I posted my annual statistics for the October 2025 – September 2026 annual period yesterday from U.S. 5th Circuit decisions released in that period, but I left out one of the more interesting sets of statistics that I just started collecting in this last annual period: the shift in affirmance rates–and therefore in an appellant’s statistical odds of success–depending on whether oral argument is granted. To determine this, I separately track appellate results for cases where no oral argument was ever granted, for cases where oral argument is granted and heard, and for cases where oral argument is initially granted but then withdrawn. Take a look:
No oral argument: Of the 2025-2026 period’s 2,456 opinions, 1,859 are from cases where oral argument was never ordered, the vast majority of which were cases on the Court’s summary calendar. Of those, 1,753 did not in any way modify the result from the district court or agency on review (full affirmances, appeal dismissals, denials of mandamus, and denials of petitions for review of Board of Immigration Appeals or other agency decision), resulting in an NOA affirmance rate of 94.3%. The raw numbers: 1,621 fully affirmed or appeal dismissed; 23 partially affirmed/partially reversed or vacated; 21 fully reversed; 3 denials of mandamus; 5 grants of mandamus; 40 fully vacated; 122 denials of petitions for BIA review; 2 grants of petitions for BIA review; 7 denials of petitions for other agency review; 3 grants of petitions for other agency review. (Not counted in my affirmance rate calculation, NOA cases also resulted in 1 published denial of en banc rehearing, 5 orders of en banc rehearing, 4 denials of motions, 5 grants of motions, and 2 partial grants of motions).
Oral argument granted but then withdrawn: Of the 2025-2026 period’s 2,456 opinions, 131 are from cases where oral argument was initially granted but then withdrawn; in other words, the briefing was sufficient to compel a screening panel to set the case for oral argument, but later the merits panel determined that oral argument was not necessary. Of those, 100 did not in any way modify the result from the district court or agency on review (full affirmances, appeal dismissals, and denials of petitions for review of Board of Immigration Appeals or other agency decision), resulting in an OA-withdrawn affirmance rate of 76.33%, almost 20% lower than the NOA affirmance rate. The raw numbers: 92 fully affirmed or appeal dismissed; 5 partially affirmed/partially reversed or vacated; 8 fully reversed; 15 fully vacated; 6 denials of petitions for BIA review; 1 grant of a petition for BIA review; and 2 denials of petitions for other agency review. (Not counted in my affirmance rate calculation, OA-withdrawn cases also resulted in 1 certification of a question to a state supreme court, and 1 published denial of en banc rehearing).
Oral argument granted and heard: Of the 2025-2026 period’s 2,456 opinions, 466 are from cases where oral argument was granted and then heard–only 18.97% of the decisions released in the period. Of those, 283 did not in any way modify the result from the district court or agency on review (full affirmances, appeal dismissals, denials of mandamus, and denials of petitions for review of Board of Immigration Appeals or other agency decision), resulting in an OA-heard affirmance rate of 60.73%, approximately 34% lower than the NOA rate. The raw numbers: 269 fully affirmed or appeal dismissed; 48 partially affirmed/partially reversed or vacated; 55 fully reversed; 1 denial of mandamus; 36 fully vacated; 5 denials of petitions for BIA review; 1 grant of a petition for BIA review; 8 denials of petitions for other agency review; 16 grants of petitions for other agency review. (Not counted in my affirmance rate calculation, OA-heard cases also resulted in 5 certifications of questions to state supreme courts; 11 published denials of en banc rehearing, 7 orders of en banc rehearing, 3 denials of motions, and 1 grant of a motion).
So, the headline is, get oral argument (I know, with an 18.97% oral-argument-heard rate, easier said than done), but even if it’s subsequently withdrawn there is benefit to having at least convinced the screening panel that argument may be useful. Collective affirmance rates: NOA 94.3%, OA-withdrawn 76.33%, and OA-heard 60.73%.
