Tuesday, September 30, 2014

Is the Second Circuit Using the Wrong Standard of Review?

From U.C. Davis:

A posting in the Wall Street Journal Law Blog focuses on "Copy-Paste Precedent," a study by Professor Brian Soucek showing that the U.S. Court of Appeals for the Second Circuit appeared to be copying and pasting the wrong legal standard into some of its unpublished opinions in immigration cases.

Soucek's paper shows that the Court repeated, word for word, a legal standard that he believes was misleading in a dozen unpublished orders involving asylum claims from 2008 to 2012 and in three additional orders this year. The standard concerns claims of asylum based upon fear of persecutions as a result of membership in a "particular social group." The language the Court used in the summary orders states that proposed groups must "exhibit a shared characteristic that is socially visible to others in the community," which could give the impression that the group members must share a trait that passing strangers could discern, an interpretation the Board of Immigration Appeals and the Second Circuit itself have recently rejected. (The Sixth Circuit cited other work by Soucek when it rejected the literal visibility standard in Umaña-Ramos v. Holder, 724 F3d 667 (6th Cir. 2013).)

You can read the Wall Street Journal’s blog entry here.




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