Liars and Terrorists and Judges, Oh My: Moral Panic and the Symbolic Politics of Appellate Review in Asylum Cases

Eric M. Fink
2007 Social Science Research Network  
The larger problem with the majority's opinion is its know-it-all approach, an error oft repeated when our circuit reviews immigration cases in which an IJ has made an adverse credibility determination. First, the majority lays out the applicant's story as if it were the gospel truth, making it seem like denial of rehearing will cause a huge miscarriage of justice. Then the majority picks apart the IJ's findings piece by piece, scrutinizing his every sentence as if it is completely unconnected
more » ... o the rest of his opinion. Don't agree with the IJ that the applicant is lying? Not to worry; just label the IJ's finding 'speculation and conjecture.' Finding it difficult to dispute that the applicant is lying? No problem; just label the inconsistencies 'minor,' or 'merely incidental to [the] asylum claim.' The net effect is that any asylum applicant who is a skillful enough liar -and many who aren't -must be believed no matter how implausible or farfetched their story. It also means that IJs, who are doubtless chary of being vilified by august court of appeals judges, become even more reluctant to make adverse credibility findings, even when they have good reason to believe the asylum applicant is lying. None of this bears any resemblance to administrative law, and none of it finds support in the statutes Congress has given us to apply, or the rules the Supreme Court has instructed us to follow .1
doi:10.2139/ssrn.1069128 fatcat:7kmuaybppnebdoidtf3t365iii