Friday, February 26, 2010

Deference to Error?

How many serious errors must an agency make before the deferential standard of review accorded its decisions is revisited? That's the question that came to mind reading yesterday's excellent asylum decision by the Second Circuit. In Kone v. Holder, the court found that the Board of Immigration Appeals' decision (adopting and affirming the immigration judge's opinion) doubly erred, making mistakes both in its application of the law and its findings of fact. Ms. Kone, a national of Cote d'Ivoire, suffered female genital mutilation in her home country and feared that her two U.S. citizen daughters would be subject to the same treatment if she were to be sent back. She was also persecuted for her race, religion, and political opinion.
Even applying the highly deferential standards of review applicable in the immigration field (substantial deference to the agency's interpretation of its own regulation and substantial evidence for the agency's findings of fact), the Second Circuit found that the agency made serious mistakes in Ms. Kone's case. First, the immigration judge failed to shift the burden of proof to the government, as its own regulations require when an asylum applicant proves that they suffered persecution in the past. Notably, the court cites its own precedent for the point that where a woman has already undergone female genital mutilation, this does not lead automatically to the conclusion that no possibility of future persecution exists. Apart from the reality that a woman might be subject to further mutilation, there is no requirement in asylum law that threats must take the same form or be the same act as past persecution. The concept is simple -- if an asylum applicant's arm had been chopped off by government agents who opposed his political opinion, nobody would argue that he'd already lost his arm so wouldn't risk being persecuted again upon his return -- yet somehow judges find it difficult to grasp that a woman who has suffered female genital mutilation might face other forms of persecution, such as rape, based on her gender and ethnicity.
After describing the second error made by the immigration judge (a fundamental factual mistake), the court suggests that Kone might be eligible for asylum on two additional grounds. First, the mutilation she suffered might rise to the level of severe past persecution, which can on its own be grounds for asylum regardless of the risk of future persecution. Second, even if Kone's experience of FGM does not meet this higher standard, it might be sufficient to show past harm in the form of mutilation combined with the "mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child." With stakes this high, and errors this grave, how is it that such great deference is still accorded to these administrative adjudicators?

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