Clerk Applicants Who Know Immigration Law:

Several circuits, I know, get lots of immigration cases. (This 2006 item reports that immigration cases made up 40% of the Ninth Circuit's caseload; I imagine that many of these cases would get handled by staff attorneys, but many end up in the clerks' hands.) Yet my sense is that many incoming law clerks haven't taken immigration law, which is a pretty complicated subject.

This made me wonder: Are there circuit judges who give some preference -- not a huge preference, I'm sure, but some -- to applicants who have shown substantial knowledge of immigration law, for instance by taking a class on the subject and by writing their student Note on it? Obviously, the judges would still expect such applicants to have high grades. But my thought was that some judges might relax their grade standards in some measure if the applicant has this valuable knowledge base. If you know of some such, please mention this in the comments, or e-mail me at volokh at Many thanks!

Nick (mail):
I am now on my second Court of Appeals clerkship, and haven't heard of judges giving weight clerkship applicants who have taken immigration law. Certainly it would not be a bad thing, but I think most clerks would be better served taking something like Securities, Antitrust, Criminal Procedure, Sentencing, and the like.

While immigration law as a whole is complicated, most immigration cases, once they reach the COA, are fairly routine. The most common cases are whether particular conduct is persecution, and whether an alien's testimony was incredible. The latter is by far the most common, and is reviewed for substantial evidence, meaning the IJs findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. These cases are generally quite easy, as you can imagine. The burden of proof cases are a bit more difficult, and often focus on whether particular conduct constitutes past persecution or whether the alien has a reasonable fear (both subjectively and objectively reasonable) of future persecution. Whether conduct is or is not persecution is often controlled by prior case law. The IJ's determination of whether the alien's subjective fear of future persecution is objectively reasonable is given so much deference that it rarely is overturned. The only real tricky area is dealing with BIA interpretations of agency regulations. Most often this involves a Chevron analysis, and while difficult, I cannot imagine an immigration law class really helping in this area, as such cases typically involve a very narrow or focused agency regulation. Perhaps I am wrong, but I think immigration law at the appellate level is easy enough to learn on the fly. Plus, in the context of interpreting agency regulations, if the clerkship applicant has taken Admin law, s/he will have a good idea of how Chevron works, which is all that is really necessary. Finally, on the two circuits I have been, the judges handle a majority of the immigration cases by themselves.
3.11.2008 11:49am
treebeard (mail):
Eugene, I don't mean to begin the comments by diverting them. But do you really mean that a judge could be swayed in a person's favor merely because he took a particular course in law school? I wish I had known that my course selections were that significant.
3.11.2008 11:53am
Allan (mail):
I wonder whether district court judges would give extra consideration for Social Security law experience.
3.11.2008 11:55am
Eugene Volokh (www):
Treebeard: I agree having taken a single class shouldn't count for much. That's why I asked about substantial knowledge, evidenced by taking the class and writing a student Note on the subject (or something else that's comparable).
3.11.2008 11:56am
What makes you ask this question? Doesn't it go against all your law education experience?
3.11.2008 12:03pm
The District Court Judge who hired me wanted to know if I had any experience dealing with Social Security law. I answered no and the Judge did not dwell on the issue.
3.11.2008 12:26pm
I agree with Nick. I was a 9th Cir clerk, and I had a lot of immigration cases. They were almost all the same: "Appellant sought asylum claiming that s/he was a victim of persecution. The IJ did not believe her/him and denied the application. The BIA affirmed. Appellant now claims that the IJ's decision was not supported by substantial evidence."
3.11.2008 12:29pm
YetAnotherFormerClerk (mail):
I clerked on the Fifth Circuit, which certainly has a significant number of immigration cases (though possibly not as many as the Ninth). My sense was definitely that the staff attorneys in New Orleans handled the majority of the immigration cases. And as for the ones that did come our way, I second the previous comment about it not being terribly hard to learn on the fly given that the issues--though once difficult--tend to be much more stripped down by the time they get to the COA. For better or worse, most of those cases end up being reviewed for abuse of discretion... which, whether fairly or unfairly, tends to heavily affect the outcome. So, I can't imagine that judges would necessarily be on the lookout for immigration knowledge. The one exception might be if a particular judge is himself really into that area of law--but in that case, he probably knows enough himself without relying on a clerk.

That said, I will say from my own experience--at least since Booker and Blakely, that Sentencing Guidelines also comprise a huge portion of the docket. Especially cases that go to oral argument. And so, given how frequent they are, maybe that might be an area where student knowledge could interest a judge. Of course, it could also be said that those cases also tend to all be resolved the same way too....
3.11.2008 12:36pm
Former 9th Clerk (mail):
After my judge hired me to clerk for him, I asked him if there was anything he wanted me to do in my last year before I began clerking. He begged me to become an immigration law expert (or akin to that) before I came - it was good advice. While I didn't take a class on it (my school didn't have one that year), I did read several case books and hornbooks to get a decent understanding of it before I started.

So, that doesn't help Eugene's question, in that I wasn't hired due to my immigration experience (or lack thereof), but it was something that really helped out with the clerkship (and the judge) once I had already been hired.
3.11.2008 12:53pm
Pliny, the Elder (mail):
The Ninth Circuit handles the majority of immigration cases amongst the circuits.
If immigration law expertise were much of a concern (and it does not appear to be), a circuit judge could probably find an intelligent (but burned out) assistant chief counsel from ICE to serve as a clerk.
I clerked foir a state supreme court justice who cared little about grades in general but was very interested in my A in Evidence.
3.11.2008 1:01pm
I'll join the consensus. I was a second circuit clerk last year, and I had an enormous number of immigration cases, but only two of them were at all legally complex. The rest sometimes required close reading of the facts, but the legal questions were routine, and mostly handled by the staff attorneys anyway.
3.11.2008 1:51pm
unfulfilled (mail):
Pliny, what state and what court? Is he/she hiring?
A state supreme court justice who doesn't care about grades but wants an "A" in evidence would be right up my alley.
In all seriousness, are there many judges who will overlook mediocre grades in hiring a clerk if they see other qualities (legal writing and research, for example)?
3.11.2008 1:57pm
Pliny, the Elder (mail):
The Justice is now retired. I clerked for him until three weeks before he stepped down.
There are not many and my grades were a little better than mediocre. I had a co-clerk, however, who was in the bottom half of the class, though barely.
The truth is thta I would not have hired that co-clerk and am not sure that I would hire myself if I were a federal appellate judge. There are some very smart people who are not top of the class, but I would probably be too lazy to try and find one.
The justice for whom I clerked was just exceptional in every (good) way.
3.11.2008 2:26pm
unfulfilled (mail):
Oh well...
3.11.2008 2:28pm
Noone (mail):
From the Ninth Circuit: I have much more frequently heard judges screen, at least at the district court level, on the basis of whether an applicant has taken IP. That said, and without going into the staff attorney ranking system on the difficulties presented by cases in the Ninth Circuit, the complexity of immigration (and social security) cases is very clearly in the eye of the beholder. On that basis there is probably some variation in how judges evaluate the importance of prior immigration experience. There are definitely some odd and fairly unique administrative issues that arise out of immigration cases, especially procedurally. Ultimately, however, whether any judge looks at prior immigration experience positively may just be a function of how interested that judge is in students that have an interest in either public service and/or public law. It's probably silly to take immigration just to get a clerkship. On two other notes: (1) immigration seems like a great area for pro bono work that makes a difference, and (2) an empirical comparison of the level of dissent in these cases across and between circuits would be really interesting, and some really basic logistic regression analysis could likely be done with possibly fascinating results.
3.11.2008 2:49pm
Christopher Cooke (mail):
I clerked in the District Court in San Francisco many years ago. My judge asked one of this clerks to take IP classes (Copyright and Patents) and the other to take securities law. I would up taking the latter, because my co-clerk had already taken some of the IP courses.

If I were a federal judge, I might also ask a clerk to take Administrative Law

No immigration classes requested, but my guess is that the Ninth Circuit handles most of them because it has jurisdiction over the BIA, so a district court judge is not going to get very many (we did get a few).

Personally, I think an ERISA, tax, securities or patent case might pose a greater intellectual challenge for a law clerk and judge than an immigration case, because the laws in these areas are complex (for ERISA, tax and securities) or the subject matter may be challenging for generalist judges (for patent cases).
3.11.2008 3:14pm
Christopher M (mail):
I clerked in the Ninth Circuit. Even though I worked on quite a few immigration cases, I don't know that it would have been all that helpful for me to have taken an immigration law class. Immigration cases tend to be extremely fact-specific and to involve application of various more-or-less arbitrary doctrinal formulas, many of which are circuit-specific rather than national.

Moreover, at least in the Ninth Circuit, the case law on immigration is so amorphous that it rarely strictly dictates the result in fact-specific cases. There are just so many cases out there, with so many different fact patterns, that come out so many different ways, that the result almost inevitably turns on the individual judge's view (or his clerks' views) about how to decide immigration cases. I can't think of any other field -- well, maybe death penalty habeas -- where the composition of the three-judge panel is a larger factor in the ultimate outcome of the typical case.
3.11.2008 4:07pm
Pliny, the Elder (mail):
Christopher M is correct.
In fact, I think that 9th Cir. Judge O'Scannlain wrote an opinion that said that it was impossible to consistently apply all of the 9th Circuit's precedents.!
3.11.2008 4:25pm
Reinhold (mail):
Whoa, whoa, whoa . . . Did you say relax their grade standards? How does that work? I mean, law clerks are going to be stuck in a room with a brand-new fact pattern writing essay exams for three hours at a time, right?
3.11.2008 4:29pm
My Fed. Soc. chapter had lunch with Judge O'Scannlain today, and I asked him this question.

He pretty much discounted the idea, for many of the reasons cited above, and instead suggested federal courts, procedure and admin law as areas to focus on.
3.11.2008 6:09pm
Dixie Yid (mail) (www):
I was priveleged to hear Justice Alito and Judge Leonard I. Garth of the Third Circuit (who Justice Alito clerked for) speak today. They both mentioned how common immigration cases are today, and how that would be an area of the law that an incoming law clerk should focus on in preperation for his or her clerkship. I infer from their comments that they would be impressed with writing and coursework on this subject.

-Dixie Yid
3.11.2008 9:29pm