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Abstract

Factual findings drive asylum adjudication. If immigration judges get them wrong, they risk sending refugees back to persecution. Recent studies have exposed an immigration agency that is prone to inaccurate and ill-considered fact-finding due to its structural problems. Without the political will or the financial capital necessary to fix what many acknowledge as a compromised system of adjudication, the agency may continue to render decisions that cast doubt on its capability and expertise. With an agency either unable or unwilling to ensure an accurate and fair fact-finding process, the first meaningful review of an asylum applicant’s claim happens at the federal courts of appeals, where judges continue to affirm the agency’s decisions under a most deferential understanding of the substantial evidence standard of review. This Article exposes that anomaly and articulates an understanding of the substantial evidence standard that allows reviewing judges more latitude to consider the capabilities and credibility of the agency when they assess agency findings of fact. It argues that, in light of the agency’s severe under-resourcing problems, judges should review the agency’s factual findings less deferentially and exercise their discretion to remand decisions back to the agency if they lack confidence in the accuracy and fairness of the fact-finding process. The price to pay for not doing so is the risk of sending an individual to persecution.

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