Virginia, US

Readers of this blog will likely be no more surprised than we were at the title of a recent article, “Immigration appeals process lacks consistency, fairness, research shows” (posted on, of all places, the phys.org website). Nonetheless, the article’s first sentence prompted us to take a closer look at the underlying study the article summarizes: “The federal immigration appeals process lacks consistency because it reviews a small and skewed sample of cases, according to new Stanford research.” How can this be?

David Hausman, a Ph.D. candidate in political science at Stanford University (who has already been awarded a J.D. by that same institution), undertook a study of cases denied by U.S. immigration judges that were appealed to the Board of Immigration Appeals. After carefully studying a government database he obtained through a request pursuant to the Freedom of Information Act (FOIA), Hausman found that in some immigration courts, the chances that an immigrant will be ordered deported can vary by up to 40 percentage points depending on which immigration judge is randomly assigned to hear the case. Scholarship on appeals and on administrative adjudication would suggest that the appeals process should counteract such disparities, but that is not true in the case of BIA appeals.

Instead, the data indicates that decision-making by the BIA and the federal courts of appeal fails to promote uniformity and consistency in decision-making by immigration judges. In fact, the removal orders of what Hausman terms “harsher” immigration judges—those who order removal up to three times as often as their colleagues—are no more likely to be reversed on appeal, either by the BIA or a federal appeals court, than those of their more generous colleagues.

Hausman concludes that this is because these two appellate bodies actually review an unrepresentative sample of cases. The immigration judges with the higher deportation rates also tend to be impatient by nature, and are more likely to render a decision quickly, before the immigrant has had the chance to find an attorney. Immigrants without lawyers rarely file appeals. More patient judges, by contrast, usually give immigrants much more time to find lawyers.

Accordingly, the BIA reviews (and, in turn, reverses) a disproportionate number of cases decided by more “generous” immigration judges. But the BIA rarely reviews the removal orders of immigrants who might actually have meritorious claims, but who lacked lawyers at the beginning of their proceedings and who appear before harsh, impatient immigration judges.

While there is no similar study of appeals to the Administrative Appeals Office of denials of visa petitions by U.S. Citizenship and Immigration Services, there may very well be a similar correlation between representation at the petition stage and success on appeal at the AAO.

The complete article will be published in an upcoming issue of the University of Pennsylvania Law Review. It can currently be downloaded from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2568960.