RATIONING JUSTICE?: THE EFFECT OF CASELOAD PRESSURES ON THE U.S. COURTS OF APPEALS IN IMMIGRATION CASES

Anna O. Law, DePaul University

Abstract

Beginning in late 2003, the U.S. Courts of Appeals for the Second and Ninth Circuits experienced a deluge of immigration cases caused by changes in another part of the immigration bureaucracy. How did these two circuits, especially the Ninth circuit and its personnel, which handle more than 50% of all immigration appeals nationwide, respond to the "immigration surge" as it came to be called? Using interview data from 25% of the active judges on the court and some central staff, the article examines the series of internal experiments in case management that the Ninth Circuit was forced to undertake in the face of the immigration cases, and assesses the effect of the surge on the court itself as an institution, its personnel, and immigrant litigants. The addition of judgeships and other legislative-based solutions were not viable. The article concludes that the Ninth Circuit's incremental strategies for coping with its immigration caseload may have deleterious effects on political asylum applicants, and especially those who are pro se applicants, by altering the nature of judicial review and moving the Courts of Appeals toward the practices of a certiorari court.