Tuesday, September 30, 2014

Response to “Criticism of Second Circuit ‘Copying and Pasting’ Misses the Big Picture” by Brian Soucek


Professor Brian Soucek, UC Davis School of Law

In a guest post last week, Professor Andrea Saenz argued that I missed the forest for some very small, and possibly misidentified, trees in a 2012 Essay and a recent Wall Street Journal interview, where I criticized the Second Circuit for copying and pasting substantively misleading language into its unpublished immigration opinions. Not only does Professor Saenz think the court’s copy-and-pasted language isn’t all that bad, but she thinks that I’ve overlooked “the broader picture of how the Second Circuit actually treats the claims of asylum seekers, which is thoughtfully and with care.” Perhaps unsurprisingly, I disagree on both counts.

Saenz thinks that my “hyper-focused critique” of “small word choices” and “minor phrases” misses what courts are really doing in asylum claims based on “membership in a particular social group,” which until recently required a showing of the group’s “social visibility.” But I’ve been arguing since 2010 that “small word choices”—all playing on ambiguities in the word “visibility”—are what confused immigration judges, the Board of Immigration Appeals, courts, and, as the Solicitor General later admitted, the DOJ’s own lawyers, into thinking that social group members need to “look” a certain way in order to receive protection. Given all this confusion, the BIA made more than what Saenz calls a “cosmetic change” when it abandoned “visibility” for “distinction” in two precedential decisions last February. Yet the literalized understanding of visibility that the BIA abandoned is precisely the one the Second Circuit keeps giving us when it copies and pastes the claim that asylum seekers must exhibit a trait that is socially visible in their society.

No matter, Saenz argues, because the literalized understanding of visibility that appears in the Second Circuit’s unpublished summary orders doesn’t seem, on its own, to have doomed any asylum claims. That may be true, but none of us writing from outside the court can really be sure. Consider, for example, Vucaj v. Holder,one of the court’s most recent copy-paste jobs. The unpublished opinion in that case is so shoddy that it fails even to mention the social group it rejects as a matter of law. Since the briefs are sealed, the public has no way of knowing whether the group, whatever it may have been, is one that should be rejected under the actual governing standard—social distinction—not just the court’s outdated, copied-and-pasted paraphrase.

So much for the trees; what about the forest? In her main disagreement with me, Professor Saenz argues that I’ve missed how the Second Circuit “seriously engag[es] with asylum law” and “actually treats the claims of asylum seekers … thoughtfully and with care.” If that’s the forest, I haven’t missed it so much as denied its existence.

Putting aside her personal experience working at the Second Circuit—as I do also in my work, which relies only on publically available information—Saenz draws what she calls the “big picture” from six cases in which the Second Circuit reached good outcomes—or at least refused to affirm the bad outcomes that were reached below. But during the years in which those six cases were heard, the Second Circuit decided some 5,213 immigration cases (according to the BIA). So the fact that the Second Circuit may have reached admirable decisions in 0.12% of those cases is hardly revealing. (A broken clock is right 0.14% of the time.) In short, it will take more to convince me that I’ve missed the big picture here.

In particular, it will take more to convince me that the Second Circuit is being “thoughtful,” “careful,” or “seriously engaged” when it decides 98% of its immigration cases through non-precedential summary orders rather than published opinions; when it presumptively denies oral argument in asylum cases—and only asylum cases; when its judges, departing from their usual practice, resolve nearly all asylum claims without meeting in person to discuss them; and when the court finds in favor of asylees at a rate that, for several years, has been less than half that of its sister circuits. (Sources: Soucek; Newman; Levy; BIA.)            

None is this is to deny that some within the Second Circuit have done inspiring work on behalf of immigrants—largely in collaboration with the terrific clinic that Professor Saenz helps lead. In fact, the innovative and tireless spirit that Chief Judge Katzmann has brought to bear in helping immigrants find legal representation is, I think, exactly what is needed within the court as well. For nine years now—the anniversary is today—the Second Circuit has subjected asylum-seekers to a separate and decidedly unequal procedural regime, solely for the sake of efficiency. But efficiency comes at a cost. My work on copy-paste precedent aimed to show just part of that cost—one which, like so many others, asylees are forced to bear.



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