Immigration, the Courts, and Statistics

By David North on March 4, 2016

Most migrants do not wind up in our circuit courts of appeal, but what the judges decide is not only important to the aliens involved, it often sets or refines our immigration policies.

With that in mind, I was looking over a set of circuit court decision statistics the other day and noted the remarkable variation in the outcomes of migrant cases in the different circuits. The Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) was 10-times as likely to rule in favor of aliens as the Fifth Circuit (Louisiana, Mississippi, and Texas) during CY 2015.

Alien usually lose (for reasons I will explain in a minute) at the circuit level, but 25 percent of the cases in the Seventh Circuit were in favor of aliens, compared to only 2.5 percent in the case of the Fifth. This led me to wonder if courts that were more likely to decide in favor of aliens attracted more cases than courts that did not. In other words, do judges who tilt toward the migrants thereby create more work for themselves? The answer is: apparently not, as the table below shows.















Circuit Courts Ranked by Percent of Pro-Migrant Decisions Percent of Pro-Migrant Decisions by This Court Percent of National Illegal Alien Population Percent of Migration Cases Appealed, Nationwide Ratio of Appeals to Population (+ or -)
Seventh 25.00% 6.60% 2.10% -
Ninth 18.10% 36.40% 48.70% +
Tenth 16.40% 4.40% 3.20% -
First 13.90% 2.20% 1.90% -
Third 11.10% 6.40% 6.10% -
Average 10.8%      
Eleventh 8.50% 5.20% 4.30% -
Second (tie) 6.90% 9.30% 15.20% +
Sixth (tie) 6.90% 3.30% 3.80% +
Fourth 6.30% 8.80% 5.80% -
Eighth 4.30% 2.60% 2.40% -
Fifth 2.50% 14.80% 6.40% -


















Sources: Columns 2 and 4 are based on CIS calculations of data from Immigration Law Advisor, Vol. 10, No. 1, January 2016, p. 5. Column 3 is from the Migration Policy Institute.







The table shows the distribution of the estimated illegal alien population among the circuits, the percentage of appealed cases by circuit, and the tilt of the circuit courts. The average of the circuit court decisions was 10.8 percent in favor of aliens.

If the attitude of the courts strongly influenced the flows we would expect to see more cases in the circuits with relatively higher incidences of favorable opinions than the illegal alien population would suggest, and fewer cases in the circuits with less favorable decision averages.

It does not work out that way; we find that only five of the 11 are arrayed as expected. There is only one plus (+) sign above the average (the Ninth) and four minus signs (-) below it.

Getting back to the earlier point about the range of decisions, circuit by circuit, the range would appear to be less dramatic if we instead looked at the percentage of times that the government wins, and that would be from 75.0 percent to 97.5 percent.

One of the reasons that the tilt of the circuits does not seem to affect the number of cases filed is that most aliens do not have an option of filing in one locale rather than another, so the decision becomes "shall I appeal a negative decision", rather than a decision as to where to file.

The states opposing Obama's administrative amnesty, DACA, had more options. That was a case that could be filed in any federal court in the land, so they not only chose a court in the Fifth Circuit (where aliens lose 97.5 percent of the time), but they also picked a one-judge division, in the southernmost part of Texas.

Circuit courts usually have the last word in migrant cases, as they are rarely overturned by the Supreme Court. The usual route of cases is from a decision of an immigration judge, to the Board of Immigration Appeals (BIA), and from there to the circuit courts. Federal district courts sometimes play a role, but the main path is from BIA to the circuits.

I said earlier that aliens usually lose at the circuit court level; this is because they have already lost at both the IJ and the BIA levels and are, by definition, tough cases to win.







I am grateful to CIS intern Meredith Vaughan for her research assistance.