The reversal rate for BIA cases in all federal circuit courts for 2009 averaged 11.12%, according to the EOIR Immigration Law Advisor, vol. 4, no. 2.  The reversal rate has dropped every year for the last four years: 2009 (11.12%), 2008 (12.6%), 2007 (15.3%), and 2006 (17.5%). 

For aliens appealing adverse BIA decisions, the most difficult circuit court for 2009 was the Tenth Circuit, with a reversal rate of 1.8%–down from 18.0% in 2006!  The next most difficult court for immigrants was the Fourth Circuit (3.3%), followed by the Fifth Circuit (4.0%), the Second Circuit (5.5%) and the First Circuit (5.6%).  The courts with the highest reversal rates in 2009 were the Ninth Circuit (17.2%), the Third Circuit (16.4%), and the Seventh Circuit (14.3%).  Reversal rates for the remaining courts are: Sixth Circuit (8.6%), Eighth Circuit (7.7%), and Eleventh Circuit (7.1%).

There may be reason to question the accuracy of EOIR’s numbers:  The report separately lists reversals in federal circuit courts for the month of November 2009.  For the Fourth Circuit, the report states that the court decided 16 BIA appeals in November, and that all 16 were affirmed.  However, in at least one case–Baharon v. Holder, decided on November 24, 2009–the Court reversed the BIA’s decision.  This oversight might raise questions about the accuracy of EOIR’s reporting.  

Assuming that the overall EOIR numbers are accurate, there are different possible explanations for the varying reversal rates.  The most obvious reason is that some courts are more conservative than others on immigration issues.  Another possibility is that the quality of the immigration courts varies from jurisdiction to jurisdiction.  It is certainly true that some courts are more likely to grant asylum than others (for example, according to the TRAC database, New York IJs, on average, denied asylum in 31.2% of asylum cases; in Atlanta, IJs denied 85.7% of asylum cases).  This discrepancy could, in turn, be explained in different ways–the philosophy of the individual judges, the varying degrees of attorney representation in different regions of the country, the country of origin of applicants in the different jurisdictions.  The bottom line is this: In juridictions where the IJs make better (i.e., more legally proper) decisions, reversal rates in the federal courts should be lower. 

Theoretically at least, the BIA should mitigate discrepancies originating with the Immigration Judges.  So all things being equal, we should be able to attribute the varying reversal rates at the circuit level to the circuit courts themselves.  Of course, all things are rarely equal, and the BIA does not do enough to correct aberrant IJ decisions.  I think that the different reversal rates may be attributed both to the circuit courts and the Immigration Judges.  Maybe I am biased (I used to clerk for the Arlington, Virginia Immigration Court, located in the beautiful Fourth Circuit), but I believe the low reversal rate in the Fourth Circuit is partly due to the high quality of judges in Arlington and Baltimore.  Both those courts are relatively small and close to EOIR headquarters, and judicial appointments in both cities are coveted.  Not that I’m saying a 3.3% reversal rate is a good thing.  It’s just that I can’t totally blame the Fourth Circuit for it.