My colleague Scott Rempell has a new article posted on SSRN: Judging the Judges: Appellate Review of Immigration Decisions. While not focused on a clear split between circuits, it does focus on the diversity of federal appellate court decisions regarding the standard of review (and degree of deference) for immigration decisions. Here is the 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.
This is a great contribution to the literature. Immigration policy, and deportation in particular, are contentious issues today in the United States, with strong arguments in each side of the issue; moreover, the stakes are high enough in individual cases to evoke passionate responses toward potential outcomes. Partly in response to this potential for strong reactions, our legal system has a number of procedural safeguards surrounding immigration removals, the most objective of which is federal appellate review of the decisions, after intermediate review by the BIA. Yet even this seemingly far-removed, purely legal review has a number of features that distinguish it from other types of appellate decisionmaking. The sheer number of appeals, the framework for the scope of review and the degree of deference, and the manner in which appellate courts frame the questions in individual cases, all set these cases apart from normal circuit court review. Combined with the structural feature of direct review to the circuit courts from the agency tribunal, without an intermediate trial, the task of the appellate courts in these cases becomes particularly important and unique, and invites more searching inquiry into how such decisions proceed.
Rempell's article pursues this inquiry, analyzing the unique structural and procedural components of this type of review, and several decision mechanisms or rhetorical techniques that introduce discretion, and thus potential bias, into this appellate review. In the end, appellate review of immigration removal decisions includes enough of these discretionary decisional mechanisms to permit appellate judges to follow their personal predispositions or policy agendas regarding immigration as a general matter when deciding any given case, cloaking the tribunal’s bias in these external aspects of the immigration review process.
For those interested in appellate review or in immigration law, I highly recommend downloading and reading Rempell's article. Very helpful and worthwhile.