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Federal Court Critiques of Immigrant Adjudication

The following is taken from The Attorney General’s Judges, a report by Innovation Law Lab and the Southern Poverty Law Center. To download the report, click here.

Federal courts reviewing EOIR decisions have long denounced the agency’s ability to deliver impartial adjudications. In the words of the now-retired Seventh Circuit Judge Richard Posner, “the adjudication of these [immigration] cases at the administrative level has fallen below the minimum standards of legal justice.”

A growing list of circuit court decisions has excoriated the EOIR for a pattern of clearly biased immigration judge proceedings rubber-stamped by the Board of Immigration Appeals. Many of these decisions highlight the same problems that practitioners have identified as issues that make their jobs almost unbearable.

Aggressive and unprofessionaltreatment of respondents

• “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. Yet once again, under the ‘bullying’ nature of the immigration judge’s questioning, a petitioner was ground to bits.”

• “[The immigration judge] repeatedly addressed him in an argumentative, sarcastic, impolite, and overly hostile manner that went beyond fact-finding and questioning.”

• “The concluding portions of the hearing further demonstrated the [immigration judge’s] continuing hostility towards the obviously distraught [respondent] and his abusive treatment of her throughout the hearing. He had succeeded in returning her to the condition which [she had] overcome after repeated therapy sessions, breaking down and dissociating.”

Abandonment of the neutral fact-finder role

• “Throughout the hearing, [the immigration judge] badgered [the respondent] with loaded, pejorative questions and effectively abandoned her role as a neutral fact finder.”

• “Both the decision issued by the [immigration judge] and her conduct of the hearing demonstrate that the [immigration judge] did not conduct herself as an impartial judge but rather as a prosecutor anxious to pick holes in the petitioner’s story.”

• “[W]e are sorely disappointed that the [immigration judge] here chose to attack [the respondent’s] moral character rather than conduct a fair and impartial inquiry into his asylum claims. 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.”

• “[W]e are left wondering how the [immigration judge] reached the conclusions she has drawn. Her opinion consists . . . of a progression of flawed sound bites that gives the impression that she was looking for ways to find fault with [the respondent’s] testimony.”

Presence of improper extra-legal bias

• “The [immigration judge’s] reliance on impermissible stereotypes taints his credibility determination as a whole, and thus prevents us from conducting any fair assessment of this record.”

• “The [immigration judge’s] homosexual stereotyping likewise precludes meaningful review in this case. The [immigration judge’s] reliance on his own views of the appearance, dress, and affect of a homosexual led to his conclusion that [the respondent] would not be identified as a homosexual.”

• “The immigration judge . . . erred, however, in denying [respondent’s] application for [Convention Against Torture] relief, ironically exhibiting some of the same misconceptions about the transgender community that [the respondent] faced in her home country. The [immigration judge] failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered [the respondent] to be ‘still male,’ even though [she] dresses as a woman, takes female hormones, and has identified as woman for over a decade.”

• “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.”