Summary: A law professor has noticed that the Second U.S. Circuit Court of Appeals has copied and pasted an incorrect passage of law for inclusion in over twelve of its unpublished opinions.
A California law professor has busted the Second U.S. Circuit Court of Appeals for copying and pasting an incorrect legal standard in some of its written opinions, the Wall Street Journal reports. The incorrect law has appeared in some of the court’s immigration cases, which causes great concern for many, since the court, located in Manhattan, hears more immigration cases than any other federal appeals court (except the San Francisco court in the Ninth Circuit). Of the 7,225 appeals in the country that were to be considered last year, the New York court received 17% of them. These appeals challenged decisions from the Board of Immigration Appeals, which is the highest administrative immigration court.
Professor Brian Soucek of U.C. Davis School of Law reported in a 2012 study that the legal standard had been repeated in twelve unpublished orders that involved asylum claims over a four-year period, from 2008-2012. He believed the standard used was misleading. Apparently, the Second Circuit court stopped using the legal standard for a while after Professor Soucek’s paper was published, but the language was used in three cases this year. Concerned, he stated that the recent cases “not only copy and paste a statement of law that was misleading in 2012, when my article came out, but that is flat out wrong now.”
To obtain asylum in the United States, one method is to demonstrate a well-founded feeling of being persecuted because one belongs to a “particular social group.” The Board of Immigration has held that the first step in analyzing what “particular social group” means is to determine how the society encompassing the group views it.
Professor Soucek explains that the language in the orders is more literal. The orders rule that the groups “must exhibit a shared characteristic that is socially visible to others in the community.” This may lead to precedent that requires the shared characteristic to be a trait that is easily discernible, although both the Board of Immigration Appeals and the Second Circuit have rejected such an analysis.
Professor Soucek added, “If you’re applying for asylum in the Second Circuit, you’re more likely to have the incorrect standard applied as opposed to the correct standard.”
Published opinions are rarer than unpublished ones, which is also a concern since the legal standard appears in so many unpublished opinions. Unpublished opinions are typically supposed to carry no value beyond the opinion itself, in contrast to published opinions, which can be used by judges and attorneys to argue precedent. Staff attorneys typically draft unpublished opinions. Some have warned that federal courts rely too heavily on unpublished opinions, which risks creating a “parallel system of justice.”
Catherine Wolfe, Clerk of Court for the Second Circuit, stated, “We don’t offer additional commentary,” and that the court speaks through its opinions.
It would not be unreasonable to guess that this problem occurs in other circuits as well. Professor Soucek advises, “It is no less quick to copy and paste correct text than it is to copy text based on a mistaken understanding of law.”
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