Immigration Article of the Day: Treating Persecution Determinations in Immigration Cases as a Mixed Question of Law and Fact by Eric Guo

Treating Persecution Determinations in Immigration Cases as a Mixed Question of Law and Fact by Eric Guo

Abstract

This Note argues that courts should adopt a “mixed approach,” where the question of whether particular facts rise to the level of persecution should be treated as a mixed question of law and fact.  Substantial evidence review should be applied for questions of fact (such as whether an instance(s) of alleged harm is severe enough to be deemed persecution) and de novo review should be applied for legal questions (such as whether an alleged type of harm can be deemed to be persecution as a matter of law). This approach gives appellate courts the ability to be nuanced in their analysis, instead of being strictly bound to apply one standard of review over another for every single case, thereby reducing the inequity borne by petitioners who have no ability to choose which federal circuit they can appeal to.

KJ