Adam Liptak of the Times caught up today on the blawg-headlining Posner opinion from a few weeks back on immigration appeals. Considering the lead-time, I’m surprised at the weakness of the responses to Posner’s opinion offered by the BIA’s defenders. The bottom line answer to appellate anger: “You guys are falling victim to the fundamental attribution error.”
Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.
“The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal,” Mr. Cohn said. “They’re only seeing a fraction of the cases, and only a small fraction of those give rise to criticism.”
I think this response is misleading.
First, the article tells us that immigrants appeal 7 to 30 percent of the time. This is the source of Cohn’s intuition that only the “bad cases” for the government end up on appeal. But I can’t imagine that Cohn’s equation of the failure to appeal with being “correctly decided” has much basis in known fact. It might be that Cohn is correct. But I’d assume instead that costs (financial, emotional, and otherwise) prevent appeals, and not being compelled by the force of the government’s arguments.
Second, just because the government wins 90% of the time in the appellate courts doesn’t mean the BIA is right 90% of the time on the merits. Most of those wins depend either on procedure or on the operation of the standard of review, which is why the overall success rate for the government on appeal is exceedingly high. Even this success rate appears to depend on the amount of attention appellate judges pay to BIA procedures. As Posner’s opinion revealed, in the Seventh Circuit in 2005 the government’s win rate was around 60% in BIA cases, as compared to 82% in all other civil cases.
Third, Cohn’s rebuttal is aimed at the wrong target. Almost all judicial review of administrative agency decisionmaking will produce the pyramid structure he describes, where the “worst” cases are the most likely to result in published appellate reversals. But what is striking about the BIA is (1) that it has appeared, to date, undeterred by Circuit Court tongue-lashing; and (2) that the problem is occupying more and more appellate time. That’s why we get statements like this one from Posner’s opinion: “the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. Whether this is due to resource constrains or to other circumstances beyond the Board’s and the Immigration Court’s control, we do no know, though we note that the problem is not of recent origin.”