Judging the Judges: Appellate Review of Immigration Decisions

Abstract

Immigration can be a divisive issue and the federal appellate courts must decide thousands of immigration cases every year. The outcomes of these decisions have large ramifications for the immigrants facing deportation and the executive agencies tasked with enforcing immigration law. The appellate judges adjudicating these cases hold a wide array of beliefs about the efficacy of the current immigration system. While the scope of appellate courts’ review of immigration decisions appears rigidly circumscribed by statute, the true breadth of appellate court review is much more porous. Thus, the governing framework provides judges with a fair amount of latitude when deciding how they are going to assess an immigration case. This article examines how judges’ immigration predispositions can factor into their decision-making processes. The goal of this article is not to fault judges for expressly or implicitly bringing to bare their perceptions on immigration matters. Indeed, even the sincerest effort to remain neutral cannot erase the individual beliefs and experiences that necessarily couch a judge’s decision-making lens. Rather, this article seeks to identify instances, on both sides of the spectrum, where appellate judges’ viewpoints may lead to outcomes that do not comport with the legal framework of their oversight prerogative. A measured degree of divergence among judicial approaches to immigration cases can be beneficial. However, decisions that stray too far from the established framework negatively impact immigration law and the adjudication process in a number of significant ways.

Keywords: immigration, immigrant, BIA, Board of Immigration Appeals, standard of review, scope of review, judicial discretion, bias, asylum, deportation, removal, appellate court, appeals court, appellate review