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Wednesday, November 02, 2005
More on Alito & Abortion (Yuck!)
As promised, here's a pass-through link to the piece that The New Republic solicited from me. I think you still need to register. Try this one too.
I confess that I was impressed with the New York Times's effort to read the tea leaves from Alito's votes in immigration cases that touched upon abortion. Ultimately, the argument seemed indeterminate but interesting--and anyone who has clerked on a circuit court knows how hard it is to revisit BIA and IJ decisions, owing to harsh standards of review.
As I mentioned, the full piece that I wrote (ultimately cut) tried to do more than rehash the abortion datapoints. You can read the rest here.
Posted by Ethan Leib on November 2, 2005 at 01:26 PM in Article Spotlight | Permalink
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Things have changed somewhat in recent years and now hundreds and hundreds of immigration cases end up in the courts of appeals and many are overturned. Why? Becuase the BIA now almost never actually reviews cases but rather rubber-stamps them. This was Ashcroft's way of eliminating a backlog- he fired the BIA board members who often found for asylum seekers and instituted a policy of essentially no review. So, now all review is done in the appeals courts. And, many IJ decisions are so bad that they are, in fact, not that hard to review for any judge who wishes to do so. The standards are also not too high if actually interpreted as they should be since the original standards are quite low. For example, one must show that there is "reasonable probability" that one will be persecuted, which is often take to be even a one in ten chance. This is obviously much lower than more likely than not. To reverse a decision on this, the appeals court has to find that there was evidence compelling the opposite conclusion. That seems high, but since the original burden was so low, it's not actually a very high standard- the court doesn't have to find evidence that compelles the conclusion that the applicant will be persecuted, only evidence that compelles the conclusion that persecution is reasonably probably, and that isn't that high of a burden. Judges are often unwilling to do this, in part becuas they are confused (as their decisions often show) or because they are unsympathetic to asylum applicants (as their decisions often show) or they think the only real refugees are ones fleeing communism (as their decisions often show). The rules are somewhat different for different parts of asylum cases (and other immigration cases are also different) but there is often quite a bit of room for judges to act if they are willing to do so, especially given that quite common awful quality of IJ decisions and the lack of review by the BIA. (My impression here comes from doing quite a lot of work in the area and in particular reading dozens of appeals court decisions and dozens and dozens (perhaps hundreds) of IJ decisions from all over the country. Some IJ's are good judges, and they are all over-worked. But, many are shockingly bad.)
Posted by: Matt | Nov 2, 2005 9:59:32 PM
I just had a look at the Times article and the asylum cases by Alito mentions are, to my mind, good ones. It's an example of how a judge in this area can, if he wishes, help craft the law in useful ways. I don't know what else can be drawn from them, but I'd actually read the first case (I didn't pay attention to the judge when I'd read it) and it's a high-quality decision.
Posted by: Matt | Nov 2, 2005 10:03:50 PM
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