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.

Amen.