Understanding Judicial Decision Making in Immigration Cases at the U.S. Courts of Appeals*

Article excerpt

Immigration is an increasingly important area of decision making for federal judges. The recent increase in appeals of immigration cases to the courts of appeals raises the question whether judges deciding these cases behave in ways consistent with the extant attitudinal literature or if other factors, such as case characteristics and institutional concerns, weigh more heavily on the decision making of judges. It is possible, for example, that the country of origin for the alien, or the panel on which a judge serves, also influences decision making. Using an original data set of immigration cases drawn from the Third, Fifth, and Ninth circuits, this article presents models that examine whether and how ideology influences the decision making of courts of appeals judges in immigration-removal cases, given other case and institutional factors that might temper the effects of ideology.

While the candidates in the 2008 presidential race were more likely to focus on the economy than immigration, federal judges are less able to avoid dealing with the issue (Preston, 2008). Immigration cases are an increasing part of the federal caseload. Figure 1 shows the increase in immigration appeals as a percentage of all federal appeals for a ten-year period. There is an increase both in the number of immigration appeals over this period and in immigration appeals as a percentage of all appeals. This means not only that more immigration cases are being decided in the courts of appeals today, but also that immigration appeals are taking up a larger percentage of the federal appellate docket now than in years past. The increasing importance of this area of law, along with the increasing rhetoric surrounding the issue of immigration, makes it an area ripe for study by judicial scholars (MacLean, 2009).

Despite the increasing importance of immigration cases to the courts of appeals, relatively few empirical studies have examined this area of law. Studies that do consider decision making in immigration cases examine the behavior of those serving as immigration judges or on the Board of Immigration Appeals, or use immigration as a vignette to understand publication decisions.' This article seeks to understand decision making in this area of law, including how cases reach the courts of appeals from executive -branch administrative agencies, and how both case and judge characteristics may influence decision making in immigration cases. To understand decision making in immigration cases at the courts of appeals, we must first draw on the existing judicial decision- making literature.


The behavior of courts of appeals judges has been a subject of study to scholars for quite some time. Application of the attitudinal model to explain the behavior of these judges is not without its critics.2 Certainly the discipline is replete with studies examining the effects of individual characteristics on the decision making of courts of appeals judges (see, for example, Ashenfelter, Eisenberg, and Schwab, 1995; Davis, Haire, and Songer, 1993; Songer, Davis, and Haire, 1994; Walker and Barrow, 1985). This literature considers not only the effect of these characteristics on an individual's own vote, but also how working with political minorities can influence the decision making of other judges on the panel (see Cross, 2007; Farhang and Wawro, 2004; Revesz, 1997; Cross and Tiller, 1998; Law, 2005, 2006). The influence of principalagent relationships also should not be ignored (Hettinger, Lindquist, and Martinek, 2004). Scholars have demonstrated that the environments in which federal judges make their decisions can have varying effects on their behavior (Scott, 2006). Both the culture of the circuit and the dynamics of small groups within courts of appeals panels have been shown to affect judicial decision making (Cross, 2007; Farhang and Wawro, 2004; Goldman, 1975; Green and Atkins, 1978; Hettinger, Lindquist, and Martinek, 2004; Kastellec, 2007; Songer, 1982). …