Judicial Deference and Agency Competence

49 Pages Posted: 8 Jun 2021 Last revised: 2 Jul 2024

See all articles by Mary Hoopes

Mary Hoopes

Pepperdine University - Rick J. Caruso School of Law

Date Written: June 1, 2021

Abstract

While there is consensus among practitioners and scholars alike that immigration adjudication is in a state of crisis, very few studies have examined the role that federal courts play in reviewing this system. This Article focuses on asylum appeals at the federal appellate level and constructs an original database of cases across five circuits over seven years. It reveals that the Courts of Appeals have created a wide variety of court-fashioned rules that serve to either expand or constrict the scope of judicial review, with important implications for the likelihood of remand. In these data, having one’s asylum appeal heard in the Seventh or Ninth Circuits was associated with a significantly higher likelihood of remand than in the First, Tenth, or Eleventh Circuits. This variation does not merely reflect a difference in the types of cases across circuits. Rather, a qualitative analysis reveals very different approaches to reviewing the agency’s decision-making. Across these five circuits, the Seventh and Ninth Circuits have adopted a much more searching level of review that arguably reflects a distrust of the agency’s competence.

As this analysis demonstrates, the elasticity of the appellate review model permits this wide variation, as courts applying a nearly identical standard of review are reaching starkly different results. I argue that the more expansive approach to review is normatively beneficial, as we ought to have an appellate review model that permits courts to be responsive to evidence of a compromised system of adjudication. This is particularly compelling in the context of asylum seekers, as their lack of political power has enabled both a long history of politicization of the adjudication process and a disregard for quality assurance initiatives within the agency. Since larger changes aimed at addressing the underlying flaws at the agency level are unlikely to be forthcoming soon, federal courts may be the only institutions equipped to meaningfully address problems within asylum adjudication.

Keywords: asylum, immigration, judicial decision-making, deference

Suggested Citation

Hoopes, Mary, Judicial Deference and Agency Competence (June 1, 2021). 39 Berkeley Journal of International Law 161 (2021), Pepperdine University Legal Studies Research Paper No. 2022/17, Available at SSRN: https://ssrn.com/abstract=3857994

Mary Hoopes (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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