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Thursday, January 26, 2006

More Fun With Immigration Judges

Yesterday, at How Appealing, Howard Bashman linked to this post by Justin Scheck at CalLaw.com's "Legal Pad," siding with Judge Kozinski in this Ninth Circuit immigration decision handed down on Monday, in which he (Judge Kozinski) castigates the majority (Reinhardt, Berzon) for showing "such disdain and disrespect" for Immigration Judges (IJs), concluding that "a circuit judge shouldn't pretend to be an immigration judge."

I have several biases here. First, my former boss was the other (non-writing) judge on the panel, so I'm naturally inclined to defend this majority. Second, my feelings about the current status of immigration law and the absurd rate at which the agency gets it wrong are well-documented, particularly on this Blawg, and so a natural skepticism of the administrative process in all immigration cases seems hard, in my view, to avoid. Third, I have always been a big fan of the reigning Male Judicial Superhottie, but at least partly because I think it has always been one of Judge Kozinski's (more admirable) characteristics that he's not afraid to call it as he sees it, even when that means angrily (and publicly) criticizing his own colleagues (e.g., this opinion from September on judicial misconduct). Why that translates into reticence when his colleagues offer similar treatment vis-a-vis IJs isn't entirely obvious to me.

In any event, however you come down on the merits of this particular case (which, by the way, is difficult to evaluate without the administrative record), Judge Kozinski's core objection is, I think, to be found on page 863 of the slip op. (page 32 of the PDF). He writes: "None of this bears any resemblance to administrative law, and none of it finds support in the statutes Congress has given us to apply, or the rules the Supreme Court has instructed us to follow." The problem, though, is that DHS's own internal process long-since ceased to "bear[] any resemblance to administrative law." That is, Judge Kozinski's objection, if I read it correctly, is that the Ninth Circuit has turned itself into a quasi-immigration court of first instance. I actually don't disagree. But given the way things are going on the administrative side, I'm not sure I (or several of the other circuits, for that matter) would agree that that's such a bad thing.

Posted by Steve Vladeck on January 26, 2006 at 09:54 AM in Current Affairs, Steve Vladeck | Permalink


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Verification, sweet precious verification of my story.

I received an e-mail from a retired Immigration Judge. It seems that the Assistant Chief Immigration Judge who looked the other way when Immigration Judges brough booze into a federal prison has been demoted.

Robert P. Owens, who oversaw the Eloy, Arizona Immigration Court that Immigration Judges Sean Keenan, Thomas O'Leary and John Davis brought booze into. A court located within the confines of a federal prison. Has been demoted.

Judges Keenan, O'Leary and Davis have still not been prosecuted for violating federal law, but the former Assistant Chief Immigration Judge who looked the other way has been demoted.

You can verify this by checking the EOIR website.

Posted by: Todd Schoenrogge | Mar 11, 2006 6:10:29 PM

Before reading the following please note that during my tenure with the Dept. of Justice I received several performance based awards.

Immigration Judges Appear to be above the law while whistleblowers who report crimes comitted by those judges are subjected to false charges.

Immigration Judges violate federal law and the Chief Immigration Judge cites non-existent prior misconduct to justify removal of whistleblower.

Chief Immigration Judge Creppy, to justify his decision to remove me from federal service for disclosing immigration judges violating federal law by bringing booze into a federal prison lied by stating that I had previously been found guilty of misconduct involving alcohol.

Based on Judge Creppy's own words in his March 16, 1998 letter, there was never a charge of misconduct involving alcohol or a decision reached finding me guilty of that offense which was never charged.

Proof that misconduct involving alcohol was never charged can be found in the brief prepared by Immigration Judge Staton's brief (Exhibits A1-A133 in my statement of facts and issues submitted to the MSPB).

That incident involved Judge Owens terming my off-duty contacting of medical personnel as disruptive to the workplace in order to force my dismissal of legal claims against himself and Judge Creppy.

Judge Creppy's own words in dismissing that matter were, "...the matter of your removal as proposed by Judge Owens has been closed without action...."

Fast forward to the present when Immigration Judges violate federal law by bringing booze into a federal prison in violation of federal laws.

Now, Judge Creppy states that I was found guilty of prior misconduct involving alcohol. Per his own words in 1998 the matter was closed without action. Judge Staton's brief shows that misconduct involving alcohol was not even charged.

It is obvious that Judge Creppy knowingly lied in this matter to protect Immigration Judges and other management personnel from federal prosecution and to unjustly fire the whistleblower.

Posted by: Todd Schoenrogge | Feb 23, 2006 7:31:58 PM

When I saw Reinhardt have to remind Kozinski about the basic meaning of Chevron in court (i.e.- that, in that case, that Kozinski did not have the power to determine that female genital mutilation was not persecution, as he was trying to argue, since this had been decided by the BIA and was not, on any plausible reading in violation of the statute) I lost what little respect I had for him. Given that his family got to come to the US because of the singularly stupid reading given to refugee law by the US for years you'd expect a rather different approach.

Posted by: Matt | Jan 26, 2006 5:27:23 PM

It is as if the Reinhardt majority (of 2) and the Kozinski dissent reviewed two completely different records. The Reinhardt opinion appears perfectly reasonable: the IJ seized on minor discrepancies and his own non-expert forensic document analysis to discredit otherwise compelling testimony by the asylum applicant.

Then read Kozinski's dissent: the applicant was caught "red-handed" trying to trick the IJ into thinking photos of his brother's injuries were photos of his own (alleged) injuries.

On this one, I'm with Kozinski. If immigration proceedings allowed a jury and functioned under typical rules of civil procedure, the jury would've been perfectly within its charge to discredit virtually everything the applicant said. After all, the applicant included information related to his brother in his own application, without bothering to explain that (unlike everything else in the record) these particular photos did not actually corroborate his own alleged injuries. And it got worse: the applicant professed to have no knowledge of the whereabouts of his brother, but then miraculously "found" him when the IJ granted a short continuance for the purpose of allowing the applicant to present this obviously-essential witness.

It seems that in this case we hold the trier of fact -- the IJ -- to a ridiculously high standard. He saw the applicant lying, and the applicant's own attorney did and said nothing in court to rehabilitate the witness. Reinhardt says the applicant must be given an opportunity to explain the discrepancy; Kozinski responds that he was -- his own attorney (not a mere "potted plant" in Kozinski's words) had plenty of opportunity of redirect, but never once tried to rehabilitate his witness. Reinhardt seems to be applying law (the requirement that COURT must provide an opportunity for the applicant to explain a discrepancy) that was formulated with respect to pro se applicants to a situation involving a licensed and presumably competent immigration attorney. The obvious answer? The attorney did not try to rehabilitate the witness because he/she would only allow the witness to dig a deeper hole by doing so.

Then Reinhardt treats as evidence the representations of the applicant's counsel ON APPEAL, finding that the photo substitution problem was caused by a sloppy asylum preparer. Kozinski needs to remind him that statements of counsel are not evidence.

Again, ask yourself: if a jury had heard/seen the same evidence, including the admission that certain parts of the applicant's story were copped from his brother's story, would they have been "unreasonable" to have discredited the applicant's otherwise uncorroborated story? Of course. But put a trained trier of fact in the same role and somehow the same inference becomes "unreasonable."

Posted by: ColdWarrior | Jan 26, 2006 5:00:01 PM

I should add a line from an earlier Ninth Circuit opinion, that notes how the bulk of the problem isn't the IJs' _fault_ -- it's the system's:

"[U]nder current circumstances, it is difficult for IJs to explain their often complicated decisions adequately. In fiscal year 2003, the most recent year for which data is available, the Executive Office for Immigration Review adjudicated almost 300,000 cases in Immigration Court. Executive Office for Immigration Review, U.S. Dep't of Justice, FY 2003 Statistical Year Book B2 fig.1 (2004). More than 65,000 of those cases involved asylum claims. Id. at I1 fig.13. The caseload pressures are especially heavy in Los Angeles, where the IJ in this case sat. The Los Angeles Immigration Court heard more than 28,000 cases, id. at B3 tbl.1, more than 12,000 of which involved asylum claims. Id. at I3 tbl.6. As of January 2005, only twenty-six Immigration Judges worked in the Immigration Court in Los Angeles. EOIR Immigration Court Listing, http:// www.usdoj.gov/eoir/sibpages/ICadr.htm (last visited Feb. 16, 2005).

Those sobering realities, however, do not change long-standing principles governing judicial review of agency decisions or the regulations governing the BIA's review of IJ opinions."

The full opinion is available here.

Posted by: Steve Vladeck | Jan 26, 2006 12:08:19 PM

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