Saturday, November 18, 2006

Courts and the Attorney General Complain About Immigration Judges

Numerous complaints are flooding down against immigration judge and the Board of Immigration Appeals in immigration cases, especially asylum cases.

Complaints include:

November 29, 2005 article in the Newark Star-Ledger newspaper about improper conduct by immigration judge in New Jersey.

December 26, 2005 article in the New York Times about poor conduct by immigration judges in asylum cases and circuit court judges' dismay.

January 2006 memo from Attorney General Alberto Gonzales that explains he is requesting a review of judges' conduct and reminding judges to conduct their hearings with dignity.

Zhong v. Gonzales, No. 02-4882 (2d Cir. Aug. 8, 2006), IJ unfairly took minor discrepancies unrelated to the underlying claim in order to deny asylum.

Rafiq v. Gonzales, No. 05-2079-ag (2d Cir. July 24, 2006):
Despite the efforts of Rafiq’counsel to bring Khouzam to the IJ’s attention, the IJ failed to acknowledge the decision as controlling authority, and, in the removal hearing, the IJ made comments that strongly suggested he believed direct government involvement was required.
Pramatarov v. Gonzales, No. 05-2138 (7th Cir. July 27, 2006):
The immigration judge (O. John Brahos, whose decision was affirmed in a one-sentence per curiam order by the Board of Immigration Appeals) doubted the applicant’s credibility on grounds that, because of factual error, bootless speculation, and errors of logic, lack a rational basis.
Huang v. Gonzales, No. 04-1032-ag (2d Cir. June 29, 2006):
IJ Chase’s hostility toward Huang and apparent bias against him and perhaps other Chinese asylum applicants is manifest on this record.
In Meizi Liu v. BIA, 167 Fed. Appx. 871 (2d Cir. 2006) (summary order), the panel remanded partly because of IJ Chase’s demonstrated “pervasive bias and hostility” toward the petitioner. Id. at 873.

In Hajderasi v. Gonzales, 166 Fed. Appx. 580 (2d Cir. 2006) (summary order), a different panel commented on IJ Chase as follows: [W]e agree with the BIA that the IJ’s tone was at times “inappropriately sarcastic” . . . . We are troubled . . . by his sarcastic tone and by his manner of questioning, which is easily perceived as badgering. Such behavior by a judge is rarely appropriate. Id. at 582.

In You-Mei Ding v. CIS, 140 Fed. Appx. 306 (2d Cir. 2005) (summary order), another panel noted that the BIA had specifically disavowed inappropriate remarks made by IJ Chase. Id. at 307.

Kumar v. Gonzales (9th Cir. Jan 23, 2006):
It would be difficult to imagine a more precise example of “speculation and conjecture” than the IJ’s finding, based upon nothing more than his own uninformed visual comparison of the two number fours at issue, that Singh had forged Ram’s death certificate.
Giday v. Gonzales (7th Cir. Jan. 5, 2006):
when the questioning [by an immigration judge] becomes so aggressive that it frazzles applicants and nit-picks inconsistencies, any benefit that the barrage of questions contributes to the development of the record may be lost in the distortion it creates.

...the volume of case law addressing the issue of the intemperate, impatient, and abrasive immigration judges should sound a warning bell to the Department of Homeland Security that something is amiss. Diallo, 381 F.3d at 701, Hasanaj, 385 F.3d at 783, Kerciku, 314 F.3d at 918, Podio, 153 F.3d at 510.
Pascha v. Gonzales (7th Cir. Dec. 29, 2005):
At the risk of sounding like a broken record, we reiterate our oft-expressed concern with the adjudication of asylum claims by the Immigration Court and the Board of Immigration Appeals and with the defense of the BIA’s asylum decisions in this court by the Justice Department’s Office of Immigration Litigation. See Benslimane v. Gonzales, No. 04-1339, 2005 WL 3193641, at *1 (7th Cir. Nov. 30, 2005), and cases cited there. The performance of these federal agencies is too often inadequate. This case presents another depressing example.
Bensilame v. Gonzales (7th Cir. Nov. 30, 2005):
In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits. The corresponding figure, for the 82 civil cases during this period in which the United States was the appellee, was 18 percent. Our criticisms of the Board and of the immigration judges have frequently been severe. [citing numerous cases listed below]. This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation’s immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legaljustice. Niam v. Ashcroft, supra, 354 F.3d at 654.
Dawoud v. Gonzales, 424 F.3d 608, 610 (7th Cir. 2005) (“the [immigration judge’s] opinion is riddled with inappropriate and extraneous comments”)

Ssali v. Gonzales, 424 F.3d 556, 563 (7th Cir. 2005) (“this very significant mistake suggests that the Board was not aware of the most basic facts of [the petitioner’s] case”)

Sosnovskaia v. Gonzales, 1 F.3d 589, 594 (7th Cir. 2005) (“the procedure that the [immigration judge] employed in this case is an affront to [petitioner’s] right to be heard”)

Soumahoro v. Gonzales, 415 F.3d 732, 738 (7th Cir. 2005) (per curiam) (the immigration judge’s factual conclusion is “totally unsupported by the record”)

Grupee v. Gonzales, 400 F.3d 1026, 1028 (7th Cir. 2005) (the immigration judge’s unexplained conclusion is “hard to take seriously”)

Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004) (“there is a gaping hole in the reasoning of the board and the immigration judge”)

Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir. 2003) (“the elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases”).

Wang v. Attorney General, 423 F.3d 260, 269 (3d Cir. 2005) (“the tone, the tenor, the disparagement, and the sarcasm of the [immigration judge] seem more appropriate to a court television show than a federal court proceeding”; "Time and time again, we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings. Three times this year we have had to admonish immigration judges who failed to treat the asylum applicants in their court with the appropriate respect and consideration.")

Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 115 (2d Cir. 2005) (the immigration judge’s finding is “grounded solely on speculation and conjecture”);

Fiadjoe v. Attorney General, 411 F.3d 135, 154-55 (3d Cir. 2005) (the immigration judge’s “hostile” and “extraordinarily abusive” conduct toward petitioner “by itself would require a rejection of his credibility finding”; criticizing Judge Ferlise);

Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005) (“the [immigration judge’s] assessment of Petitioner’s credibility was skewed by prejudgment, personal speculation, bias, and conjecture”);

Korytnyuk v. Ashcroft, 396 F.3d 272, 292 (3d Cir. 2005) (“it is the [immigration judge’s] conclusion, not [the petitioner’s] testimony, that ‘strains credulity’”).

Zhang v. Gonzales, 405 F.3d 150, 159 (3d Cir. 2005): Judge McKee expressed his concerns about the IJ’s apparent “search for ways to undermine and belittle” the alien’s testimony, and the possibility that the IJ’s decision “was influenced by his view of Zhang’s parenting.” Id. at 158-59.

Fiadjoe v. Attorney General, 411 F.3d 135, 144, 146, 154, 155 (3d Cir. 2005): IJ’s opinion was “crude” and “cruel,” noting its “hostile” tone and sometimes “extraordinarily and “extreme[ly] insensitiv[e]” behavior.

Konan v. Gonzales (3d Cir. Dec. 30, 2005) (reversing immigration judge's denial of asylum because IJ and BIA gave no reason for denying claim that asylum-seeker was persecuted due to being a member of a particular social group).

Butt v. Gonzales (3d Cir. Nov. 23, 2005) (reversing immigration judge's denial of asylum because IJ relied on its "own strained interpretation of [a medical] notice" and other reasons set forth by IJ were too general to be reviewed).

Korytnyuk v. Ashcroft, 396 F.3d 272 (3d Cir. 2005), the circuit court asked that the case be reassigned and required that the BIA take into explicit consideration “the extreme hostility the IJ exhibited toward [the petitioner] throughout the hearing, commencing at its very inception, as well as the inevitable effect upon an individual seeking asylum of an interrogation conducted in so intimidating a manner by a government official supposed to be a neutral arbiter.” Id. at 287 n.20 (internal quotation omitted).

Dia v. Ashscroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc) (“[h]er opinion consist[ed] not of the normal drawing of intuitive inferences from a set of facts, but, rather, of a progression of flawed sound bites that [gave] the impression that she was looking for ways to find fault with Dia’s testimony.”).

Reyes-Melendez v. INS, 342 F.3d 1001, 1007 (9th Cir. 2003): IJ accused the alien of “moral impropriety” and “became aggressive and offered a stream of non-judicious and snide commentary.” There also the IJ was rebuked for her “sarcastic commentary and moral attacks” on the alien.

Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986): the circuit court warned that IJs may
not use the “personal choices that an asylum applicant has made concerning marriage, children, and living arrangements” to evaluate an alien’s credibility.

Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005): assessment of certain domestic violence allegations were “skewed by prejudgment, personal speculation, bias, and conjecture.”

Huang v. Gonzales, 403 F.3d 945, 950 (7th Cir. 2005): overturned IJ who aggressively questioned an asylum applicant based on his own assumptions about Catholicism.

update: Cham v. Gonzales, No. 04-4251 (3d Cir. Apr. 28, 2006):
The case now before us exemplifies the “severe wound . . . inflicted” when not a modicum of courtesy, of respect, or of any pretense of fairness is extended to a petitioner and the case he so valiantly attempted to present . . . We agree that most immigration judges “ably and professionally” discharge what surely are “difficult duties.” We write because one of them, the Hon. Donald V. Ferlise, has seen fit on more than one occasion, including that now before us, not to do so.
Shah v. Gonzales, No. 04-3607 (3d Cir. Apr. 28, 2006):
In his apparent zeal to deny relief to petitioner, however, the Immigration Judge, Donald V. Ferlise, came to the conclusion that the father is alive.
Gao-Le Huang v. Gonzales, 453 F.3d 142 (2d Cir. 2006): IJ Chase had "apparent bias against [the applicant] and perhaps other Chinese asylum applicants."

Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (criticizing Judge Ferlise because "In this case, in derogation of his responsibility to appear neutral and impartial, the IJ interjected intemperate and bias-laden remarks.") Judge Ferlise made comments such as "All of the
applicants that are applying for asylum have no right to be here. You don’t come to the United States to look for a job! That’s not the purpose of asylum." And "You have to understand, the whole world does not revolve around you and the other Indonesians that just want to live here because they enjoy the United States better than they enjoy living in Indonesia. It is not a world that revolves around you and your ethnic group."

You-Mei Ding v. CIS, 140 Fed. Appx. 306 (2d Cir. Aug. 8, 2005) (unpublished) (cited in later Second Circuit case as raising concerns about remakrs and demeanor of IJ Chase while conducting hearings.

Meizi Liu v. BIA, 167 Fed. Appx. 871 (2d Cir. Feb. 17, 2006) (unpublished) (IJ demonstrated a pervasive bias and hostility towards [the petitioner]; later Second Circuit opinion identified IJ as Judge Chase)

Hajderasi v. Gonzales, 166 Fed. Appx. 580 (2d Cir. Feb. 13, 2006) (unpublished) (troubled by "his sarcastic tone and by [IJ Chase's] manner of questioning, which is easily perceived as badgeting")

Hin Yong Chen v. Gonzales, USCA No. 04-5826 (2d Cir. April 28, 2006) (unpublished) (concern by some of the IJ's remarks, noting "IJ Chase's gratuitous remarks about a petitioner's personal conduct" was unrelated to the case's issue and not appropriate).

Ti Wu Gao v. Gonzales, No. 05-0012-ag (2d Cir. Sept. 29, 2006) (unpublished) (proceedings "marred by IJ Chase's behavior, which raises substantial questions as to his possible bias towards Chinese practitioners")

Islam v. Gonzales, No. 05-1390-ag (2d Cir. Nov. 9, 2006): criticizing IJ Chase for repeatedly addressing asylum-seeker in argumentative, sarcastic, impolite, and overly hostile manner that went beyond fact-finding and questioning. Also noting that repetitive verbally abusive comments are unacceptable, even if the asylum-seeker does not appear to be truthful.


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