Why are so Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review

Abstract

Since 2002 the U.S. Courts of Appeals have been experiencing a dramatic surge in immigration cases. More people than ever before are filing petitions for review to challenge decisions of the Board of Immigration Appeals (BIA). These petitions now account for a substantial proportion of the overall caseload in the Courts of Appeals, especially in the Second and Ninth Circuits. This immigration surge coincides closely with an expansion in the BIA's use of summary procedures, and an increase in the volume of BIA decisions being issued. While the surge is partly a simple result of the higher volume of BIA decisions, it is also caused by an increase in the proportion of those decisions that are challenged. The reasons for this change in proportion have been the object of considerable debate. This article uses data from the federal courts, the Department of Justice's Executive Office for Immigration Review (EOIR), and the Department of Homeland Security (DHS) to explore a number of variables that might be responsible. It proposes the following tentative hypothesis as a starting point for further research:

First, the expansion of summary procedures caused the BIA to begin denying a larger proportion of aliens' appeals in 2002. This meant that a larger proportion of the BIA's decisions resulted in final orders of expulsion, and thus that a larger proportion of these decisions were subject to being challenged in federal court. Second, the increase in final expulsion orders has been felt mainly by aliens who are not in detention. Detained aliens are often obstructed from litigating in the federal courts by such factors as lack of access to counsel; those with criminal convictions often face jurisdictional bars that limit the issues they can challenge through petitions for review. Consequently, the increase in BIA decisions involving non-detained aliens has further increased the proportion of BIA decisions being challenged. Finally, there has been a fundamental shift in behavior on the part of immigration lawyers and their clients. The high volume of BIA decisions (which allows lawyers with low-paying clients to utilize economies of scale) and a general dissatisfaction with the BIA's review has caused immigration lawyers to move significant segments of their practices into the federal courts for the first time. This has had its own effect on the proportion of BIA decisions being challenged.