Sunday, December 20, 2009
John Roemer writes for the Los Angeles Daily Journal:
The rocky career of Los Angeles Immigration Judge Anna Ho hit another bump Wednesday as a federal appellate panel again blasted her bench behavior in deporting an illegal immigrant to Mexico.
Ho, a frequent target of displeasure by 9th U.S. Circuit Court of Appeals judges, denied the woman a fair hearing over her 4-year-old U.S. citizen son's psychological problems, the panel held.
That prejudiced Araceli Cruz Rendon's ability to present evidence supporting her bid to remain in the U.S., wrote U.S. District Judge Jeremy Fogel of San Jose, who sat on the panel by designation alongside circuit judges Harry Pregerson and David R. Thompson.
The panel ordered the Board of Immigration Review to assign Ho to rehear the case. Cruz Rendon v. Holder, DJDAR 16875.
"We are deeply troubled by the IJ's conduct in this case, which exhibits a fundamental disregard for the rights of individuals who look to her for fairness," Fogel wrote.
His opinion identified Ho by name, a departure from the court's standard practice that guaranteed she will be investigated by the U.S. Department of Justice's office of professional responsibility.
Immigration court rules prohibit Ho from speaking to the media. The president of the National Association of Immigration Judges, Dana Leigh Marks of San Francisco, said she could not comment on Ho directly, but contended that all immigration judges are overworked.
"We judges are extremely disadvantaged by the docket pressures we face," she said Wednesday. "That can cause the most reasonable people to lose perspective."
Indeed in 2005, the same year Ho heard the Cruz Rendon case, Circuit Judge Marsha Berzon described the "sobering realities" of the crowded docket in Los Angeles, where 26 immigration judges disposed of more than 28,000 cases, including more than 12,000 asylum claims.
In the case decided Wednesday, Cruz Rendon entered the U.S. illegally in the early 1990s, had a child who was automatically granted U.S. citizenship and supported her son and herself by ironing garments for a clothing manufacturer. The child's father left at birth. Immigration authorities began deportation proceedings in 2004.
At a 2005 hearing, Ho conceded that Cruz Rendon had satisfied three of the four requirements that might allow her to remain in the country: she had been physically present in the U.S. for at least 10 years, had been of good moral character and had not been convicted of any of a list of offenses.
The fourth condition was the problem. To qualify, Cruz Rendon had to show that deportation would result in "exceptional and extremely unusual hardship" for her child.
To make that case, Cruz Rendon presented a written psychological evaluation of her son, Jose, showing he exhibited symptoms of Attention Deficit/Hyperactivity Disorder, plus possible learning and speech disabilities. Such children do not respond well to changes in environment or in caretakers, the report noted. It concluded that separation from his mother or relocation to Mexico would create emotional distress for Jose and would worsen his condition.
Cruz Rendon testified that she feared Jose would suffer in Mexico, because based on her own childhood experience she believed that children often are mistreated and beaten in Mexican schools.
Ho criticized Cruz Rendon's lawyer for failing to "go on the Internet to print some information about schools in Mexico."
When Cruz Rendon said she would be unable to earn more than $5 or $10 a day in Mexico, Ho cut off that discussion because Cruz Rendon had not actually looked for a job in Mexico.
After some further dismissive comments, Ho delivered her oral ruling:
"The child is, as I said, only four years old. There is not definite indication as to exactly what the problem the child has. There is no evidence presented by the psychologist that whatever the hyperactivity this child had, the child is not going to grow out of it as the child grows older. I don't know. There is no evidence presented that there is no such assistance in Mexico, so I can't grant this case.
"In fact, I have read many articles that they have special education in Mexico. And, Mexico is really trying very hard to work on this."
When Cruz Rendon's lawyer asked for a continuance to marshal further evidence about schools in Mexico and Jose's condition, Ho refused, saying she did not want to postpone matters.
The panel faulted Ho's entire approach. "She appeared most concerned with the purported inconvenience to herself resulting from delay of the case," Fogel wrote. "We have repeatedly warned that 'a myopic insistence upon expeditiousness' will not justify the denial of a meritorious request for delay," he said, citing language in a prior case.
Further psychological documentation could have overcome Ho's belief that Jose might simply outgrow his problems, Fogel added. "Moreover, had Cruz Rendon been afforded time to obtain evidence regarding the schools in Mexico, the IJ might not have relied impermissibly upon her own unsupported opinion" about Mexico's special education efforts.
The panel noted other cases in which the circuit found fault with Ho's judicial demeanor, including an opinion in June holding that Ho showed "obvious bias" and "badgered [a petitioner] with loaded, pejorative questions and effectively abandoned her role as a neutral fact finder."
The circuit's problems with Ho go back for years. In 2006, the Daily Journal reported that Ho and five other judges were under scrutiny by the U.S. Department of Justice as part of a policy that required an investigation of any immigration judge criticized in a circuit court decision.
She once deported an American citizen, despite being shown his Oregon birth certificate. In that case Ho "did not conduct herself as an impartial judge but rather as a prosecutor anxious to pick holes in the petitioner's story," the circuit observed. Rivera v. Ashcroft, 394 F.3rd 1129 (2005).
Ho has worked at various immigration courts on the West Coast, where her asylum denial rates ranged from 79.9 percent in Seattle to 67 percent in Los Angeles, according to a report by the Transactional Records Access Clearinghouse, a Syracuse University unit that studies immigration cases.
Ho is herself an immigrant, a native of China who was raised in Taiwan, according to an interview that she granted to a Seattle-based weekly newspaper in 1998.
Ho told Northwest Asian Weekly that after leaving Taiwan, she spent time as a young adult in Spain and learned to appreciate the differences in people as well as learning Sichuan, Cantonese, Spanish and English. "I try to pay attention to what people are saying," she told the newspaper.
One Los Angeles authority thinks Ho may be taking the circuit's criticism seriously. Niels Frenzen, who directs the USC Law Immigration Clinic and has appeared for clients before Ho, said old cases such as the Cruz Rendon matter continue to haunt her.
"But her reputation has improved in recent years," Frenzen said. "She is running her court more fairly than in the past. It is certainly very unusual for an appellate court to name names, and I think Anna Ho has gotten the message."
Frenzen faulted Department of Justice lawyers who defend questionable Ho decisions before appellate panels. "Why is the DoJ fighting these appeals? When they see glaring due process violations, they should in fairness join the side of the applicant," he said.