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Thursday, December 01, 2005

Seventh Circuit Statistics That Should Shock You (But That Don't Surprise Me)

Anyone who clerks for a federal appeals court these days, but especially for certain circuits (e.g., the Second and the Ninth, where forty percent of the docket is immigration cases), will at some point encounter the joy that is "streamlining" -- the ultra-summary review procedures instituted by former Attorney General Ashcroft for certain immigration appeals from the IJ -- the Immigration Judge -- to the Board of Immigration Appeals (BIA). Sometimes, the BIA, in streamlining, summarily affirms IJ decisions that are literally incomprehensible, leaving the already overworked circuits with even more work to do (assuming, that is, that the petition for review even makes it past a "screening" panel).

But I digress... The reason why I bring this up today is because there's a fascinating new Seventh Circuit Posner opinion in a case in which the audio of the oral argument back in September made the rounds, where the government showed up and defended against an appeal by an alien ordered removed even though, as Judge Posner noted at oral argument, there was no conceivable merit to the government's position -- where the BIA totally, and obviously, messed up. As the opinion recounts:

In the present case, the Board has ordered an alien who is married to a U.S. citizen removed (deported) because he failed to produce a document that was both peripheral to his claim to be allowed to remain in this country by virtue of his marriage and already in the possession of the immigration authorities.

Now, the bigger problem isn't the government's position in this one case; lawyers make mistakes all the time, even government lawyers. The problem is that this (and, by this, I mean cases in which the circuits have to devote significant time to rejecting a truly and objectionably meritless position by the government in immigration appeals) happens all the time, and has become a truly endemic and systematic problem for nearly all of the circuits. As Posner notes:

In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits. The corresponding figure, for the 82 civil cases during this period in which the United States was the appellee, was 18 percent. Our criticisms of the Board and of the immigration judges have frequently been severe. [Citing cases; emphasis added]

Forty percent! I imagine the figures are at least as high, if not more so, in the Second and Ninth Circuits... Short of the Supreme Court, which self-selects cases likely to be overturned anyway, I'd be shocked to find any other class of cases in which the reversal rate is even close to that high in any other federal appeals court in the country.

Say what you will about the merits of streamlining, but this is a different problem: Streamlined or not, it seems clear to me, if only from actual experience, that the circuits are spending way too much time and energy reversing largely, if not completely, meritless administrative decisions in immigration cases, whether by the BIA or by the IJ, when the BIA streamlines. Given the ever-pressing debate over the proper allocation of judicial resources, the increasingly tightening budgets of the federal courts, and the ridiculously high error rate in these cases, I can't say it any better than Judge Posner did:

All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation’s immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals.


Posted by Steve Vladeck on December 1, 2005 at 12:59 PM in Constitutional thoughts, Steve Vladeck | Permalink


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Tracked on Dec 1, 2005 7:27:03 PM


Thanks for the pointer. And, lest I feel too left out, let me add my voice to the chorus shouting "Amen and amen." My friends at DOJ who have bbeen gang-pressed into writing briefs for the BIA appeals either laugh hystesrically or cry when talking about their experiences. Sometimes both.

Posted by: Simon | Dec 2, 2005 7:18:56 AM

Paul -- The worst part is where Judge Rovner, at the end of the government's argument, asks for one more question... If I'm the lawyer, I'm thinking "please make this stop."

But this begs a separate point -- the problem isn't the lawyers who show up to argue... the problem is more endemic than that. That's why Posner's opinion is so important -- we need statistics to know that this is more than a passing problem.

For example, consider the briefing shenaningans in the other case I cited in the post (as explained in this order).

Posted by: Steve Vladeck | Dec 1, 2005 9:08:12 PM

OH MY GOD!! You all have GOT to listen to this oral argument!!

I KNOW government lawyers like that. Aim about 27 or 28 minutes. The best exchange I've ever heard. I won't spoil it...

Posted by: Paul Gowder | Dec 1, 2005 9:04:03 PM

My god, what a slaughter on the gov't's oral argument.

"Why do they force you to come here and appeal something like this?"

"It's so cruel to send a lovely human being like you in here, to be the messenger of such madness, such nonsense! It's cruel."

Posted by: Paul Gowder | Dec 1, 2005 8:41:29 PM

I swear that in his UC podcast on Chevron reversals that Sunstein said the agencies won only about 55% of the time. Which seems extremely low to me, self-selected cases to the contrary. But this was a podcast - maybe it was a muffled 75% from Sunstein.

Posted by: David Zaring | Dec 1, 2005 7:30:14 PM

Steve, re: linking to Seventh Circuit cases. You can't open the document and link to the URL in the document. The URL that appear's in your browser is to a temp file.

Rather, when you go to click to open the opinion, you have to right-click the URL. This will give you the proper permalink.

Lots of people link to the temp file, and it's frustrating for everyone - especially since the court doesn't make how to link to an opinion clear. But the Seventh Circuit is weird about a lot of things.

Did what I just wrote make any sense? I don't think so. Let me give an example:

Go here: http://www.ca7.uscourts.gov/fdocs/docs.fwx
In "Recent Uploads," click the button for "Today."
You'll see one opinion. (USA v. Gipson, Ronald).
Hold your pointer over "Opinion."
This URL will show up: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1407_011.pdf
Click "Opinion."
Now look in your URL window.
This URL shows up: http://www.ca7.uscourts.gov/tmp/OA13B178.pdf
The URL with "tmp" in it is bunk. You have to link to the first URL. So this means you need to hold your pointer over the "Opinion" button, right click "save link as," and use that link in your blog post.

Did that make any sense?

Posted by: Mike | Dec 1, 2005 7:21:27 PM

P.S. It doesn't get interesting until the government lawyer gets up there -- about 11 minutes in.

Posted by: Steve Vladeck | Dec 1, 2005 7:14:03 PM

Oops -- Should've looked for it before. Here's the link to the mp3:

Benslimane Argument

Also, they changed the link to the opinion since my original post. The opinion can be found here

Posted by: Steve Vladeck | Dec 1, 2005 7:12:13 PM

Does anyone have a link to the audio?

Posted by: Simon | Dec 1, 2005 7:02:17 PM

Wow Mike, thanks for those statistics... I would've thought it was in that ballpark, but maybe not quite that low.

The really scary question is whether the reversal rate _should_ be even higher, since it's probably an understatement to say that the odds are usually stacked against the immigrant in these appeals...


Posted by: Steve Vladeck | Dec 1, 2005 5:36:05 PM

[I think it's a form of spam to link to one's blog in a comment, but I don't want to mess with the html to create a table here. Apologies.]

These stats are even more shocking when one considers overall reversal rates on appeal. The stats are herehttp://federalism.typepad.com/crime_federalism/2005/11/odds_of_winning.html.

Posted by: Mike | Dec 1, 2005 4:59:03 PM

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