Thursday, November 17, 2011

Immigration Judge Must Remain Neutral and Not Assume Role of Opposing Counsel

Abulashvili, et al. v. Attorney General of the U.S.

Third Circuit: Board of Immigration erred in denying asylum to Georgia citizens who overstayed their visas

Issue(s) Presented: Whether the BIA erred in dismissing Petitioners’ asylum application. Whether the BIA erred in denying a Motion to Reopen. Whether Petitioners’ due process rights were violated during the immigration proceedings.

Brief Summary: On Petition for Review of an Order of the Board of Immigration Appeals (“BIA”), Petitioners sought review of an order dismissing their application for withholding of removal and protection under the Convention Against Torture (“CAT”) and an order of the BIA denying their motion to reopen. In his asylum application, Petitioner Abulashvili claimed that he had been persecuted in Georgia on account of his membership in the opposition Labor Party of Georgia (“LPG”) and his knowledge of government corruption as determined from events in September 1998. At that time, Abulashvili had, according to his application, witnessed a shooting and been subjected to police and governmental threats and intimidation. During his removal proceedings, Abulashvili conceded the charge of removability but sought relief based on his past persecution and fear of future persecution. First focusing on the adverse credibility determination and Motion to Reopen, after a full review of the transcripts and records of the case, the Court found the determination was not supported by substantial evidence. The Court noted that Abulashvili’s difficulty with the English language and inability to accurately communicate was not taken into consideration and may have negatively impacted his ability to communicate clearly in his application. The Court further noted that the Immigration Judge misread the asylum application which contradicted her findings regarding it. Finally, the Court noted that the Immigration Judge relied on minor inconsistencies and her findings were contradicted by the record as a whole. Next turning to the due process claim, the Court noted that on cross-examination, an attorney for the government, who was “woefully unprepared,” had confined his questioning based on his lack of understanding of the facts. The Immigration Judge then interjected herself and took over the cross-examination, asking 87 questions. Explaining that an immigration judge has a responsibility to remain neutral, the Court determined that Petitioner was denied a full and fair hearing by a neutral and impartial arbiter of the merits of his claim when the Immigration Judge assumed the role of opposing counsel. Accordingly, the Court granted the petition for review, vacated the BIA’s orders, and remanded the case to the BIA for further proceedings.


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