Notice & Comment

Marouf, Kagan & Gill on Empirical Realities of Immigration Stays (AdLaw Bridge Series)

Being at the ABA Administrative Law Conference this week has me thinking more about the terrific empirical work scholars are carrying out to better understand real-world administrative law.  One of my favorite such empirical projects from this year is entitled “Justice on the Fly: The Danger of Errant Deportations” by Fatma Marouf, Michael Kagan , and Rebecca Gill, which was published in the Ohio State Law Journal earlier this summer.
My home institution’s journal had the good fortune of publishing this piece, and I was honored to pen  a short response .  Not only do Professors Marouf, Kagan, and Gill shed considerable light on the disparities in immigration stay practices among the federal courts of appeals; they provide a great template for similar empirical projects in administrative law.  I’ll let the abstract speak for itself:
The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the Court. This Article responds to Justice Kennedy’s request for data and sheds light on the doctrinal controversies surrounding stays by presenting groundbreaking empirical analysis of 1646 cases in all the circuits that hear immigration appeals. It offers a singular window into an arena of adjudication where decisions are rarely articulated in writing. Among our most important findings, the circuit courts denied stays of removal in about half of the appeals that were ultimately granted, an alarming type of error that could result in people being errantly deported to countries where they risk persecution or torture. Our results also suggest that legal doctrine makes an important difference in how accurately courts identify which cases merit a stay, but that no magic bullet exists to avoid errors. In order to adopt an effective approach to stays of removal, courts must confront an important value judgment about whether to err on the side of preventing wrongful removal or on the side of avoiding delayed deportation.

As I note in my response, answering Justice Kennedy’s empirical questions in Nken was no simple task, as stay decisions seldom make their way onto Westlaw or Lexis. So the authors had to mine the PACER dockets of 1,646 cases in all circuits that hear immigration appeals. This ambitious project was definitely worth it, as the findings they uncover are fascinating and important — three of which I focus on in my response: the disparity in stay grant rates among circuits, the variation by circuit in government opposition and immigration attorneys’ stay request practices, and the differences in Type I and Type II errors (or false positives and false negatives, respectively) among circuits that apply the distinct legal standards.

Definitely go read the article to get the full picture, but I thought I’d share the two summary tables from my response.  The first depicts the circuit-by-circuit disparities:
Table 1. Circuit-by-Circuit Summary
Court of Appeals Sliding-Scale Approach Stay Grant Rate Stay Request Rate Gov’t Opposition Rate Petition Grant Rate
First Circuit Unclear 29% 44% 42% 4%
Second Circuit Yes * 99% 44% 6%
Third Circuit No 21% 48% 90% 7%
Fourth Circuit No 14% 30% 88% 7%
Fifth Circuit Unclear 4% 49% 90% 3%
Sixth Circuit Yes 48% 70% 69% 7%
Seventh Circuit Yes 31% 38% 46% 20%
Eighth Circuit Unclear 10% 58% 80% 6%
Ninth Circuit Yes 63% 94% 71% 10%
Tenth Circuit Unclear 6% 50% 18% 8%
Eleventh Circuit No 6% 25% 99% 9%
Total: 26% 55% 71% 8%
* The Second Circuit has automatic temporary stay practice.
The second table depicts how the distinct standards correlate with different types of errors:
Table 2. Type I and II Errors by Circuit
Court of Appeals Sliding-Scale Approach Stay Grant Rate Petition Grant Rate Type I  Error Rate Type II Error Rate
First Circuit Unclear 29% 4% 27% 50%
Second Circuit Yes * 6% * *
Third Circuit No 21% 7% 14% 0%
Fourth Circuit No 14% 7% 12% 71%
Fifth Circuit Unclear 4% 3% 4% 100%
Sixth Circuit Yes 48% 7% 41% 0%
Seventh Circuit Yes 31% 20% 16% 21%
Eighth Circuit Unclear 10% 6% 10% 100%
Ninth Circuit Yes 63% 10% 58% 47%
Tenth Circuit Unclear 6% 8% 3% 67%
Eleventh Circuit No 6% 9% 5% 89%
Total: 26% 8% 22% 47%
* The Second Circuit has automatic temporary stay practice.
I’ll conclude this post the same way I ended my response:
[T]he study’s findings confirm Justice Kennedy’s intuition about the importance of empirical data in this area of immigration law—and in the context of competing legal standards more generally—“so that experience can demonstrate whether [Nken] yields a fair and effective result” and that “Congress can evaluate whether its policy objectives are being realized by the legislation it has enacted.” Justice on the Fly provides an excellent model for how such empirical study can be conducted. Hopefully other scholars will follow suit, and the various actors here (courts, Congress, the Executive Branch, and immigration attorneys) will apply the insights uncovered to improve federal immigration law, policy, and practice.
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