article by Eric Fink, associate professor at Elon University School of
Law, will appear in an upcoming edition of the Notre Dame Law Review.
Titled "Liars & Terrorists & Judges, Oh My: Moral Panic and the
Symbolic Politics of Appellate Review in Asylum Cases," the article is
scheduled to appear in Volume 83, Number 5, due for publication in the
The article examines a change in U.S. immigration law that was enacted
as part of the REAL I.D. Act of 2005. The new provision attempts to
limit the scope of judicial review in appeals from administrative
denials of asylum cases; specifically, the new provision limits the
ability of appellate courts to consider whether the administrative
immigration judge had a sound factual basis to determine that the
asylum applicant's testimony was not credible.
In a few well-publicized cases, appellate courts had concluded that
immigration judges had based their adverse credibility determinations
on conjecture without supporting evidence. Proponents of the
legislative change alleged that those appellate court decisions
amounted to "judicial activism" and posed a threat to national security
by making it easier for "alien terrorists" to enter and remain in the
U.S. on the basis of false asylum claims.
Fink's article argues that the facts do not support those claims, and
that the legislation is better understood as an example of "symbolic
politics" in the context of ongoing "moral panic" over "judicial
activism," "terrorism," and immigration.