With the spring law review submission process winding down, I’ll be spending the next few months trying to catch up on covering the terrific new administrative law scholarship via this Administrative Law Bridge Series. In this post, I’d like to highlight three important empirical studies on immigration adjudication.
Full disclosure: Immigration adjudication is an area where I spend some of my research time (see, for example, here and here), and I also co-chair the ABA AdLaw Section’s Adjudication Committee. Later this month I plan on blogging more about my immigration-focused study of court-agency dialogue and the ordinary remand rule, which was recently published in the George Washington Law Review.
Now onto the empirical studies:
First, in A National Study of Access to Counsel in Immigration Court, forthcoming in the University of Pennsylvania Law Review, Professor Ingrid Eagly and Steven Shafer tackle the important issue of legal representation in immigration court. Here’s a summary of their findings, from the SSRN abstract:
This Article presents the results of the first national study of access to counsel in United States immigration courts. Drawing on an extensive data sample of over 1.2 million deportation cases decided between 2007 and 2012, we find that only 37% of immigrants overall, and a mere 14% of detained immigrants, secured representation. Nationwide, only 2% of removal respondents obtained pro bono representation from nonprofit organizations, law school clinics, or large law firm volunteer programs. Barriers to accessing counsel were particularly acute in immigration courts located in rural areas and small cities, where almost one-third of detained cases were adjudicated. Moreover, we find that immigrants with attorneys in immigration court do better: after controlling for numerous case and respondent characteristics that could affect case outcomes, our regression analysis reveals that the odds are 15 times greater that an immigrant with representation, as compared to one without, sought relief, and 5.5 times greater that they obtained relief from removal. In addition, we show that involvement of counsel was associated with certain gains in court efficiency: represented respondents did not use valuable court and detention time to seek counsel, they were more likely to be released from custody, and, once released, were more likely to appear at their future deportation hearings. This research provides an essential data-driven understanding of immigration representation that should inform current efforts to expand access to counsel, while improving court efficiencies.
This study is extremely important for the current debate about how to improve immigration adjudication by decreasing nationwide disparities in the administrative process (see next study) as well as by protecting the rights of those involved in the process.
Second, in The Failure of Immigration Appeals, also forthcoming in the University of Pennsylvania Law Review, David Hausman examines the effectiveness of the Board of Immigration Appeals and the federal courts of appeals at promoting uniformity and consistency among immigration judges. Here’s the summary, from the SSRN 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.
I can see why the Penn Law Review editors decided to publish both of these pieces, as their findings and recommendations reinforce each other.
Hausman’s findings also underscore the importance of federal courts remanding issues to federal agencies and trying to engage in a dialogue with agencies on remand. My George Washington Law Review article identifies a number of novel tools courts have developed to enhance their dialogue with agencies on remand. And in an article recently published in the Minnesota Law Review, Stephanie Hoffer and I explore how to utilize remand and these tools in the tax adjudication context—another area where many individuals navigate the administrative and judicial process without representation—in order to have a more systemic effect on agency decisionmaking. I’m currently working on a follow-up piece in the immigration adjudication context that examines remanded cases to see whether and how the Board of Immigration Appeals responds to the federal circuit courts’ attempts to engage in dialogue. The findings from the Hausman study will be invaluable there.
Finally, another empirical study by Professor Eagly—Remote Adjudication in Immigration, which is forthcoming in the Northwestern University Law Review—looks at the use of video teleconferencing for immigration adjudication hearings. The SSRN abstract nicely summarizes the methodology and findings:
This Article is the first large-scale, empirical analysis of the consequences of televideo on judges, lawyers, and litigants in immigration cases. Based on a natural experiment with televideo adjudication in the federal immigration courts, it reveals an outcome paradox: detained televideo litigants are more likely than detained in-person litigants to be deported, but not because judges unfairly disadvantage televideo cases at trial. Instead, these inferior results occur because detained litigants assigned to televideo courts exhibit depressed engagement with the adversarial process — they are less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure.
Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants are less likely than other litigants to take advantage of procedures that could help them. These include: (1) litigants’ perception that televideo is unfair and illegitimate; (2) technical challenges in litigating claims over a television screen; and (3) the literal barrier that remote adjudication places between the immigrant respondent and other courtroom actors. These findings invite reexamination of the conventional judge-focused theories about remote adjudication and begin an important conversation about technology’s threat to meaningful litigant participation in the adversarial process.
Last year the Administrative Conference of the United States issued an important report and accompanying recommendations on best practices for using video teleconferencing for agency adjudication hearings. Professor Eagly’s empirical findings suggest that even more work may need to be done.
All three of these empirical studies underscore the need for critical analysis and reform of the immigration adjudication process. It seems like most of the political focus of late has been on immigration law and policy; immigration administration, however, should also be part of any political or legislative reform package.