A new case finds an over-active judge violated an alien’s right to a fair hearing.

Sunday, January 1st, 2012
By: Jonathan MontagJ.D.

Lawyers, like children, complain when things are unfair. Children complain to their parents. Lawyers complain to appellate judges. Parents respond, “Life’s unfair,” which acknowledges the inherent unfairness in life, but does not repair the unfairness. Complaints in the legal world substitute the word “due process” for “fair.” Courts, when dealing with these due process claims, do not acknowledge unfairness and often respond, “What you are complaining about did not violate due process.” Same result.

Practitioners before any adjudicative body know that a lot depends on who you get as your “decider.” Practitioners know the result is often a function of whom your judge is. In appellate practice, it is not unusual to know the result based on who the panel of judges hearing the case is composed of. In the immigration court setting, you often know what is going to happen based on the judge you get. On appeal, you can often guess on your chances of success based on who hears your case. This is not always so. There is enough variation around the mean to keep one guessing and hoping. Sometimes the “worst” judge will give you the “best” result and the “best” judge will give you the “worst” result, but more often, you know what is going to happen in advance.










In the immigration court context, one experience that many lawyers consider inherently unfair is when the immigration judge conducts the examination of the client. When the examination is punctuated by anger and intimidation, mockery and sarcasm, you feel like you’re at a hearing like Richard Burton’s in the Spy Who Came in from the Cold, or like when you were sent to the assistant principal in junior high, with the same result;  your’re cooked.

There are lots of problems with a judge acting like a prosecutor. First, the appearance of the hearing is awful. One purpose of a hearing is to give the parties the feeling that they are being dealt with fairly. People accept a bad result if they believe that at least the process was fair. When the judge takes over, the process seems unfair and respect for the process is lessened. Society in general loses respect for the tribunal and the process.

In addition, when the fact finder becomes the prosecutor, objecting becomes pointless or counterproductive. How can one object to a question as irrelevant if it is the fact finder asking it? He or she must deem it relevant or he or she would not ask it?  If objecting to questioning irritates the judge, who is also the fact finder, how clever is it to annoy the person deciding the case? I am sure judges notice they are afforded a lot more deference at work than when driving home of the freeway or on line at the supermarket simply because attorneys do not want to annoy the person making the decisions in their cases.

In 1998, the Ninth Circuit Court of Appeals decided a case, Antonio Cruz v. INS. At issue was the immigration judge’s acting as prosecutor, as seen in this excerpt from the case:

Antonio-Cruz next contends that the IJ violated his right to due process by conducting “the lion’s share of cross-examination” in a “harsh manner and tone.” Antonio-Cruz presented this challenge to the BIA, but the BIA did not address it.

Antonio-Cruz’s challenge fails for two reasons. First, the Due Process Clause does not preclude an IJ from asking questions of witnesses. 

Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986) (holding that IJ did not violate Due Process  Clause by “vigorously questioning” petitioner); 8 U.S.C. § 1252(b) (1996) (indicating that IJ can “interrogate, examine, and cross-examine the alien and witnesses”). Second, Antonio-Cruz does not claim that any purported due process violation committed by the IJ prejudiced him. See Getachew, 25 F.3d at 845 (holding that due process challenges to deportation proceedings require showing of prejudice to succeed).

Hence, Antonio-Cruz’s due process challenge to the IJ’s manner of asking questions fails to establish either a violation of the Due Process Clause or the prejudice necessary to obtain relief.

In the decision, the court first concluded that it did not have jurisdiction to consider Mr. Antonio-Cruz’s objections to the court’s decision denying him voluntary departure, holding that a jurisdiction-stripping statute barring courts of appeals from reviewing discretionary decisions was valid. So, it is not astonishing that because the court refrained from considering arguments that the decision was ill-founded, it would not find prejudice.

Because most discretionary decisions cannot be reviewed when a statute provides that the decision is discretionary, as the Supreme Court clarified. Without a review of the entire process that created the record and the decision in the case, a finding of prejudice will be rare indeed. There have been cases where courts have found due process violations in hearings where an alien was seeking discretionary relief, like here, but they are few and far between.

Despite jurisdiction stripping statutes, appellate courts retain jurisdiction to consider the bases for denial of asylum cases. It is thus more likely that a court will find unfairness in a proceeding where an immigration judge took over prosecution of an asylum case. This indeed did happen in a Third Circuit case, Abulashvili v. Attorney General of the United States in November of 2011. The Abulashvili court provided the facts and conclusions as follows:

Finally, Abulashvili argues that his due process rights were violated when IJ Garcy took over the cross-examination at the hearing after determining that the government was not adequately prepared. Abulashvili contends that the IJ was no longer a neutral arbiter once she assumed the role of counsel. As noted earlier, the IJ explained that she took such an active role in questioning to ensure that Abulashvili could tell his side of the story and that she was therefore trying to ensure his due process rights were protected.

“[T]he Due Process Clause applies to all ‘persons’ within the United States including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”

Zadvydas v. Davis, 533 U.S. 678, 693, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001). To establish a due process violation, Abulashvili must show that he was denied “a full and fair hearing,” which includes a “neutral and impartial arbiter of the merits of his claim and a reasonable opportunity to present evidence on [his] behalf.” See Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2008). “‘No person [may] be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.'” Wang v. Att’y Gen., 423 F.3d 260, 269 (3d Cir. 2005) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980)). We review alleged due process violations in deportation proceedings de novo. Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003).

Here, IJ Garcy had every right to exercise her discretion to question Abulashvili. See 8 USC § 1229a(b)(1). However, “”[a]n immigration judge has a responsibility to function as a neutral, impartial arbiter and must refrain from taking on the role of advocate for either party.” Elias v. Gonzales, 490 F.3d 444, 451 (6th Cir. 2007).

The Due Process Clause cannot tolerate a situation where a supposedly neutral fact finder interjects herself into the proceedings to the extent of assuming the role of opposing counsel and taking over cross-examination for the government. In doing so here, this IJ asked Abulashvili a total of 87 questions. Not surprisingly, once the IJ began cross-examining Abulashvili, the government’s attorney did not follow up with a single question. Why would he since an Immigration Judge was now doing his job for him? We cannot imagine how the IJ could be deemed a neutral arbiter under such circumstances. Moreover, even if she could somehow remain neutral in fact, the appearance was clearly to the contrary. It is not the IJ’s function to protect the government by becoming its counsel when its own counsel is not prepared.

IJs must “assiduously refrain from becoming advocates for either party.”

Abdulrahman, 330 F.3d at 596. Even if the IJ did not intend to become an advocate for the government, “judicial conduct [is] improper . . . whenever a judge appears biased, even if she actually is not biased.” See In re Antar (SEC v. Antar), 71 F.3d 97, 101 (3d Cir. 1995).  By stepping into the role of the attorney for the government, the IJ gave the strong impression that she was on the government’s side. It is difficult to conclude that Abulashvili received a “fair and full hearing” when the IJ ceased being the “neutral arbiter” due process demands and assumed the role of an advocate instead.

We readily acknowledge that an IJ’s position is an impossibly demanding and challenging one. This has become increasingly obvious in recent years as IJs are confronted with an exponential growth in their caseloads. The plight of immigration judges shoveling back a sea of cases has been chronicled in several news articles and law journals. In addition, it is often very difficult to ascertain the veracity of an asylum applicant’s testimony given barriers of language and culture to which we have already alluded. Perhaps this is why the BIA concluded that IJ Garcy was merely engaged in a “ferreting out of the facts” and “acquiring clarity in [Abulashvili’s] testimony,” as we noted above. However, that explanation and the IJ’s own explanation would be far more plausible if such interventions were as likely to favor the alien as the government and if the record established that the IJ fairly considered the entire record before making credibility determinations. That does not appear to be the case.

Perhaps courts of appeal will become more and more willing to find immigration court hearings unfair and violative of due process when immigration judges take over prosecution of cases, bully respondents, intimidate witnesses, and otherwise run court rooms like Judge Judy and not Judge Wapner. Inasmuch as the policing of immigration judges by the Department of Justice is nearly undetectable to practitioners, more decisions like Abulashvili would be a great step forward indeed. Posted January 1, 2012.



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