Friday, August 1, 2014
Abstract: The Second and Ninth Circuits are the two U.S. courts of appeals with the greatest recent increase in immigration appeals. This paper describes the mechanisms, particularly screening panels, that each court uses to handle these increased appeals, and then portrays the proportion of the output of these courts these appeals constitute and describes, for each court, first, differences in outcomes between the courts' use of published precedential opinions and non-precedential dispositions, and second, differences in support of aliens' appeals by individual judges, including district judges and out-of-circuit judges who sit with the courts of appeals. This paper provides a very rough cut at what these two courts have done, using only a rudimentary count of votes as pro- or anti-alien. A more sophisticated study would separate various types of claims (asylum, withholding of deportation, etc.) and countries of origin.
One of the findings of the paper is that noncitizens do not fare as well in unpublished dispositions as published opinions. There also is evidence of "case fatigue" by judges frequently exposed to certain kinds of cases and become a bit jaded. Last but not least, the paper finds that "Among the Ninth Circuit appellate judges, Judges [Harry] Pregerson and [Stephen] Reinhardt provided the greatest support for petitioners."