The failure of immigration appeals.

• Author: Hausman, David
• Position: Abstract through IV. Time, Lawyers, and Selection Bias in Appeals, p. 1177-1207

Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. This Article uses an internal administrative database, obtained by Freedom of Information Act request, to demonstrate that the appeals process for the immigration courts--a system of administrative adjudication that makes as many decisions as the federal courts--does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal by the Board of Immigration Appeals or federal courts of appeals.

Why? I find that the Board of Immigration Appeals and the courts of appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board therefore rarely reviews the removal orders of immigrants who might have meritorious claims but who are assigned harsh judges and lack lawyers at the beginning of their proceedings.

These quantitative findings, together with interviews and immigration court observation, lead to three incremental, practical policy recommendations. First, the Board of Immigration Appeals and the courts of appeals should adopt a less deferential standard of review of an immigration judge's denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants. More broadly, these findings offer further reason--in addition to basic access-to-justice concerns--to support calls for the government to appoint counsel for immigrants in removal proceedings.

INTRODUCTION I. UNIFORMITY AND THEORIES OF ADMINISTRATIVE APPEAL. II. MEASURING DISPARITY A. Data B. Measuring Harshness III. APPEALS A. The Board of Immigration Appeals B. Courts of Appeals IV. TIME, LAWYERS, AND SELECTION BIAS IN APPEALS A. Time, Encouragement, and Access to Counsel and Relief 1. Providing Time to Access Counsel 2. Influencing Immigrants' Litigation Strategy B. Selection Effects on Appeal C. 2002 Streamlining at the Board of Immigration Appeals V. IMPLICATIONS A. Immigration Adjudications 1. Review of Denials of Continuances 2. Practical Changes to Application for Relief Process 3. Review of Additional Cases 4. Adoption of Government-Provided Counsel for Immigrants B. Administrative Due Process CONCLUSION APPENDIX A. Case Assignment B. Subsample C. Appeals Regressions INTRODUCTION

In some immigration courts, the arbitrary assignment of a judge can increase or decrease an immigrant's chance of being deported by up to forty percentage points. These disparities are large not only in absolute terms, but also relative to other well-known judicial disparities. For example, disparities in rates of deportation are three times larger, on average, than disparities in federal judges' decisions about whether to incarcerate criminals. (1)

Immigrants (2) who are ordered deported by a particularly harsh judge may appeal that judgment to the Board of Immigration Appeals (BIA), and from there to a federal court of appeals. (3) One might expect this appeals process to counteract disparities across immigration judges. Does it? If not, why not?

To answer these questions, I use a database, obtained by Freedom of Information Act request, that includes records of every immigration court proceeding initiated over the last two decades. (4) The database contains information about immigrants' nationalities and lawyers, the location of their immigration proceedings, the immigration charges against them, and the applications for relief that they filed. It also tracks success on appeal. The long timespan covered by the data allows cases to be traced from beginning to end, even when a case lasts over ten years, as some do.

The data reveal that the BIA is, surprisingly, not more likely to reverse the removal orders of relatively harsher judges (immigration judges who deport more immigrants than their court's average). I argue that this pattern (or lack of one) reflects the fact that judges who hesitate to issue removal orders also allow immigrants far more time to find a lawyer. Some judges allow cases to last up to two years longer, on average, than cases before other judges in the same court. Immigrants who appear before these generous judges are therefore more likely to have a lawyer by the time their case is decided. Because immigrants with a lawyer are far more likely to appeal, cases decided by generous judges are thus more often reviewed and reversed.

These findings advance the empirical literature on immigration courts and administrative review. First, the new and comprehensive data set makes it possible to track, for the first time, disparities across judges for all cases across three levels of adjudication--immigration courts, the BIA, and courts of appeals. Second, in measuring cross-judge disparities, I consider and account for the lack of pure random assignment of cases to judges. Third, previous empirical scholarship on immigration courts has focused on the subset of cases in which an immigrant applies for asylum;* I show that the random assignment of an immigration judge affects not only case outcomes, but also whether an immigrant applies for asylum or other relief in the first place. Finally, this Article uses detailed date information from the administrative data set, together with court observation and interviews, to offer a novel explanation for the immigration appeals process's failure to increase consistency in immigration judge decisions.

More broadly, these findings should influence theoretical scholarship on the effectiveness of administrative and judicial appeals. They highlight the mismatch between the (minimal) inquisitorial procedures available for immigrants without lawyers in immigration court and the adversarial system of immigration appeals, which requires immigrants to initiate a written appeal without guidance from the immigration judge. The result of this mismatch is that immigrants without lawyers almost never appeal. Appellate judges therefore hear an unrepresentative sample of cases and are unable to review immigration judges' decisions effectively. The problem of selection bias in appeals is a general one that matters in other types of adjudications as well: whenever some litigants are more likely than others to appeal cases of similar merit, appellate judges hear an unrepresentative sample of cases. I therefore conclude by calling for further research along similar lines in other areas of administrative adjudications.

In sum, this Article brings data to the question of when appeals courts can promote uniformity across inferior court judges. The immigration appeals system fails to do so because judges not only decide whether to order immigrants deported but also influence whether immigrants choose to appeal.

Part I describes normative theories of appeal and their implication that appeals should promote uniformity across inferior courts' judges. Part II introduces a measure of disparities across immigration judges. Disparities in immigration judges' removal decisions are more than three times larger than disparities in federal judges' decisions about whether to send a convicted criminal to prison. (6) Part III shows that the BIA and the federal courts of appeals do little to counteract these disparities: neither the BIA nor the circuit courts are more likely to reverse the decisions of harsher judges when immigrants appeal. By contrast, when the government appeals--which it does more than ten times less frequently than immigrants--the BIA more often reverses the decisions of generous judges than those of harsher judges. Part IV explains these findings by matching disparities in final relief rates with disparities in case length, as well as disparities in the likelihood that an immigrant has a lawyer. Generous judges are more likely to let cases last longer, and the immigrants appearing before them are therefore more likely to find lawyers and--crucially--to appeal and win on appeal. Part V, finally, draws out the implications of these findings. The Department of Justice could reduce disparities by facilitating applications for relief, providing lawyers to immigrants, and requiring the BIA to review a random sample of cases sua sponte. The courts of appeals could contribute by altering the standard of review for appeals from denials of continuances. Most broadly, these findings offer another reason to think critically about the implications of selection bias on appeal.

1. UNIFORMITY AND THEORIES OF ADMINISTRATIVE APPEAL

   Uniformity is both a goal of appeals processes and an indication that they are functioning properly. The two core rationales for the availability of appeals--error correction and lawmaking (7)--require appeals courts to increase consistency in legal decisions. Normative models of administrative justice carry the same implication for intermediate agency review and, more weakly, for judicial review of administrative adjudications. Together, these theories suggest that appeals processes should make the decisions of inferior court judges more uniform. The failure of immigration appeals to do so is troubling.

   Why make appeals available at all? First, an appeals court may detect errors made by a trial court. Steven Shavell famously argued that an appeals process may improve error detection by using litigants' knowledge about the accuracy of a judicial proceeding: when litigants believe that the outcome of a proceeding is wrong, they are...