Sunday, October 17, 2021

Good judge? Bad judge?

Guest blogger: Kelsea Villanueva, law student, University of San Francisco

Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period. Bad attitudes and questionable decision making within the immigration courts often cause the most noise because the impact is often more than a rude remark. While I do not believe problematic judges make up the whole picture of immigration courts, just one bad judge can be enough to impact the lives of many, and I only wonder whether it is the system that perpetuates behavior, the history and beliefs of immigration, or both that give rise to bad experiences.

Surprisingly in our own city, San Francisco Judge Nicholas Ford was the subject of a complaint that was sent to the U.S. Justice Department for being hostile and having biased treatment of immigrants in the courtroom. The accusations stated that he belittled migrants’ stories and struggles by making inappropriate comments. One account stated that he said “I can tell an indigent person when I see one, and you can afford an attorney” in response to someone who claimed they could not pay. Many accounts also made it a point to mention that he had previously been criticized for jailing a pregnant woman without bail for a nonviolent crime – this gives an idea of his character in court. When he was first appointed by the Attorney General under the Trump administration, Ford had been a judge in the criminal justice system and apparently had no prior immigration law experience. Other judges that have similar backgrounds can take biases from the criminal justice system and bring them into the immigration law field. There is the risk that the treatment of criminals becomes synonymous with the treatment of immigrants.

Even if judges like Ford represent a minority, the behavior exhibited by him is not unusual in immigration courts. In Jacinto v. INS, 208 F. 3d 725 (9th Cir. 2000), it was difficult for the respondent to even answer basic questions about her family’s struggles; she was constantly faced with interruptions by the immigration judge and a blatant lack of patience. Most people regardless of being an immigrant or not could become overwhelmed during questioning or lack of information about legal procedures. Lacking compassion and basic manners, whenever Jacinto was asked a question regarding why she was seeking asylum, the immigration judge or government attorney would interrupt her midsentence and not allow her to ask any clarifying questions. The transcripts reveal a sense of confusion and urgency, as they treated her as if they were in a rush and like she was wasting their time.

At the end of the day, being an immigration judge is a job and just like any other job, there are expectations. The overwhelming number of responsibilities that an immigration judge is tasked with like scheduling hearings, making determinations on a detainee’s competency, deciding removability, and are huge responsibilities and involve great power over a person’s life. However, immigration judges are limited in their authority; for example they cannot terminate proceedings simply for humanitarian reasons. So this may cause an internal friction. Perhaps these contradictions of power contribute to the festering of hostility that seems to seep its way into the attitudes of some immigration judges. For example, an immigration judge may decide the mental competency of a detainee but is not able to terminate proceedings due to “humanitarian reasons” as was the case in Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir.1977). The fact that a respondent had nothing to go back to in Nicaragua due to natural disasters did not matter. In a system that seems to favor efficiency and national security, individual lives get lost in the entire process. After years in the practice, it is easy to lose sight of the humanity and to prioritize numbers on the docket and completing quotas. Quotas set in place, like those from the Trump administration only encourage that thought process.

We are all familiar with the way in which our environment can shape our own perceptions, especially when certain processes become routine and certain beliefs are built into a much larger system. Despite the courtroom being a place of justice, that does not mean that the much larger and historically problematic immigration system has not been a prevalent factor in shaping attitudes we see today. First, the whole immigration system and detention centers used to detain thousands of immigrants around the country is very secretive which means there is little room for accountability. Detention centers become businesses with the use of private prison companies, and this in turn feeds into the commodification of immigrants as numbers and not people. Additionally, the statutes that create the grounds for removal and grant authority for the government to detain can create stigmas that heavily criminalize the individuals. A noncitizen becomes deportable if they commit an aggravated felony. When people hear “aggravated felony” they tend to think of crimes such as murder or robbery, when in reality they may just be relatively minor offenses. The 1996 laws increased penalties for immigration law violations and expanded classes of non-citizens subject to removal for commission of crimes feeding the system that overall favored removal. The easier it becomes for an immigrant to be labeled a criminal, the perception of immigrants becomes more tainted in the eyes of immigration judges.­

What consequences do immigration judges actually face for their misconduct? With respect to the allegations against Judge Ford during his time as an immigration judge, the many accounts of misconduct collected by the local chapter of the National Lawyers Guild led to an investigation. The Justice Department closed the complaint against Ford with no word on any consequences he faced. Many months later, he resigned issuing a scathing letter. But we still have much work to do in these circumstances because the “Justice” Department did not appear to hold him accountable.

bh

https://lawprofessors.typepad.com/immigration/2021/10/good-judge-bad-judge.html

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