After the Flood: The Legacy of the “Surge” of Federal Immigration Appeals

Caplow, Stacy | January 1, 2012

For many years, the big news in the United States courts of appeal was the skyrocketing immigration caseload. For courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the court to regain some control over its swollen docket. While this administrative strategy has rescued the court from drowning, the flow of cases continues, somewhat abated, but with enduring force. This so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration cases at the hearing stage—reading transcripts and immigration judge decisions—federal judges increasingly found fault with immigration adjudication, criticizing the quality of both the judging and the lawyering. The glaring attention generated public reaction, forcing some reforms from the inside and continuing pressure from the outside. This Article examines the legacy of this exposure and its positive impact on the quest for better access to justice for immigrants facing removal.