Judge Alito and Immigration

Last week, Yale Law School professors and students who oppose the nomination of Samuel Alito have published a paper called the “Alito Project.” (Link) It analyzes Judge Alito’s judicial decisions, but does not purport to do so objectively. Indeed, many of the participants in the project were quoted in the New York Times last month as openly opposing Judge Alito.

As I have posted on Judge Alito’s immigration opinions in the past, see here and here, I was curious to see how the Alito Project would portray his immigration decisions. Unfortunately, I found myself disappointed with the manner in which Owen Fiss, Bruce Ackerman and other members of Yale community represent Alito’s immigration decisions.

The paper begins the immigration discussion with a patently false attempt to contrast Alito with other federal judges. It begins with the statement that “Judge Alito’s immigration opinions suggest a belief in a smoothly functioning system that merits judicial deference. This vision of the immigration system stands in stark contrast to that of other federal judges.” It then references an opinion by Judge Posner that the Seventh Circuit has reversed a “staggering 40 percent” of BIA cases in the past year. The purpose of this lead paragraph is quite obviously to suggest that Judge Alito is miserly in reversing immigration decisions as compared to other appellate judges.

So what are the actual numbers? A comparison with other federal appellate judges reveals that Judge Alito is 44 percent more likely to reverse the BIA than the typical federal appellate judge. Judge Alito has affirmed the BIA in seven of eight deportation decisions, and affirmed the BIA in seven of nine asylum cases. That’s a reversal rate of 3 out of 17 cases, or 18 percent. That may sound harsh to the folks who wrote the Alito Project. But it is not. According to an article in the New York Times today, the government wins more than 90 percent of immigration cases in federal appeals courts. So while the average federal appeals judge will reverse no more than 10 out of 100 immigration cases, Judge Alito would on average reverse 18 out of 100 immigration cases, or 44 percent more cases than the typical appellate judge.

The immigration section of the Alito Project concludes with a back-handed compliment to Judge Alito. It states with negative overtones that “Judge Alito has voted to deny an asylum request or to uphold an order of deportation in nearly all of the immigration cases about which he has written. He has followed the law when it was clear but has deferred to the government position in virtually all cases where it was not.” That is precisely what black-letter administrative law requirements of judicial deference require: No deference where Congress has clearly spoken and the agency departs from that mandate, but deference where the agency has rendered a decision that is a permissible interpretation of the statutory obligation.