Wednesday, November 26, 2008

Fourth Circuit Adds to "rising tide of criticism" of Immigration Decisions

Federal Courts of Appeals judges, especially Judge Richard Posner of the Seventh Circuit, have bveen critical of ther immigration bureuacracy's reasoning in removal cases.  The Fourth Circuit, perhaps the most conservative circuit in the United States, in an opinion by Judge Diana Gribbon Motz adds to the "rising tide of criticism":

"An IJ cannot have it both ways, finding an applicant and his documents incredible for one purpose and yet relying on them for another. ... This sort of judicial sleight of hand constitutes the very definition of an abuse of discretion. ... Before concluding, we note that academic literature and court decisions have grown increasingly strident in their criticism of the immigration review process. Our finding today adds to this rising tide of criticism."  (emphasis added).

Zhu v. Mukasey (4th Cir. Nov. 25, 2008).


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But let us see Posner or Gribbon-Motz issue an Immigration Judge's oral decision, immediately following two or three hours of testimony and cross-examination, presented more often than not by less than stellar attorneys on both sides, with no federal rules of evidence, and with every word translated from Spanish, Armenia, Arabic, Chaldean etc., etc. It is a miracle that the Immigration Judge decision is issued on the same day as the merits hearing. Having read many of them, I challenge Posner, Gibbon-Motz, Professor Johnson or any other reader of this blog to provide evidence of a fairer or more efficient system in any other country on the face of the earth.

Posted by: Thomas Lillich | Nov 26, 2008 9:57:22 AM

While some of the criticisms are justified, the Federal Circuits don't seem to realize that they don't have a receptive audience inside the immigration courts. After reading many decisions which are openly critical of immigration judges - often because they've been remanded down - I'm struck by how often the criticisms show the federal judges' complete lack of understanding about how immigration courts operate.

All the judges have ridiculously large caseloads and almost no assistance - three or four judges will often share one judicial clerk between them and only enjoy (at most) one afternoon a week when they aren't in proceedings when they can respond to motions, write decisions, and keep up with the law. Judges regularly have proceedings run through their lunch hours. There are almost no rules of evidence applicable. Many immigration attorneys misrepresent law and facts to the courts or are completely incompetent and can't be relied on. When making a decision - which can rarely be anything but oral because of the time constraints - judges can really only rely on their memory, their notes, and whatever resources they happen to keep readily accessible on the bench. Moreover, the use of documents in immigration proceedings cause great difficulties - most are not (and can't really be) authenticated by the foreign government which allegedly produced them, so immigration judges are having to make credibility determinations on little more than gut reactions.

Often, the criticisms aren't even necessarily legitimate. Take the Fourth Circuit case. I don't know precisely what the IJ found or held, but is the Circuit aware that an adverse credibility determination for asylum isn't necessarily supposed to bleed into a CAT determination?

There are some very bad IJs out there, but most of them are trying. They're just operating under difficult conditions and are asked to make such quick, shoot-from-the-hip decisions that mistakes are certain to occur. Then the IJs get blamed for what's essentially a structural problem: immigration "trials" aren't really trials, they're not designed to be trials, and they don't give the protections of normal civil (let alone criminal) procedure, but the consequences are so dire that people feel they SHOULD be regular trials.

I wish that the Circuits would put the blame for this mess where it belongs: Congress.

The structure of the courts needs to be revised. But right now the laws and regulations related to defensive immigration proceedings are so messed up, even a "perfect" IJ would be relying on gut reactions and caffeine pills to get through the day.

Posted by: Sarah | Nov 26, 2008 10:02:52 AM

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