAMS IN THE FEDERAL COURTS OF APPEALS: A SOURCEBOOK FOR JUDGES AND LAWYERS (Fed. Judicial Ctr. 1997), available at http://www.fjc.gov/public/pdf.nsf/lookup/mediconf.pdf/$File/ mediconf.pdf. As discussed below, the Second Circuit has now cut back on its immigration mediation. See infra notes 44-47.
49. See Palmer, Yale-Loehr & Cronin, supra note 2, at 79 tbl.7.
50. See ABCNY REPORT, supra note 17, at 11-12.
51. See, e.g., PARTRIDGE & LIND, supra note 36, at 91, 99. For example, in the late 1990s, dozens of petitions for review involving jurisdictional issues created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) were put on hold pending resolution of these issues in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998). Palmer, Yale-Loehr & Cronin, supra note 2, at 47. Once Henderson was decided, these cases were mostly remanded to the BIA based on settlement agreements between the parties. See id. at 47 n.232.
52. See MCKENNA, HOOPER & CLARK, supra note 37, at 70.
53. Full disclosure: The author was this mediator.
54. See Notice to Second Circuit Litigants, http://www.ca2.uscourts. gov/Docs/CAMP/Notice_to_Litigants.pdf (effective July 6, 2004).
55. See 2D CIR. R. 0.29(a), (c), available at http://www.ca2.uscourts.gov/Docs/Rules/LR.pdf; Memorandum from John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit (Sept. 13, 2005) (on file with author).
56. See 2D CIR. R. 0.29(a), (c).
57. See id. R. 0.29(b).
58. See id. R. 0.29(a), (c).
59. See Memorandum from John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit, supra note 44.
60. See Notice to Second Circuit Litigants, supra note 43.
61. See 2D CIR. R. 0.29(d).
62. Id.
63. See Memorandum from John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit, supra note 44.
64. See MCKENNA, HOOPER & CLARK, supra note 37, at 8-9, 10 tbl.5 (summarizing the courts' non-argument practices as of 2000); 2D CIR. R. 0.29 (instituting the Second Circuit's first non-argument calendar); Pamela A. MacLean, Judges Blast Immigration Rulings, NAT'L L.J., Oct. 24, 2005, at S1 (noting that the Second Circuit's creation of the non-argument calendar was "a first for a circuit that prides itself on giving all litigants an opportunity for oral argument").
65. See MCKENNA, HOOPER & CLARK, supra note 37, at 70, 72.
66. See id. at 70.
67. See, e.g., id. at 11 tbl.6.
68. See id.
69. See id. at 11 tbl.7.
70. See Memorandum from John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit, supra note 44.
71. 2D CIR. R. 0.29.
72. See Memorandum from John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit, supra note 44.
73. Id.
74. See id.
75. See MCKENNA, HOOPER & CLARK, supra note 37, at 6-7, 6 tbl.4, 68.
76. See id. at 68.
77. Full disclosure: The author helped to create this unit, and he supervised it from August 2005 to August 2006.
78. This figure comes from the ICPSR data described supra note 27.
79. This figure was obtained from the court's internal docket database.
80. This figure was estimated based on a search of Westlaw's database of unreported Second Circuit decisions (CTA2U) for the phrase "Board of Immigration Appeals" with dates before June 1, 2006, and after September 30, 2005. That search, conducted on July 25, 2006, yielded 1,235 cases, but it is assumed that not all of these are petitions for review.
81. The complete list of cases is on file with the author.
82. A breakdown on these terminations is not available at this time.
83. These figures were obtained from the court's internal docket database.
84. This can be easily confirmed by a Westlaw search for the phrase "Board of Immigration Appeals" within the database of reported Second Circuit decisions (CTA2R).
85. Yuanliang Liu v. U.S. Dep't of Justice, 455 F.3d 106, 111 (2d Cir. 2006); Liang Chen v. U.S. Att'y Gen., 454 F.3d 103, 105-08 (2d Cir. 2006) (per curiam); Guo-Le Huang v. Gonzales, 453 F.3d 142, 146-48 (2d Cir. 2006); Li Zu Guan v. INS, 453 F.3d 129, 138-40 (2d Cir. 2006); Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 109-11 (2d Cir. 2006); Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453-54 (2d Cir. 2006) (per curiam); Kanacevic v. INS, 448 F.3d 129, 136-38 (2d Cir. 2006); Zhi Wei Pang v. Bureau of Citizenship & Immigration Servs., 448 F.3d 102, 112 (2d Cir. 2006); Tu Lin v. Gonzales, 446 F.3d 395, 403 (2d Cir. 2006); Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289, 297 (2d Cir. 2006) (per curiam); Diallo v. Gonzales, 445 F.3d 624, 629-34 (2d Cir. 2006); Rui Ying Lin v. Gonzales, 445 F.3d 127, 132 (2d Cir. 2006); Rizal v. Gonzales, 442 F.3d 84, 89-91 (2d Cir. 2006); Pavlova v. INS, 441 F.3d 82, 91-92 (2d Cir. 2006); Chung Sai Zheng v. Gonzales, 440 F.3d 76, 79-81 (2d Cir. 2006) (per curiam); You Hao Yang v. BIA, 440 F.3d 72, 76 (2d Cir. 2006) (per curiam); Ming Shi Xue v. BIA, 439 F.3d 111, 113-14 (2d Cir. 2006); Singh v. BIA, 438 F.3d 145, 147 (2d Cir. 2006); Tandia v. Gonzales, 437 F.3d 245 (2d Cir. 2006); Sall v. Gonzales, 437 F.3d 229, 235-36 (2d Cir. 2006); Qyteza v. Gonzales, 437 F.3d 224, 226 (2d Cir. 2006); Borovikova v. U.S. Dep't of Justice, 435 F.3d 151, 154 (2d Cir. 2006); Ming Xia Chen v. BIA, 435 F.3d 141, 143 (2d Cir. 2006); Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 157-60 (2d Cir. 2006); Yu Yin Yang v. Gonzales, 431 F.3d 84, 85-86 (2d Cir. 2005); Latifi v. Gonzales, 430 F.3d 103, 104-05 (2d Cir. 2005); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005); Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 400-02 (2d Cir. 2005); Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113-14 (2d Cir. 2005); Chun Gao v. Gonzales, 424 F.3d 122, 131 (2d Cir. 2005); Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398-99 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Zhou Yi Ni v. U.S. Dep't of Justice, 424 F.3d 172, 174 (2d Cir. 2005); Jin Yu Lin v. U.S. Dep't of Justice, 413 F.3d 188, 189-90 (2d Cir. 2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir. 2005); Jin Hui Gao v. U.S. Att'y Gen., 400 F.3d 963, 963-64 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 74, 79 (2d Cir. 2004); Xusheng Shi v. BIA, 374 F.3d 64, 65-66 (2d Cir. 2004); Ramsameachire v. Ashcroft, 357 F.3d 169, 174-75 (2d Cir. 2004); Wu Biao Chen v. INS, 344 F.3d 272, 273, 275 (2d Cir. 2003); Secaida-Rosales v. INS, 331 F.3d 297, 301, 312 (2d Cir. 2003).
86. See THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN & HIROSHI MOTOMURA, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 831-33 (5th ed. 2003) (discussing the 1980 Refugee Act and earlier forms of persecution-based relief).
87. The limited number of other opinions in which the court actually reviewed adverse credibility determinations in the immigration context include: Kokkinis v. Dist. Dir. of INS, 429 F.2d 938, 939-40, 942 (2d Cir. 1970) (deferring to special inquiry officer's decision to credit a witness over the petitioner, leading to a finding of deportability based on marriage fraud); United States ex rel. Exarchou v. Murff, 265 F.2d 504, 505, 507 (2d Cir. 1959) (reversing special inquiry officer's adverse credibility finding, which had led to a denial of voluntary departure).
88. See, e.g., Kitty Calavita, The Paradoxes of Race, Class, Identity, and "Passing": Enforcing the Chinese Exclusion Acts, 1882-1910, 25 LAW & SOC. INQUIRY 1, 26-27, 30-31, 34-35 (2000).
89. See Gibney, supra note 9, at 26.
90. See Martin, supra note 9, at 2-4, 9-10.
91. See id. at 9-10; Doris Meissner, Reflections on the U.S. Refugee Act of 1980, in THE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980S, supra note 9, at 60. As former INS Commissioner Doris Meissner put it: "Our historical understanding and policy conception of refugees and refugee situations was that of an overseas phenomenon. As a nation, we saw ourselves responding to events that occurred far away, and we saw refugees as persons whom we screened and chose before they could come to the United States." Id.
92. See Gibney, supra note 9, at 26-27. On the politicized nature of U.S. refugee admissions during this period, see generally GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES AND AMERICA'S HALF- OPEN DOOR, 1945 TO THE PRESENT 25-48 (1986);
93. Ira J. Kurzban, A Critical Analysis of Refugee Law, 36 U. MIAMI L. REV. 865 (1982). Writing in 1982, Professor Ira Kurzban concluded that "[s]ince 1948, our government has used the refugee admissions process for political purposes. The result is a selection and admission process that is promoted and ultimately molded by the unique value of refugees as political metaphors of alleged communist oppression." Id. at 866-67 (footnote omitted).
94. See Martin, supra note 9, at 2, 8 (acknowledging that the placement of the "new asylum seeker" in historical context leaves out "certain exceptions and qualifications" from earlier periods). Important exceptions to the image of "traditional" asylum seekers gathering in a neighboring country of first asylum, and remaining there unless invited to resettle farther afield, are the massive and scattered refugee movements from the Ottoman and Russian Empires, and the European dictatorships of the first half of the twentieth century. See Gilbert Jaeger, Irregular Movements: The Concept and Possible Solutions, in THE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980S, supra note 9, at 28-29. Ironically, it was those movements that had spawned the modern system of international refugee protection to begin with.
95. See, e.g., Jean-Yves Carlier, The Geneva Refugee Definition and the 'Theory of the Three Scales', in REFUGEE RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES 37, 38 (Frances Nicholson & Patrick Twomey eds., 1999);
96. Danièle Joly, A New Asylum Regime in Europe, in REFUGEE RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES, supra, at 336-37;
97. Jerzy Sztucki, Who is a Refugee? The Convention Definition: Universal or Obsolete, in REFUGEE RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES, supra, at 55-56.
98. Martin, supra note 9, at 4.
99. See id. at 1, 5.
100. See id. at 1 (quoting Report of the Executive Comm. of the High Commissioner's Programme (35th Sess.) ¶ 76, U.N. DOC. A/AC.96/651 (1984)).
101. Gibney, supra note 9, at 28 (emphasis omitted). In addition, the fact "that the overwhelming majority of [these] asylum seekers [were] of non-European origin" fueled xenophobic reactions. Jaeger, supra note 82, at 36-37 (quoting the statement of a government representative at the consultations on the arrivals of asylum-seekers and refugees in Europe, held in Geneva in 1985).
102. See T. Alexander Aleinikoff, Aliens, Due Process and "Community Ties": A Response to David Martin, 44 U. PITT. L. REV. 237, 253-56 (1983) [hereinafter Aleinikoff, A Response to David Martin];
103. T. Alexander Aleinikoff, Political Asylum in the Federal Republic of Germany and the Republic of France: Lessons for the United Stales, 17 U. MICH. J.L. REFORM 183, 185 & n.14, 191, 199-200, 223-25, 231 (1984) [hereinafter Aleinikoff, Political Asylum] (discussing skeptical official reactions in the United States and West Germany, and noting growing pressure for restrictive immigration measures in France); Gibney, supra note 9, at 26-33;
104. Stephen H. Legomsky, Political Asylum and the Theory of Judicial Review, 73 MINN. L. REV. 1205, 1208-09 (1989); Martin, supra note 9, at 8-11.
105. See Stephen Yale-Loehr & John R.B. Palmer, Evidentiary Issues in Asylum Cases, 6 BENDER'S IMMIGR. BULL. 595, 595 (2001).
106. See Palmer, supra note 2.
107. See Aleinikoff, Political Asylum, supra note 87, at 188-95, 199-211; Gibney, supra note 9, at 28; Joly, supra note 82, at 341-55.
108. See Deborah E. Anker, Determining Asylum Claims in the United States: Summary Report of an Empirical Study of the Adjudication of Asylum Claims Before the Immigration Court, 2 INT'L J. REFUGEE L. 252, 256-59 (1990);
109. Ilene Durst, Lost in Translation: Why Due Process Demands Deference to the Refugee's Narrative, 53 RUTGERS L. REV. 127, 137-45, 160-74 (2000);
110. Elwin Griffith, Asylum and Withholding of Deportation - Challenges to the Alien After the Refugee Act of 1980, 12 LOY. L.A. INT'L & COMP. L. REV. 515, 529-34 (1990).
111. Refugee Act of 1980, Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 105 (codified as amended at 8 U.S.C. § 1158 (2000)); see Aleinikoff, Political Asylum, supra note 87, at 184; Meissner, supra note 80, at 60.
112. See Aleinikoff, Political Asylum, supra note 87, at 184; CHARLES B. KEELY, U.S. COMM'N ON IMMIGRATION REFORM, THE CHALLENGE OF MASS ASYLUM 3-4 (1994), available at http://www.utexas.edu/lbj/uscir/ respapers/tco-jan94.pdf; Meissner, supra note 80, at 60.
113. Refugee Act of 1980 § 209(b), 94 Stat. at 106.
114. Meissner, supra note 80, at 60; see also KEELY, supra note 93, at 3-4 (noting that the number had "no particular basis" and "seemed more than sufficient for the trickle of persons who sought asylum").
115. See Meissner, supra note 80, at 60-61. This figure is only a rough estimate, as there are no reliable data from this period on the precise number of asylum applications filed. See Aleinikoff, Political Asylum, supra note 87, at 184 n.12, 186-88, 186 n.16.
116. See OFFICE OF IMMIGR. STATS., U.S. DEP'T OF HOMELAND SEC. (DHS), 2002 YEARBOOK OF IMMIGRATION STATISTICS 65 tbl.18 (2003), available at http://uscis.gov/graphics/shared/aboutus/statistics/Yearbook2002.pdf. The DHS statistics show only those asylum applications filed with the INS and DHS, not applications filed, defensively, in immigration courts only after the commencement of removal proceedings. Id. at 57-58. The total number of asylum applications filed each year is therefore greater than that reported by DHS. See id. at 58.
117. See Martin, supra note 12, at 1325; see also Palmer, Yale-Loehr & Cronin, supra note 2, at 43-44, 46 fig.1 (showing the low number of immigration appeals overall during this period).
118. See Martin, supra note 12, at 1325.
119. This assertion is based on the fact that there are few Second Circuit opinions reviewing adverse credibility determinations during this period. See supra note 76.
120. See, e.g., Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994); Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986); Canjura-Flores v. INS, 784 F.2d 885, 889 (9th Cir. 1985).
121. See, e.g., Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (holding that "the plain meaning of the phrase 'persecution on account of the victim's political opinion,' does not mean persecution solely on account of the victim's political opinion"); Sotelo-Aquije v. Slattery, 17 F.3d 33, 35, 37 (2d Cir. 1994) (holding that evidence compelled conclusion that a Peruvian man had a "well-founded fear of persecution" on account of political opinion where he was targeted by the Peruvian Shining Path guerillas for actively opposing that group); Gomez v. INS, 947 F.2d 660, 663-64 (2d Cir. 1991) (holding that being beaten and raped by Salvadoran guerillas did not make a woman a member of a "particular social group" for purposes of asylum eligibility).
122. See, e.g., Ofosu v. McElroy, 98 F.3d 694, 701 (2d Cir. 1996).
123. See Benson, supra note 7. The courts probably began to see more asylum cases at this time because there had been a huge bulge of asylum applications at the agency level in the mid-1990s, and these were probably just beginning to work their way through the BIA. See OFFICE OF IMMIGR. STATS., supra note 97, at 65 tbl.18.
124. See Palmer, Yale-Loehr & Cronin, supra note 2, at 43-44, 46 fig.1.
125. 185 F.3d 18 (2d Cir. 1999).
126. Id. at 21, 24.
127. Id. at 24.
128. Id. at 24, 26.
129. 232 F.3d 279 (2d Cir. 2000).
130. Id. at 290.
131. 251 F.3d 44, 54-55 (2d Cir. 2001).
132. 329 F.3d 140, 153-54 (2d Cir. 2003).
133. See id. at 150-52.
134. Id. at 152.
135. Id. at 151.
136. Id. at 151-52.
137. See id. at 150-53; Alvarado-Carillo v. INS, 251 F.3d 44, 54-55 (2d Cir. 2001); Diallo v. INS, 232 F.3d 279, 289 (2d Cir. 2000); Abankwah v. INS, 185 F.3d 18, 26 (2d Cir. 1999).
138. See, e.g., Diallo, 232 F.3d at 287.
139. See id. at 290. The Diallo opinion expressly rejected the Ninth Circuit's rule that corroboration may never be the sole basis for denying an asylum claim. See id. at 286 (rejecting the standard laid out in Cordon-Garcia v. INS, 204 F.3d 985, 992 (9th Cir. 2000)). As the court later recognized in Jin Shui Qiu, however, this statement is not necessarily part of the holding in Diallo, since it was not strictly necessary to the result. Jin Shui Qiu, 329 F.3d at 154 n.11. Although the court has not returned to this issue, Congress has. In the REAL ID Act of 2005, Congress provided (with respect to asylum applications filed on or after May 11, 2005), "[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." Pub. L. No. 109-13, § 101(a)(3), (h)(2), 119 Stat. 231, 303, 305 (codified at 8 U.S.C.A. § 1158(b)(1)(B)(ii) (West Supp. 2006)).
140. Diallo, 232 F.3d at 288.
141. See Jin Shui Qiu, 329 F.3d at 152.
142. 331 F.3d 297, 301 (2d Cir. 2003).
143. Id. at 301-04.
144. Id. at 308-09.
145. Id. at 308.
146. Id.
147. See id. at 312.
148. See id. at 307, 312.
149. See id. at 307 (citing and quoting Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2003); Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999); Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998); Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990)).
150. See id. at 308.
151. See id. at 307 (citing Aguilera-Cota, 914 F.2d at 1380).
152. See id. at 309.
153. See id. at 310-12.
154. See id. at 312.
155. 344 F.3d 272 (2d Cir. 2003) (per curiam).
156. Id. at 275.
157. Id. at 275-76 (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)).
158. 386 F.3d 66 (2d Cir. 2004).
159. Id. at 73.
160. See, e.g., Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006) (holding that an applicant's "minor fault" in the medical terminology used to describe the condition of her ovaries was, "at most, the sort of de minimis, nonmaterial inconsistency that we have often stated may not form the basis for an adverse credibility determination"); Chung Sai Zheng v. Gonzales, 440 F.3d 76, 80 (2d Cir. 2006) (per curiam) (holding that an applicant's medically erroneous description of his vasectomy as involving an operation on his "muscles," and a discrepancy on the applicant's child's birth certificate regarding the location of the birth, were "patently insufficient to support an adverse credibility finding"); Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (holding that a determination could not be supported by "insignificant and trivial" discrepancies); Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 114-15 (2d Cir. 2005); Chun Gao v. Gonzales, 424 F.3d 122, 131-32 (2d Cir. 2005); Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir. 2003).
161. See, e.g., Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 110-11 (2d Cir. 2006); Pavlova, 441 F.3d at 88-89; Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 159 (2d Cir. 2006); Secaida-Rosales, 331 F.3d at 309-10.
162. See, e.g., Latifi, 430 F.3d at 105-06; Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 403 (2d Cir. 2005).
163. See Yuanliang Liu v. U.S. Dep't of Justice, 455 F.3d 106, 111 (2d Cir. 2006); Guo-Le Huang v. Gonzales, 453 F.3d 142, 146-48 (2d Cir. 2006); Li Zu Guan v. INS, 453 F.3d 129, 138-40 (2d Cir. 2006); Li Hua Lin, 453 F.3d at 109-11; Zhi Wei Pang v. Bureau of Citizenship & Immigration Servs., 448 F.3d 102, 112 (2d Cir. 2006); Tu Lin v. Gonzales, 446 F.3d 395, 403 (2d Cir. 2006); Rui Ying Lin v. Gonzales, 445 F.3d 127, 132 (2d Cir. 2006); Rizal v. Gonzales, 442 F.3d 84, 89-91 (2d Cir. 2006); Pavlova v. INS, 441 F.3d 82, 91-92 (2d Cir. 2006); Chung Sai Zheng v. Gonzales, 440 F.3d 76, 80 (2d Cir. 2006) (per curiam); You Hao Yang v. BIA, 440 F.3d 72, 76 (2d Cir, 2006) (per curiam); Ming Shi Xue v. BIA, 439 F.3d 111, 113-14 (2d Cir. 2006); Singh v. BIA, 438 F.3d 145, 147 (2d Cir. 2006); Tandia v. Gonzales, 437 F.3d 245, 249-50 (2d Cir. 2006); Sall v. Gonzales, 437 F.3d 229, 235-36 (2d Cir. 2006); Qyteza v. Gonzales, 437 F.3d 224, 226-28 (2d Cir. 2006); Xiao Ji Chen, 434 F.3d at 158-60; Latifi, 430 F.3d at 105-06; Cao He Lin, 428 F.3d at 402-03; Jin Chen, 426 F.3d at 114-15; Chun Gao, 424 F.3d at 131; Secaida-Rosales, 331 F.3d at 312.
164. See Guo-Le Huang, 453 F.3d at 151; Li Zu Guan, 453 F.3d at 142; Li Hua Lin, 453 F.3d at 112; Zhi Wei Pang, 448 F.3d at 112; Rui Ying Lin, 445 F.3d at 136; Rizal, 442 F.3d at 93; Pavlova, 441 F.3d at 92; You Hao Yang, 440 F.3d at 76; Chung Sai Zheng, 440 F.3d at 81; Ming Shi Xue, 439 F.3d at 128; Singh, 438 F.3d at 150; Tandia, 437 F.3d at 251; Sall, 437 F.3d at 236; Latifi, 430 F.3d at 105-06; Cao He Lin, 428 F.3d at 395; Jin Chen, 426 F.3d at 107; Chun Gao, 424 F.3d at 132; Secaida-Rosales, 331 F.3d at 313.
165. See Yuanliang Liu, 455 F.3d at 118 (remanding on the issue of the frivolousness finding, but not on the adverse credibility finding); Qyteza, 437 F.3d at 228; Tu Lin, 446 F.3d at 403; Xiao Ji Chen, 434 F.3d at 149.
166. See Liang Chen v. U.S. Att'y Gen., 454 F.3d 103, 105-08 (2d Cir. 2006) (per curiam); Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453-54 (2d Cir. 2006) (per curiam); Kanacevic v. INS, 448 F.3d 129, 136-38 (2d Cir. 2006); Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289, 297 (2d Cir. 2006); Diallo v. Gonzales, 445 F.3d 624, 629-34 (2d Cir. 2006); Singh, 438 F.3d at 149-50; Borovikova v. U.S. Dep't of Justice, 435 F.3d 151, 161-62 (2d Cir. 2006); Ming Xia Chen v. BIA, 435 F.3d 141, 144-46 (2d Cir. 2006); Yun-Zui Guan v. Gonzales, 432 F.3d 391, 400 (2d Cir. 2005) (per curiam); Yu Yin Yang v. Gonzales, 431 F.3d 84, 85-86 (2d Cir. 2005); Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522-23 (2d Cir. 2005); Zhou Yi Ni v. U.S. Dep't of Justice, 424 F.3d 172, 174 (2d Cir. 2005) (per curiam); Jin Yu Lin v. U.S. Dep't of Justice, 413 F.3d 188, 191-92 (2d Cir. 2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir. 2005) (per curiam); Jin Hui Gao v. U.S. Att'y Gen., 400 F.3d 963, 964 (2d Cir. 2005) (per curiam); Zhou Yun Zhang v. INS, 386 F.3d 66, 66 (2d Cir. 2004); Xusheng Shi v. BIA, 374 F.3d 64, 65-66 (2d Cir. 2004) (per curiam); Ramsameachire v. Ashcroft, 357 F.3d 169, 175 (2d Cir. 2004); Wu Biao Chen v. INS, 344 F.3d 272, 275-76 (2d Cir. 2003) (per curiam).
167. This comparison was first suggested to me by Professor Gerald L. Neuman.
168. See, e.g., ALEINIKOFF, MARTIN & MOTOMURA, supra note 75, at 146; Kitty Calavita, supra note 77, at 34.
169. See, e.g., United States v. Ju Toy, 198 U.S. 253, 261-63 (1905); Lem Moon Sing v. United States, 158 U.S. 538, 547-50 (1895); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 595-96, 603-04, 606 (1889). See generally Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 854-63 (1987);
170. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 550-54).
171. See generally LUCY E. SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW (1995).
172. See id. at 43, 58-65.
173. Gerald L. Neuman, The Constitutional Requirement of "Some Evidence," 25 SAN DIEGO L. REV. 631, 638-39 (1988) (footnote omitted).
174. See SALYER, supra note 151, at 80 tbl.3, 81.
175. See Neuman, supra note 153, at 637-41. For a recent application of the standard in the Second Circuit, see Ortiz v. McBride, 380 F.3d 649, 655 (2d Cir. 2004) ("For a prison disciplinary proceeding to provide due process there must be, among other things, 'some evidence' to support the sanction imposed." (quoting Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001))), cert. denied, 543 U.S. 1187 (2005).
176. 187 F. 544 (2d Cir. 1911).
177. Id. at 550.
178. At this time, it was the Department of Commerce and Labor that was responsible for implementing the Chinese exclusion laws.
179. Chin Len, 187 F. at 545.
180. Id. at 546, 549.
181. Id. at 546.
182. Id. at 548.
183. Id. at 549-50.
184. Id. at 549.
185. Id. at 544.
186. See Chin Yow v. United States, 208 U.S. 8, 12 (1908); United States v. Ju Toy, 198 U.S. 253, 261-62 (1905).
187. See Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922).
188. See Chin Len, 187 F. at 550.
189. Id.
190. See SALYER, supra note 151, at 207-12.
191. See Neuman, supra note 153, at 640.
192. See SALYER, supra note 151, at 194-207.
193. See id. at 69-93.
194. See id. at 72.
195. See id.
196. Id. at 81-82.
197. Id. at 82.
198. Id. at 91-92.
199. Id. at 92.
200. Id.
201. On the efforts to increase the professionalism and independence of today's IJs, see ALEINIKOFF, MARTIN & MOTOMURA, supra note 75, at 249-50; Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 INTERPRETER RELEASES 453, 457-69 (1988).
202. Neuman, supra note 153, at 638-39 (describing the Chinese Exclusion period).
203. Another may simply be that accurately judging a witness' truthfulness is an extremely difficult task, and people are bound to disagree over both the process and the outcome. As the Second Circuit has remarked, "these cases, simply put, are hard." Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 112 (2d Cir. 2006).
204. See generally KO-LIN CHIN, SMUGGLED CHINESE: CLANDESTINE IMMIGRATION TO THE UNITED STATES (1999); PETER KWONG, FORBIDDEN WORKERS: ILLEGAL CHINESE IMMIGRANTS AND AMERICAN LABOR (1997).
205. See SALYER, supra note 151, at 44, 61-62.
206. See United States v. Porges, 80 F. App'x 130, 131 (2d Cir. 2003); Brief for the United States of America at 5, Porges, 80 F. App'x 130 (2d Cir. 2003) (Nos. 02-1520(L), 02-1522, 02-1549).
207. For a fascinating account of the case (and the subsequent prosecution for perjury, false statements, and passport fraud), see David A. Martin, Adelaide Abankwah, Fauziya Kasinga, and the Dilemmas of Political Asylum, in IMMIGRATION STORIES (David A. Martin & Peter H. Schuck eds., 2005).
208. SALYER, supra note 151, at 82 (discussing the Chinese exclusion period).
209. 453 F.3d 142 (2d Cir. 2006).
210. Id. at 144.
211. Id. at 145.
212. Id. at 145-46 (quoting IJ's oral decision) (internal quotations omitted).
213. Id. at 145 (quoting IJ's oral decision) (internal quotations omitted).
214. Id.
215. Id. (quoting IJ's oral decision) (internal quotations omitted).
216. Id. at 146-47.
217. Id. at 146.
218. Id. at 146-47.
219. Id. at 147 (noting that the IJ's speculation "appears to have been influenced by his evidence bias against Huang").
220. Id. at 148-50 (discussing and quoting the hearing transcript).
221. Id. at 148 (quoting the hearing transcript) (internal quotations omitted).
222. Id. at 149 (quoting hearing transcript) (internal quotations omitted).
223. Id. (quoting hearing transcript) (internal quotations omitted).
224. Id.
225. Id. (quoting hearing transcript).
226. Id. (quoting hearing transcript) (internal quotations omitted) (alteration in original).
227. Id. at 151.
228. See, e.g., Xiu Ling Zhang v. Gonzales, 405 F.3d 150, 157 (3d Cir. 2005) (noting that the IJ may have relied on a 1998 State Department Report's finding that documentation from certain parts of China "is subject to widespread fabrication and fraud") (internal quotations omitted); Xing Chan Yang v. Ashcroft, 104 F. App'x 254, 257 (3d Cir. 2004) (unpublished decision) (noting IJ's reliance on a State Department report to find that "the Court must be on guard . . . with regard to any and all documentation coming from China, especially Fujian province which apparently is replete with fraud") (omission in original); Jiamu Wang v. INS, 352 F.3d 1250, 1254 (9th Cir. 2003) (noting IJ's reliance on a 1995 State Department report entitled China - Country Conditions and Comments on Asylum Applications to find that documentation from China is "marked by widespread fabrication and fraud") (internal quotations omitted); see also IRENA OMELANIUK, COOP. EFFORTS TO MANAGE EMIGRATION, BEST PRACTICES TO MANAGE MIGRATION: CHINA (2004), available at http://migration.ucdavis.edu/ceme/more.php?id=149_0_6_0 (discussing document fraud in China).
229. 445 F.3d 127 (2d Cir. 2006).
230. Id. at 134.
231. See id. at 134-35. The Ninth Circuit expressed this same point in a 1950s Chinese citizenship case, in which it overturned a district court's adverse credibility finding because the finding was predicated on the similarity between the applicant's claim and other Chinese citizenship claims that the trial judge had adjudicated. Mar Gong v. Brownell, 209 F.2d 448, 450-53 (9th Cir. 1954). The Ninth Circuit held that the trial court "should not have given weight to its experiences, unfortunate as they may have been, in other cases, in arriving at its findings with respect to this appellant." Id. at 453. Instead, "[e]ach case should be allowed to stand upon its own bottom." Id.
232. See, e.g., Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006) (holding that an applicant's "minor fault" in the medical terminology used to describe the condition of her ovaries was, "at most, the sort of de minimis, nonmaterial inconsistency that we have often stated may not form the basis for an adverse credibility determination"); Chung Sai Zheng v. Gonzales, 440 F.3d 76, 80 (2d Cir. 2006) (per curiam) (holding that an applicant's medically erroneous description of his vasectomy as involving an operation on his "muscles," and a discrepancy on the applicant's child's'birth certificate regarding the location of the birth, were "patently insufficient to support an adverse credibility finding"); Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (holding that a determination could not be supported by "insignificant and trivial" discrepancies); Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir. 2003).
233. See, e.g., Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 110-11 (2d Cir. 2006); Pavlova, 441 F.3d at 88; Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 159 (2d Cir. 2006); Secaida-Rosales, 331 F.3d at 309-10.
234. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (noting that "it is inevitable that some findings of lack of credibility will be deemed supportable by one panel that would not pass muster in the view of another panel").
235. One reason for this skewed picture is that the government cannot seek judicial review of BIA decisions. Consequently, the courts do not see the thousands of cases in which asylum applicants are found credible and granted relief. In fiscal year 2005, for example, the immigration courts nationwide granted 11,737 asylum claims, and denied 19,166. EXECUTIVE OFFICE FOR IMMIGR. REVIEW, U.S. DEP'T OF JUSTICE, FY 2005 STATISTICAL YEARBOOK K2 (2006), available at http://www.usdoj.gov/eoir/statspub/fy05syb.pdf. Leaving aside claims that were withdrawn, abandoned, or otherwise disposed of, this translates into a grant rate of 38%. For the New York immigration court, which is the source of most of the asylum decisions under review in the Second Circuit, the grant rate was 62%, or 2,760 grants and 3,285 denials. Id. at K6 tbl.8. In addition, these numbers do not take into account all of the asylum claims granted at the asylum officer level before applicants are even placed in expulsion proceedings.
236. See KELLY JEFFERYS, U.S. DEP'T OF HOMELAND SEC., ANNUAL FLOW REPORT: REFUGEES AND ASYLEES: 2005, at 5 tbl.9 (2006), available at http://www.uscis.gov/graphics/shared/statistics/publications/ Refugee_Asylee_5.pdf (reporting 13,520 grants in fiscal year 2005). The New York immigration court's 62% grant rate may well suggest that the tension visible in Second Circuit published opinions is based only on aberrational errors. On the other hand, 62% may be a low grant rate when one considers that this is a class of cases in which the government rarely introduces any evidence directly bearing on the events in dispute, relying instead mostly on the evidence introduced by the applicants themselves. An added complication is that behind the overall immigration court grant rates, there is wide variation between the grant rates of individual IJs.
237. See Transactional Records Access Clearinghouse (TRAC), Immigration Judge Reports - Asylum, at http://trac.syr.edu/immigration/reports/ judgereports/.
238. Li Hua Lin, 453 F.3d at 112.