The Failure of Immigration Appeals

Abstract

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. Yet this Article demonstrates 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, either by the Board of Immigration Appeals or a federal Court of Appeals.Why? To explain this puzzling finding, I use an internal administrative database, obtained by Freedom of Information Act request, to track the decisions of initial immigration judges on appeal. 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 of Immigration Appeals 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, point the way to reform. 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, allowing the Board more often to review judges’ decisions about continuances, which are rarely appealed. Finally, and most broadly, the government should appoint counsel for immigrants in removal proceedings.