Liars and terrorists and judges, oh my: Moral panic and the symbolic politics of appellate review in asylum cases

Notre Dame Law Review

Volumn 83, Issue 5, 2008, Pages 2019-2044

  Fink, Eric M ^a  

^a ELON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 53449085416     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (172)

1. Kumar v. Gonzales, 444 F.3d 1043, 1060-61 (9th Cir. 2006) (Kozinski, J., dissenting) (footnote and citations omitted).
2. Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir. 2005) (citations omitted).
3. The general term "removal" refers to proceedings in which the government seeks to exclude or deport an alien from the United States. See John R.B. Palmer et al., 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. LJ. 1, 9-10 (2005).
4. See, e.g., Benslimane, 430 F.3d at 829-30;
5. see also Adam Liptak, Courts Criticize Judges' Handling of Asylum Cases, N.Y. TIMES, Dec. 26, 2005, at Al ("Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.").
6. See, e.g., Kumar, 444 F.3d at 1060-61 (Kozinski, J., dissenting).
7. See infra Part II.B.
8. See Evelyn H. Cruz, Double the Injustice, Twice the Harm: The Impact of the Board of Immigration Appeals's Summary Affirmance Procedures, 16 STAN. L. & POL'Y REV. 481, 491-92 (2005).
9. Id.
10. Id.
11. See id. at 492.
12. See id. at 482 nn.3 & 7, 491-92.
13. See Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers: Why the REAL ID Act Is a False Promise, 43 HARV. J. on LEGIS. 101, 113 (2006) (explaining "affirmative" and "defensive" asylum applications).
14. See id. at 113-14;
15. Cruz, supra note 7, at 491 & n.75.
16. See Cianciarulo, supra note 12, at 114;
17. Cruz, supra note 7, at 482 n.3, 492.
18. See Cruz, supra note 7, at 482-83;
19. John W. Guendelsberger, Judicial Deference to Agency Decisions in Removal Proceedings in Light of INS v. Ventura, 18 GEO. IMMIGR. L.J. 605, 607 (2005). The streamlined procedures were first adopted on a trial basis, and their use was expanded under regulations promulgated in 2002. See 8 C.F.R. § 1003.1 (2007);
20. see also Cruz, supra note 7, at 482 & n.2 (discussing the Executive Office for Immigration Review's pilot program for testing the regulations and their subsequent adoption by the BIA);
21. Guendelsberger, supra, at 607 ("Streamlining regulations promulgated in 1999 authorized single Board member decisions in place of panel decisions as well as affirmances of immigration judge decisions without opinion. Additional regulations in 2002 expanded the use of affirmances without opinion and limited the Board's authority to review findings of fact by immigration judges."). These procedures have been upheld against challenges on due process grounds. See Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003);
22. Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003);
23. Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003). However, many critics argue that the streamlined procedures are seriously deficient and fail to provide asylum applicants with meaningful review of their cases. See generally Cruz, supra note 7, at 499-504 (summarizing the BIA appeal process and citing sources criticizing the process).
24. See 8 C.F.R. § 1003.1 (d) (2) (i).
25. See id. § 1003.1 (e) (4);
26. Cruz, supra note 7, at 482.
27. See § 1003.1 (d) (3) (i);
28. Cruz, supra note 7, at 483;
29. Guendelsberger, supra note 15, at 607.
30. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,901 (Aug. 26, 2002). The BIA's composition has since been increased to fifteen members. See 8 C.F.R. § 1003.1(a)(1).
31. See § 1003.1 (d);
32. see also Cruz, supra note 7, at 482-83 (discussing briefly some of these procedural changes);
33. Guendelsberger, supra note 15, at 607 (same).
34. See Palmer et al., supra note 3, at 19-21. Prior to 1996, an alien in government custody could seek relief from a deportation order by filing a writ of habeas corpus in a federal district court. See 8 U.S.C. § 1105a (1994), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 306(b), 110 Stat. 3009-546, 3009-612;
35. Stephen H. Legomsky, Fear and Loathing in Congress and the Courts: Immigration and Judicial Review, 78 TEX. L. REV. 1615, 1623 (2000). Grants or denials of habeas relief were appealable pursuant to § 2253 of the Judicial Code. See 28 U.S.C. § 2253 (1994);
36. see also Shukoor v. Schiltgen, No. 97-55441, 1999 U.S. App. LEXIS 11079, at *2 (9th Cir. May 3, 1999) ("We have jurisdiction over the government's appeal pursuant to 28 U.S.C. § 2253."). Congress eliminated that avenue of relief as part of the 1996 amendments to the Immigration and Nationality Act. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 102, 110 Stat. 1214, 1217-18;
37. see Legomsky, supra, at 1623-24.
38. Legomsky, supra note 21, at 1616.
39. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 15, 18, 21, 22, 28, 40, 42, 49, 50 U.S.C).
40. Pub. L. No. 104-208, div. C, 110 Stat. 3009, 3009-546 (codified as amended in scattered sections of 8, 18 U.S.C).
41. See 8 U.S.C. § 1252(a)(2)(A) (2000 & Supp. V 2005) (precluding judicial review of expedited removal orders);
42. id. § 1252(a)(2)(B) (providing that "no court shall have jurisdiction to review" administrative denials of various discretionary remedies);
43. id. § 1252(a)(2)(C) (eliminating judicial review over removal orders based on criminal convictions).
44. See id. § 1252(b)(4)(B) (2000).
45. Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified as amended in scattered sections of 8, 49 U.S.C).
46. See 8 U.S.C. § 1158(b)(1)(B)(iii) (Supp. V 2005).
47. Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C).
48. 8 U.S.C § 1252(b) (4) (B). Prior to its amendment by the IIRIRA, the INA standard of appellate review provided that "findings of facts, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." Id. § 1105a(a)(4) (1994), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 306(b), 110 Stat. 3009-546, 3009-612;
49. see also Stephen M. Knight, Shielded from Review: The Questionable Birth and Development of the Asylum Standard of Review Under Elias-Zacarias, 20 GEO. IMMIGR. L.J. 133, 139 (2005) (quoting the pre-IIRIRA version of the statute).
50. 502 U.S. 478 (1992);
51. see also H.R. REP. No. 109-72, at 167 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240, 292 ("In 1996, as part of IIRIRA, Congress codified the principles that the Court articulated in Elias-Zacarias.");
52. Knight, supra note 30, at 140 (explaining that the IIRIRA codified the Elias-Zacarias standard).
53. Elias-Zacarias, 502 U.S. at 483-84. As Knight observes, the Elias-Zacarias standard and its subsequent statutory codification "dramatically narrow" the "substantial evidence" standard that typically applies to administrative agency determinations in other contexts, and which the majority of federal courts had applied in asylum cases prior to Elias-Zacarias. See Knight, supra note 30, at 140.
54. Elias-Zacarias, 502 U.S. at 481 n.1.
55. See Knight, supra note 30, at 135 (citing Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971));
56. JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 51.01 (2005)).
57. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
58. Knight, supra note 30, at 134 (quoting Susan K. Kerns, Note, Country Conditions Documentation in U.S. Asylum Cases: Leveling the Evidentiary Playing Field, 8 IND. J. GLOBAL LEGAL STUD. 197, 212 (2000)).
59. See H.R. REP. No. 104-828, at 219 (1996) (Conf. Rep.).
60. Proposals to Reduce Illegal Immigration and Control Costs to Taxpayers: Hearing on S. 269 Before the Subcomm. on Immigration of the S. Comm. on the Judiciary, 104th Cong. 165 (1996) (statement of Dan Stein, Executive Director, Federation for American Immigration Reform).
61. Id. (citations omitted). Senate Bill 269 contained provisions limiting the availability of judicial review in removal cases, but did not address the scope of judicial review in those cases where it would remain available. See Immigrant Control and Financial Responsibility Act of 1995, S. 269, 104th Cong. § 142 (1995).
62. See H.R. REP. No. 109-72, at 167-68 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240, 292-94.
63. 8 U.S.C. § 1158(b)(1)(B)(iii) (Supp. V 2005).
64. H.R. REP. No. 109-72, at 166-67, reprinted in 2005 U.S.C.C.A.N. at 291-92;
65. see also Cianciarulo, supra note 12, at 134 ("The Real ID Act codifies the long-established prescription that adjudicators weigh the totality of the circumstances when making credibility determinations.").
66. See, e.g., Nigussie v. Ashcroft, 383 F.3d 531, 537 (7th Cir. 2004) (affirming an adverse credibility determination based on evasiveness and inconsistency of the alien's testimony);
67. Singh-Kaur v. INS, 183 F.3d 1147, 1151-53 (9th Cir. 1999) (affirming an adverse credibility determination based on the alien's demeanor when testifying, internal inconsistency of testimony, implausibility of alien's account, and lack of detail in testimony).
68. Cianciarulo, supra note 12, at 135 (alteration in original) (quoting INS Supplementary Refugee/Asylum Adjudication Guidelines, reprinted in 67 INTERPRETER RELEASES 101, 102 (1990)).
69. See, e.g., Moscoso-Morales v. Gonzales, 188 F. App'x 780, 784 (10th Cir. 2006);
70. Kabamba v. Gonzales, 162 F. App'x 337, 340 (5th Cir. 2006);
71. Marquez-Vasquez v. U.S. Attorney Gen., 135 F. App'x 326, 328 (11th Cir. 2005);
72. Leia v. Ashcroft, 393 F.3d 427, 436 (3d Cir. 2005);
73. Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004);
74. Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir. 2004);
75. Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir. 2004);
76. Capric v. Ashcroft, 355 F.3d 1075, 1089-91 (7th Cir. 2004);
77. Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003);
78. Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir. 1999).
79. 8 U.S.C. § 1158(b)(1)(B)(iii);
80. see also Cianciarulo, supra note 12, at 134 (noting that "the Real ID Act departs from established case law" in this regard).
81. 151 CONG. REC. S4838 (daily ed. May 10, 2005) (statement of Sen. Brownback) (emphasis added).
82. See H.R. REP. No. 109-72, at 167-68 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240, 292-94.
83. See 8 U.S.C. § 1158(b) (1) (B) (iii) (providing that an IJ or the BIA may make a credibility determination "without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim"). The import of this provision is arguably tempered by the requirement that the factfinder base any credibility determination on "the totality of the circumstances, and all relevant factors." See id. This provision of the Real ID Act, however, is not a license to base a negative credibility finding in whole or in any significant part upon inconsistencies regarding immaterial facts. It merely permits immaterial inconsistencies to be considered as part of the totality of the circumstances. This is clear because the conference committee expressly rejected language in the House of Representatives version of the bill that would have allowed adjudicators to dispense with a reasoned totality of the circumstances analysis and make negative credibility determinations based on "any such factor, including... any inaccuracies or falsehoods... without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim." Cianciarulo, supra note 12, at 135 (footnote omitted) (alterations in original) (quoting H.R. 418, 109th Cong. § 101 (a)(3)(B)(iii) (2005)).
84. H.R. REP. No. 109-72, at 167, reprinted in 2005 U.S.C.C.A.N. at 292. Judge Alex Kozinski echoed this contention in a dissent excoriating his Ninth Circuit colleagues' "know-it-all approach, an error oft, repeated when our circuit reviews immigration cases in which an IJ has made an adverse credibility determination." Kumar v. Gonzales, 444 F.3d 1043, 1060 (9th Cir. 2006) (Kozinski, J., dissenting) (emphasis added). The implication (whether intended or not) is that the Ninth Circuit has frequently reversed adverse credibility determinations and that it has been more prone to do so than the other courts of appeals. The Ninth Circuit decided Kumar after passage of the REAL ID Act but applied the pre-REAL ID standard of review because the case had been initiated before the effective date of the new standard. See id. at 1049-50 (majority opinion).
85. See H.R. REP. No. 109-72, at 167, reprinted in 2005 U.S.C.C.A.N. at 292-93.
86. See id.
87. Id. at 167-68, reprinted in 2005 U.S.C.C.A.N. at 293 (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985), and citing Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 622 (9th Cir. 2003)).
88. See id. at 168, reprinted in 2005 U.S.C.C.A.N. at 293 (citing Mendoza Manimbao, 329 F.3d at 662).
89. Id. at 160, reprinted in 2005 U.S.C.C.A.N. at 286 (alterations in original) (quoting THOMAS R. ELDRIDGE ET AL., 9/11 AND TERRORIST TRAVEL 106 (2004)).
90. 151 CONG. REC. H460 (daily ed. Feb. 9, 2005) (statement of Rep. Sensenbrenner).
91. Id. Again, Judge Kozinski echoes this sentiment when he warns that "oft repeated" reversals by appellate courts make IJs "even more reluctant to make adverse credibility findings." Kumar v. Gonzales, 444 F.3d 1043, 1061 (9th Cir.2006) (Kozinski, J., dissenting).
92. H.R. REP. No. 109-72, at 160, reprinted in 2005 U.S.C.C.A.N. at 285-86.
93. See id. at 161, reprinted in 2005 U.S.C.C.A.N. at 286-87. The report mentions the cases of Ramzi Yousef, Ahmad Ajaj, Sheikh Abdul Rahman, Mir Aimal Kansi, Hesham Hedayet, Gazi Ibrahim Abu Mezer, and Nuradin Abdi. Id. at 160-61, reprinted in 2005 U.S.C.C.A.N. at 286. Of these, only Abdi was granted asylum. See id. at 161, reprinted in 2005 U.S.C.C.A.N. at 286. He was later arrested for allegedly plotting to blow up a shopping mall and "charged with conspiring to provide material support to al Qaeda," and his asylum was revoked. Id., reprinted in 2005 U.S.C.C.A.N. at 286-87. Earlier this year, Abdi pleaded guilty to one count of conspiring to support terrorists. See Jodi Andes, Somali Man Pleads Guilty to Plot, COLUMBUS DISPATCH, Aug. 1, 2007, at Al.
94. See Cianciarulo, supra note 12, at 104-05 ("[A]ll of the terrorists' applications that Chairman Sensenbrenner mentions as evidence of a faulty asylum system were submitted prior to the implementation of stricter asylum provisions contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and were denied even under the less strict provision in place at the time." (footnotes omitted));
95. see also id. at 104-05 & nn.20-21 (citing ELDRIDCE ET AL., supra note 55, at 47-48, 51, 215, 230).
96. 151 CONG. REC. S4838 (daily ed. May 10, 2005) (statement of Sen. Brownback).
97. See H.R. REP. No. 109-72, at 161, reprinted in 2005 U.S.C.C.A.N. at 287 (alterations in original) (quoting Government's Motion to Detain Defendant and Memorandum in Support at 4, United States v. Abdi, No. 2:04-CR-88 (S.D. Ohio June 14, 2004)).
98. See id.
99. A Lexis search for administrative and judicial decisions in Abdi's asylum case produced no results.
100. See Comment, U.S. Asylum Law out of Sync with International Obligations: REAL ID Act, 8 SAN DIEGO Int'l L.J. 209, 245 (2006) [hereinafter Out of Sync].
101. The data include opinions from the First through Eleventh Circuits. The Court of Appeals for the D.C. Circuit does not have jurisdiction over petitions for review in asylum and removal cases because there is no United States Immigration Court located within the District of Columbia. See U.S. Dep't of Justice, Executive Office for Immigration Review, http://www.usdqj.gov/eoir/ sibpages/ICadr.htm (last visited Apr. 27, 2008).
102. I collected the data using Lexis. Under the heading "All Topics > Immigration Law > Deportation & Removal," I searched for federal courts of appeals opinions reversing or vacating decisions of the BIA, and I identified those in which the appellate court reversed an adverse credibility determination.
103. The following do not count as "credibility reversals": Cases in which the appellate court upholds or does not address the IJ's adverse credibility determination, but vacates and remands on other grounds. See, e.g., Dhoumo v. Bd. of Immigration Appeals, 416 F.3d 172, 174 (2d Cir. 2005) (vacating and remanding where the IJ and the BIA failed to address the "threshold question" of the alien's nationality, but "not decid[ing] whether the IJ's adverse credibility finding was supported by substantial evidence");
104. Camara v. Ashcroft, 378 F.3d 361, 369-71 (4th Cir. 2004) (finding the IJ's adverse credibility determination supported by evidence in the record, but vacating and remanding where the IJ ignored other evidence that could support the asylum claim). Cases in which the appellate court questions the IJ's adverse credibility determination in dicta, but affirms anyway on other grounds. See, e.g., Kumah v. Ashcroft, 102 F. App'x 185, 186-87 (1st Cir. 2004) (characterizing an IJ's adverse credibility determination as "somewhat surprising" and "just barely" supported by the record, but affirming denial of asylum where the alien's testimony, even if credible, was insufficient to demonstrate eligibility for asylum). Cases in which the BIA did not adopt the IJ's adverse credibility determination, but denied asylum on other grounds. See, e.g., Zhen Hua Li v. Attorney Gen., 400 F.3d 157, 161, 168-70 (3d Cir. 2005) (vacating and remanding where the BIA did not adopt the IJ's adverse credibility determination but denied asylum on grounds that the alien's testimony, even if credible, was insufficient to prove eligibility for asylum);
105. Mukamusoni v. Ashcroft, 390 F.3d 110, 118-19, 126 (1st Cir. 2004) (same). Cases in which the appellate court vacates and remands where the IJ or BIA failed to make a credibility determination at all. See, e.g., Lin Un v. Gonzales, 415 F.3d 205, 208-11 (1st Cir. 2005) (vacating and remanding where the IJ assumed the alien's credibility but denied asylum on grounds that testimony failed to establish past persecution).
106. In several cases, the appellate court found a due process violation where the apparent evasiveness and inconsistencies in the alien's testimony, on which the IJ or BIA based the adverse credibility determination, were attributable to an incompetent translator. See, e.g., Amadou v. INS, 226 F.3d 724, 728 (6th Cir. 2000);
107. Perez-Lastor v. INS, 208 F.3d 773, 777-78 (9th Cir. 2000). In other cases, the appellate court found a due process violation where the BIA made an adverse credibility determination based on alleged inconsistencies in the alien's testimony that the IJ had not raised, so that the alien had no notice of, nor opportunity to respond to, the perceived inconsistencies. See, e.g., Campos-Sanchez v. INS, 164 F.3d 448, 450-51 (9th Cir. 1999).
108. See infra Appendix, Table 1.
109. See infra Appendix, Table 1.
110. See supra Figure 1.
111. Various commentators, both scholarly and otherwise, have discussed, and criticized, anecdote-driven public policy. See, e.g., Hans S. Nichols, Making Policy by Political Anecdote, INSIGHT ON NEWS, Aug. 20, 2001, at 20;
112. Morning Edition: Commentary by William Galston (NPR radio broadcast Mar. 9, 2000), available at http://www.npr.org/templates/story/ story.php?storyId=1071358. Anecdotes have a legitimate role in policy debate. See David A. Rochefort, Commentary, The Role of Anecdotes in Regulating Managed Care, HEALTH AFF., Nov.-Dec. 1998, at 142, 143-48. Because of their "relative brevity, the qualitative information they provide, and their illustrative poignancy," anecdotes can serve the useful purpose of calling attention to an issue and getting it on the policy agenda. Id. at 142. However, "anecdotal reports of abuses certainly should not be used by public officials as an excuse to overreact with new laws or rules that disregard standards of regulatory reasonableness." Id. at 147.
113. Kumar v. Gonzales, 444 F.3d 1043, 1060 (9th Cir. 2006) (Kozinski, J., dissenting);
114. see also Palmer et al., supra note 3, at 80 ("[I]t may be that litigants pay less attention to rates of reversal than to the overall number of reversals and the content of the courts' opinions. A large number of reversals might make an impression on people, regardless of how many affirmances are issued in the same year, at least if those reversals establish favorable precedent."). What is true of litigants is doubtless also true of politicians.
115. See infra Appendix, Table 2. Again, I used the Lexis heading "All Topics > Immigration Law > Deportation & Removal," this time searching for all federal courts of appeals opinions reviewing decisions of the BIA, and recording the total annual number of such opinions for each circuit.
116. See infra Appendix, Table 2.
117. See infra Appendix, Table 2.
118. See infra Appendix, Table 2.
119. See Palmer et al., supra note 3, at 3-4 (noting a fivefold increase in petitions for review of BIA decisions since 2002).
120. Id. at 3.
121. Id. at 3-4;
122. see supra notes 14-20 and accompanying text.
123. Palmer et al., supra note 3, at 4. Palmer, Yale-Loehr, and Cronin examine data on petitions for review in an effort to test various competing explanations for the increased appeal rate in immigration cases generally. Id. at 43-48. They consider several possible explanatory variables pertaining to characteristics of BIA decisions, characteristics of the BIA itself, characteristics of decisions by the courts of appeals, and changes in behavior by aliens facing removal and their attorneys. See id. at 55-93. Their analysis is inconclusive as to most of these variables, but it supports their hypothesis that an increased proportion of final orders of dismissal among the pool of BIA decisions has prompted an increased resort to judicial review by immigration attorneys on behalf of clients facing removal. See id. at 94.
124. See infra Appendix, Table 3.
125. See infra Appendix, Table 3.
126. See infra Appendix, Table 3.
127. See infra Appendix, Table 3.
128. See infra Appendix, Table 4.
129. See infra Appendix, Table 5.
130. See infra Appendix, Table 3. It is notable that in 2006-following the passage of the REAL ID Act-the Fourth and Fifth Circuits each reversed an adverse credibility determination for the first time in at least twelve years. See Tewabe v. Gonzales, 446 F.3d 533, 540 (4th Cir. 2006) ("The IJ erred in this case simply because he gave no cogent explanation based on common sense, the record, or any other relevant factor for disbelieving Tewabe.");
131. Kabamba v. Gonzales, 162 F. App'x 337, 343 (5th Cir. 2006).
132. See infra Appendix, Table 4. The great disparity in volume of opinions in removal cases between the Ninth Circuit and the other circuits holds true for the period from 2002-2005. However, the volume of opinions in each of the other circuits grew to levels at which annual credibility reversal rates are less susceptible to distortion by a small absolute number of reversals.
133. See Palmer et al., supra note 3, at 5, 27-32 (discussing the increased reliance on "streamlined" procedures since 2002 and criticisms thereof).
134. Critics, particularly within the immigration law bar, have alleged that a "culture of no" has become pervasive within the agencies responsible for immigration law enforcement. See, e.g., Nina Bernstein, Children Alone and Scared, Fighting Deportation, N.Y. TIMES, Mar. 28, 2004, § 1, at 1;
135. Mike Nixon, Immigration Practice Advances Privilege of Independence, St. LOUIS DAILY REC., July 4, 2005, at Al (" 'Ever since 9/11, even with simple petitions, you have this whole culture of "no," where everybody is afraid of being the one who let in the next terrorist.'" (quoting immigration lawyer Tim Wichmer));
136. The Politics of Immigration: Business v. Bush, ECONOMIST, Oct. 18, 2003, at 29;
137. Ann Woolner, Immigrants to U.S. Face Delays Posed by Culture of "No," L.A. BUS. J., Sept. 13, 2004, at 39;
138. Pam Zubeck, Immigration Horror Stories Aren't Unusual, GAZETTE (Colo. Springs, Colo.), Oct. 19, 2003, at Al; Press Release, Am. Immigration Lawyers Ass'n, Visa Denials and "Culture of No" Hurt America (Sept. 3, 2004), available at http://www.aila.org/content/ default.aspx?docid=11337;
139. Catholic Legal Immigration Network, Inc., Department of Homeland Security, http://www.cliniclegal.org/Advocacy/dhs.html (last visited Mar. 12, 2008) ("[S]ince the transfer of immigration services to a department focused on security, a 'culture of no' has pervaded application decisions.");
140. see also Palmer et al., supra note 3, at 31 n.170 (discussing the perceived loss of independence and the increased politicization of the BIA). See generally Peter Margulies, Uncertain Arrivals: Immigration, Terror, and Democracy After September 11, 2002 UTAH L. REV. 481 (reviewing the immigration law landscape in the aftermath of 9/11).
141. JOSEPH R. GUSFIELD, SYMBOLIC CRUSADE 166 (2d ed. 1986).
142. Id.
143. Id. ("We refer to it as a dramatistic theory because, like drama, it represents an action which is make-believe but which moves its audience.... It is make-believe in that the action need have no relation to its ostensible goal. The effect upon the audience comes from the significance which they find in the action as it represents events or figures outside of the drama.").
144. Id.; cf. Daniel M. Filler, Making the Case far Megan's Law: A Study in Legislative Rhetoric, 76 IND. LJ. 315, 319 (2001) (discussing "the role of rhetoric in constructing law, legal power relationships, and even public perceptions of social crises that lead to new legislation").
145. Murray Edelman, Symbols and Political Quiescence, 54 AM. POL. SCI. REV. 695, 697 (1960).
146. STANLEY COHEN, FOLK DEVILS AND MORAL PANICS 1 (3d ed. 2002);
147. see also Filler, supra note 96, at 318, 346-66 (analyzing the legislative debate and adoption of sex offender registration statutes in terms of "moral panic");
148. Michael Welch, Ironies of Social Control and the Criminalization of Immigrants, 39 CRIME, L. & SOC. CHANGE 319, 319-21 (2003) (examining legislation and public debate over immigration and terrorism in terms of moral panic).
149. See COHEN, supra note 98, at 1;
150. see also Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 TEX. L. REV. 799, 807 (2003) ("The elements of a moral panic include an intense community concern (often triggered by a publicized incident) that is focused on deviant behavior, an exaggerated perception of the seriousness of the threat and the number of offenders, and collective hostility toward the offenders, who are perceived as outsiders threatening the community. Although the fervor typically fades in a relatively short time, panics can effectively become institutionalized if legal and policy changes result.").
151. See supra note 55 and accompanying text;
152. see also COHEN, supra note 98, at xviii-xxi (discussing moral panic concerning "bogus" asylum seekers).
153. See COHEN, supra note 98, at 19-26;
154. see, e.g., Scott & Steinberg, supra note 99, at 807 (discussing the "exaggerated perception of the seriousness of the threat and the number of [juvenile] offenders").
155. See COHEN, supra note 98, at xix; supra notes 50-51.
156. See Out of Sync, supra note 65, at 211-12.
157. See id.; supra notes 50-61 and accompanying text.
158. See supra Part II.A.
159. See supra notes 58-64 and accompanying text.
160. See Sydenham B. Alexander III, A Political Response to Crisis in the Immigration Courts, 21 GEO. IMMIGR. L.J. 1, 11-36 (2006) (examining disparities in IJ disposition of asylum cases);
161. Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 372-78 (2007) (same);
162. Julia Preston, Wide Disparities in Judging of Asylum Cases, N.Y. TIMES, May 31, 2007, at Al (noting controversy over political influence in the appointment of IJs);
163. see also Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir. 2005) (criticizing the administrative adjudication of asylum claims).
164. See Ramji-Nogales et al., supra note 107, at 381 n.151 (citing Memorandum from Alberto Gonzalez, Attorney Gen., to Immigration Judges (Jan. 9, 2006), available at http://www.humanrightsfirst.info/pdf/06202- asy-ag-memo-ijs.pdf). See generally U.S. DEP'T OF JUSTICE, MEASURES TO IMPROVE THE IMMIGRATION COURTS AND THE BOARD OF IMMIGRATION (2006), available at http://trac.syr.edu/tracatwork/detail/P104.pdf (summarizing measures designed to achieve reform). The DOJ study and proposed measures have met with skepticism from critics who contend they are inadequate to redress the problems with the IJ/BIA system. See Ramji-Nogales et al, supra note 107, at 385 (criticizing certain measures as "vague and apparently very limited reform [that] does not go nearly far enough").
165. See GUSFIELD, supra note 93, at 166.
166. In applying the dramatistic perspective and folk-devil/moral-panic framework to discourse about "alien terrorists," I do not mean to suggest that concerns over terrorism are merely delusions. Real people (both alien and domestic) have committed real acts of violence and destruction for the purpose of expressing some political grievance or advancing some political cause; to the extent that "terrorism" refers to such people and their actions, the object of concern is real enough. My argument here is that the discourse of "terrorism" has-particularly since September 11, 2001-been applied in contexts and for purposes of questionable, or even nonexistent, relationship to actually existing terrorism, and with the effect of exaggerating its real significance. The dramatistic perspective and folk-devil/moral-panic framework provide a useful analytical device for understanding and critiquing such symbolic-political invocations of a "terrorist" threat.
167. Dahlia Lithwick summarizes the argument: You've heard "activist judges" so many times-from the president, from Congress, from the angry guys on the radio-that you can define it right along with me. Together then: Liberal activist judges make law, as opposed to interpreting it. They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars. Dahlia Lithwick, Activist Judges? What's in a Name?, SEATTLE Post-INTELLIGENCER, Aug. 18, 2004, at B7;
168. see also Jane Lampman, Bringing the Case Against Judges, CHRISTIAN Sci. MONITOR, Apr. 13, 2005, at 15 (summarizing the debate over judicial activism);
169. Rush Limbaugh, Liberalism Implemented by Activist Judges, The Rush Limbaugh Show (radio broadcast Dec. 1, 2004), available at http://www.rushlimbaugh.com/home/estack/ liberalism_implemented_by_activist_judges.guest.html (characterizing judicial activism as "some liberal judge" overruling the will of the voters);
170. Bill Mears, O'Connor: Don't Call Us 'Activist Judges,' CNN.COM, Nov. 28, 2006, http://www.cnn.com/2006/POLITICS/10/27/mears. judicialindependence (summarizing the debate over judicial activism). The charge of judicial activism has specifically been leveled by critics who assert that courts must not "second guess" administrative decisionmakers on matters concerning terrorism and national security. See, e.g., Associated Press, Gonzales: Judges Unfit to Rule on Terror Policy, MSNBC.COM, Jan. 17, 2007, http://www.msnbc. msn.com/id/16668110;
171. Terry Frieden, Ashcroft: "Activist"Judges Can Put Nation's Security at Risk, CNN.COM, Nov. 12, 2004, http://www.cnn.com/2004/ ALLPOLITICS/ll/12/ashcroft.judges/index.htmll. The attacks against "activist judges" have sometimes gone beyond mere rhetoric, provoking death threats. See Susan Jacoby, The Activist Judge Myth, TOMPAINE.COM, Aug. 14, 2006, http://www.tompaine.com/articles/ 2006/08/14/the_activist_judge_myth.php (noting death threats against judges in the Terry Schiavo case and the Dover, Pennsylvania "intelligent design" case).
172. See GUSFIELD, supra note 93, at 166.