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I.J. Donald Ferlise (Philadelphia, Pennsylvania)

Ethical Concerns

PARDS Profile Series

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©2006 National Law Journal Online
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Immigration bench plagued by flaws

Pamela A. MacLean

Staff reporter

February 6, 2006

Federal executives who oversee immigration judges have failed to address longstanding complaints of judicial misconduct, including allegations of manipulating hearing records and repeated due process abuses, according to court documents and immigration lawyers.

In another sign that systemic problems plague the immigration bench, an examination by The National Law Journal of published opinions shows that complaints by federal appellate judges about the conduct of immigration judges have grown sharper and more frequent in recent years.

At least 25 appellate opinions have criticized immigration judges' treatment of aliens during deportation and asylum hearings since 2003. In 13 of those cases, the panels found the conduct so egregious that they said the case should be assigned to a new judge.

"Time and time again, we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings," wrote Judge Julio Fuentes of the 3d U.S. Circuit Court of Appeals in a decision last September. "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," he said. Wang v. Attorney General, 423 F.3d 260 (2005).

The spotlight on immigration judges as hostile or as flouting established law prompted Attorney General Alberto Gonzales to issue a memo on Jan. 9 that they shape up. He directed it to the immigration judges, rather than the agency head controlling judicial discipline, Chief Immigration Judge Michael J. Creppy.

Gonzales also appointed two senior assistants to investigate the complaints.

A 'swamp'

But neglect of larger bureaucratic shortcomings in immigration adjudication is "a swamp" that is "very deep and very wide," according to Mike Pellerin, director of Political Asylum Research and Documentation, which provides expert witnesses in asylum cases.

Much broader problems beyond judicial misconduct must be fixed, warned Lucas Guttentag, director of the American Civil Liberties Union's national immigration project. "The important thing to recognize is the broader systemic failures have gotten worse and worse," he said.

There is a lack of resources, a lack of meaningful appellate review by the Board of Immigration Appeals, and federal court jurisdiction over many claims has been stripped away, Guttentag said.

"If the attorney general is serious about reform, we are willing to meet with him any time, any place to discuss meaningful changes," he said, adding that he sent the offer in a letter to Gonzales.

Appellate rulings in which a panel urged assigning a new immigration judge:



Kerchiku v. INS
314 F.3d 913 (2003)

predetermined decision
without hearing alien

Kllokoqi v. Gonzales
No. 03-3508

"highly inappropriate,"

"erroneous" speculation

Lopez-Umanzor v. Gonzales
405 F.3 1049

"prejudgment, personal

Niam v. Ashcroft
354 F.3d 652

"woefully inadequate";
"logic, common sense eluded BIA"

Fiadjoe v. Attorney General
411 F.3d 135

"crude" and "cruel"

Smolniakova v. Gonzales
No. 03-71600

"willful disregard of the facts"

Sukwanputra v. Gonzales
No. 04-3336

"derogation of his responsibility to appear neutral"

Zhang v. Gonzales,
405 F.3d 150 (2005)

"ignored evidence" and "looked for ways to deny

Paramasany v. Ashcroft
295 F.3d 1047 (2005)

credibility findings

The central complaints from lawyers and academics about the immigration judiciary include:

A 2002 streamlining program that critics say eviscerated the authority of the Board of Immigration Appeals, hampering its ability to rein in improper conduct or poor legal reasoning by judges. The BIA now seldom sits as panels of three administrative judges to review appeals. A single appeals judge may issue a one-paragraph decision with no legal reasoning. The effect has been to shift the appeals backlog to the U.S. circuit courts of appeals.

Immigration judges control the tape-recording systems used to record hearings. A number of lawyers have complained that some judges manipulate the court record by turning machines off and on during hearings, intimidating aliens while the machines are off.

Transcription of taped hearings is done by private contractors in Virginia and often includes errors or omits some testimony as unintelligible on the tape, hampering potential appeals.

Passage of the 2005 REAL ID Act included provisions eliminating habeas corpus petitions arising out of immigration decisions.

A lack of overall resources, including the sharing of a single law clerk among as many as 10 judges.

Charles Miller, a spokesman for the U.S. Department of Justice, said his office would not comment on criticisms or potential reforms until the attorney general has received a report from Associate Attorney General Robert McCallum and acting Deputy Attorney General Paul McNulty.

Miller said that no time frame is set for expected results, but that Gonzales has called for an "expeditious" review.

To be sure, the majority of immigration appeals are upheld. Judge Terence Evans of the 7th Circuit asked in a 2004 concurring opinion whether the appeals court had "a fair appreciation of the work load and conditions under which immigration judges must work? A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge."

Michael Hethmon, senior staff counsel for the Federation for American Immigration Reform, the nation's largest immigration reform group that advocates reducing legal immigration, said that "[t]here is simply no evidence at all, except anecdotal horror stories, that [streamlining] doesn't work."

The federation strongly supported streamlining in 2002, "and we were right," Hethmon said. "It has eliminated the backlog." He strenuously disputed assertions that the agency faces systemic problems in adjudication of immigration appeals.

Dana Marks, an immigration judge in San Francisco and vice president of the National Immigration Judges Association, said, "The increasing caseload and continuing lack of resources creates far more stress on judges.

"Part of the pickle we're in is that this is not an issue that gets a lot of money directed toward it," she said.

The immigration judges complain that despite legislation years ago giving them the power to cite lawyers for contempt, the Justice Department has never produced regulations to implement the law, Marks said. "We have never been told why it was not implemented."

Meanwhile, critics have become more vocal.

Discipline of immigration judges "is not transparent," said professor Richard Boswell, who teaches immigration law at University of California Hastings College of the Law. "It is not clear what the standards are" for judicial discipline. Immigration judges have better protection than federal judges, who enjoy life tenure and can be removed only through impeachment, he said.

The alleged misconduct, systemic problems handling caseloads and lack of resources have drawn the attention of academics and Congress. Catholic University of America Columbus School of Law in Washington held a day-long symposium on immigration issues last week.

The Government Accountability Office, Congress' investigative arm, has been examining the Executive Office of Immigration Review (EOIR), although a staffer for House Judiciary Committee Chairman F. James Sensenbrenner Jr., R-Wis., declined to discuss the nature of the inquiry, saying it is confidential.

The American Immigration Lawyers Association (AILA) has long complained about abusive immigration judges, the lack of an open discipline system and the need for reform.

Charles Kuck, national vice president of AILA, accused Chief Immigration Judge Michael J. Creppy of running his agency like "a little fiefdom."

"The blame for the system as it is today lies at his feet," said Kuck of Kuck, Casablanca & Howard in Atlanta. He said that while discipline of judges is nearly nonexistent, EOIR has created a system of discipline for private attorneys that works quickly and is very public. "Why can't they handle that for judges?" he asked.

"I already have a set of state bar rules I have to abide by or God comes down on me. The same thing should happen in the EOIR system for judges," he said.

Creppy declined to be interviewed for this series, according to EOIR spokesman Greg Gagne.

As for fixes, "First of all, they need to get rid of affirmance without opinion [by the Board of Immigration Appeals]," said Deborah Notkin, president of AILA and a New York immigration attorney. AILA has found that the 7th Circuit reversed the Board of Immigration Appeals in 48% of the appeals in the last year.

'Neutered by streamlining'

Former Attorney General John Ashcroft's 2002 immigration restructuring, an effort to streamline appeals to cut down the backlog of 56,000 appeals, allowed the Board of Immigration Appeals to issue one-judge decisions and eliminated any appellate re-examination of the underlying facts of the case, known as de novo review.

In addition, Ashcroft cut the number of BIA judges from 16 to 11 in 2003, in what has been called a purge of judges too friendly to immigrants, Guttentag said.

The first time an immigration case is reviewed by the judicial branch is when challenges to BIA rulings are brought before U.S. circuit courts of appeals. Since streamlining began, the appellate courts have been inundated with appeals. In the 9th Circuit, immigration appeals have grown by 500%, while in the 2d Circuit they increased by an astonishing 1,400% from 2001 to 2004, according to court records.

"When the BIA had a more active role, it would clean up decisions," said former BIA Judge Lory Rosenberg, who left the BIA in 2002 and now is in private practice in Rockville, Md. "Now the BIA is a rubber stamp" of immigration judges, she said.

Judge Michael Daly Hawkins of the 9th Circuit said that he and other judges met with Creppy and McCallum last year to talk about the strains on the appeals courts created by the increased volume. "These people are crushed by lack of resources," Hawkins said of the immigration judge corps.

"The BIA was effectively neutered by streamlining," Hawkins said, adding that McCallum seemed concerned about reducing the number of appeals because it is starting to affect workloads in other agencies. They are having to "farm cases out to lawyers with the Park Service and Environmental Protection Agency, and the learning curve is very steep," Hawkins said.

Despite those meetings more than six months ago, the wave of appeals has not subsided, according to the 9th Circuit's latest statistics.

Denver attorney Laura Lichter, head of the AILA liaison committee with EOIR, said that there was a "fruitful discussion" the last time they raised the issue of judicial misconduct in earnest, two years ago. The average attorney, she said, is not willing to provide a client's name and case number in a formal complaint to EOIR, for fear of future retaliation.

"There has to be some mechanism for knowing what happens to our complaints," she said. Lichter said that EOIR agreed to allow local AILA chapters to make more anonymous, informal complaints to regional assistant chief immigration judges to take notice of a specific judge. "It has worked in some limited areas," she said.

Internal File: DonaldFerlise(PARDSProfile,I.J.,Philadelphia,Pennsylvania)February6,2006

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