Injury In Hack?

In 2016, the number of American consumers impacted by identity theft rose to 15.4 million from 13.1 million in 2015. Eighty-five percent of identity theft victims do not realize their identity has been stolen for a year or longer; and, according to a study completed in 2006, only 0.14% of identity thieves are ever caught.

Unfortunately for these millions of Americans, circuit courts are split over whether threat of future identity theft satisfies the “imminent injury-in-fact” requirement for Article III standing. Article III standing requires: (1) concrete, imminent injury-in-fact; (2) proximate causation; and (3) redressability. The split concerns the meaning of “imminent” within the injury-in-fact requirement.

Clapper v. Amnesty International

The primary case cited by courts on both sides of the issue is Clapper v. Amnesty International. In Clapper, the Supreme Court ruled that an “objectively reasonable likelihood” a future injury will be suffered by the plaintiff is insufficient for Article III standing, and that costs incurred to mitigate speculative harm do not satisfy the injury-in-fact requirement for standing. However, the court stopped short of ruling plaintiffs must prove that the harm will certainly occur. In some cases, “substantial risk” the injury will occur is sufficient.

The Splits

Does increased risk of identity theft qualify as a “substantial risk,” satisfying the imminent injury-in-fact requirement for Article III standing?

To Stand….

The Sixth, Seventh, and Ninth Circuits have held increased threat of identity theft qualifies as an imminent injury-in-fact. Moreover, these courts have held that costs incurred in response to this imminent injury qualify as a present injury-in-fact.

The Sixth and Seventh Circuits rest their decisions on a broad reading of Clapper. The Ninth Circuit decision was made prior to the Supreme Court’s ruling. These courts consider the increased threat to identity theft to satisfy the “substantial risk” standard for injury-in-fact.

In addition to a broad interpretation of Clapper, these courts distinguish the increased threat of identity fraud from the plaintiffs’ claims in Clapper. Primarily, the plaintiffs know their information has been stolen. In contrast, the plaintiffs in Clapper only suspected their conversations were being record. Costs are incurred from a breach of personal information in both cases, but, these courts distinguish the costs incurred to prevent identity theft from the costs incurred by the Clapper plaintiffs. Because the harm in Clapper was purely speculative, the costs incurred therefrom were merely to mitigate tenuous harm. However, if the increased threat of identity theft is not a speculative harm, costs incurred to mitigate should qualify as present injury.

From a public policy perspective, these courts feel it’s unfair to force plaintiffs to wait until their identities are stolen to sue.

Or Not to Stand….

The Third and Fourth Circuits have held increased threat of identity theft does not qualify as an imminent injury-in-fact. Additionally, these courts hold that costs incurred in response to a breach of data information is mitigation of a speculative harm and, under Clapper, not considered sufficient present injury-in-fact.

Both courts consider the increased threat of identity theft to be merely speculative until actual misuse of the personal information can be shown. The Fourth Circuit rests its decision on a narrow reading of Clapper. The Fourth Circuit considers the costs incurred by the identity-theft plaintiffs to be analogous to the costs incurred by the plaintiffs in Clapper, and therefore, determines that the costs are insufficient to satisfy the injury-in-fact requirement. Both courts feel that the plaintiffs’ claims require too many steps in the causal chain to qualify as “imminent.”

From a public policy perspective, these courts consider the slippery-slope of allowing some plaintiffs to sue on hypothetical future injuries, regardless of the likelihood that injury will occur.

Conclusion

Considering the alarming number of Americans affected by identity theft, this split should be resolved to inform citizens as to their legal rights following a data breach. Since few identity thieves are ever caught, litigating against those who are responsible for data breaches may be the only remedy available to those who identities are stolen. Therefore, clarity as to Article III standing must be resolved. On a broader scale, the underlying conflict in interpretation of the “substantial risk” standard following Clapper should also be resolved as this conflicting interpretations will only lead to more splits of this nature.

Notice Needed?: Courts Split on Evidentiary Notice for Asylum Proceedings

A circuit split has developed concerning whether applicants for asylum are required to receive notice of evidence needed for removal proceedings. The split centers on a provision of the Immigration and Nationality Act (INA) concerning burden of proof in granting asylum.

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

The Law

Under the Immigration and National Act, the burden of proof is on the applicant to prove that removal will result in persecution based on the individual’s race, religion, or membership in a particular social group.

The core of the split concerns differing statutory interpretations of the above section, particularly the phrase, “where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided.”

Resolving this split is essential for two reasons: (1) it concerns constitutional issues of due process and (2) it concerns public policy as the Syrian refugee crisis could greatly increase the number of asylum applications processed. Therefore, it is essential to have a clear, uniform policy.

The Split

The Ninth Circuit has interpreted the statute as unambiguously requiring the Immigration Judge (IJ) to give notice to the applicant of evidence required for removal hearings.

A plain reading of the statute’s text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.

Ren v. Holder (Ninth Circuit, 2011).

The court arrives at this interpretation primarily based on the statute’s use of the future tense.

 “Congress’s use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Here, the Act does not say “should have provided,” but rather “should provide,” which expresses an imperative that the applicant must provide further corroboration in response to the IJ’s determination. The applicant cannot act on the IJ’s determination that he “should provide” corroboration, of course, if he is not given notice of that determination until it is too late to do so.

Ren v. Holder.

In addition, the court considers the statute’s grammatical structure in determining Congressional intent.

Second, the grammatical structure of the controlling clause makes the provision’s meaning absolutely clear. The statute requires that corroborating evidence “must be provided” in the event that the IJ determines that it should be provided. Again, this language focuses on conduct that follows the IJ’s determination, not precedes it, as the phrase “must have been provided” would do, and as with the clause above, the statute’s future directed language means that the applicant must be informed of the corroboration that is required. Third, the statute goes on to excuse an applicant from satisfying the IJ’s request for corroboration if he “does not have the evidence and cannot reasonably obtain it.” This language is present-and future-oriented as well; the statute does not say “unless the applicant did not have the evidence and could not have reasonably obtained the evidence.” Therefore, if the IJ decides that the applicant should provide corroboration, the applicant must then have an opportunity to provide it, or to explain that he does not have it and “cannot reasonably obtain it.” It would make no sense to ask whether the applicant can obtain the information unless he is to be given a chance to do so.

Ren v. Holder,

In addition to textual interpretation, the court employs the canon of constitutional avoidance in construing the statute.

Moreover, even if the language had been ambiguous, the canon of constitutional avoidance requires us to come to the result discussed above. The canon “requires a statute to be construed so as to avoid serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir.2006). The REAL ID Act did not change our clear Fifth Amendment caselaw that requires a “full and fair hearing” in deportation proceedings. Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). We have previously observed that “demand[ing] [corroboration] immediately on the day of the hearing” would “raise [ ] serious due process concerns by depriving [an applicant] of his guarantee of a reasonable opportunity to present evidence on his behalf.” Marcos v. Gonzales,410 F.3d 1112, 1118 n. 6 (9th Cir.2005) A requirement that something be provided even before notice is given would raise even more due process concerns. This provides additional support for our interpretation of the statute, although we reiterate that the statutory text alone mandates our interpretation.

Ren v. Holder.

In contrast to the Ninth Circuit, the Sixth and Seventh Circuits have interpreted the statute as not requiring the IJ to give notice to the applicant of the evidence needed. The Seventh Circuit considers the statute itself provides notice to applicants of the evidence needed.

Finally, we add that the REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence.

Raphael v. Mukasey (Seventh Circuit, 2008).

The court also considers the burden that requiring notice would have on the Department of Homeland Security.

To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings-the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey.

The Sixth Circuit, in the most recent decision of the three, elected to follow the Seventh Circuit’s interpretation over the Ninth Circuit’s interpretation.

The court challenged the Ninth Circuit’s “plain reading” of the statute,

This text does not suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present. Even if it could be said that the statute is silent on the issue, and thus possibly could allow for such a construction (and we conclude it does not), it is plainly erroneous to say that the statute unambiguously mandates such notice.

Gaye v. Lynch (Sixth Circuit, 2015).

Looking Forward

This split is unlikely to be resolved until the appointment of a ninth justice to the Supreme Court. Immigration and asylum have been important issues in the 2016 presidential race. As statutory interpretation often divides the Supreme Court, it is unlikely a divided, eight-member Supreme Court will elect to review the split. Therefore, the next president is likely to appoint the justice that will make the final determination on whether applicants for asylum must be provided notice.