© Attorney Farhad Sethna 2013

In the previous article, I described how one recognizes a difficult immigration judge.  In this article, I am going to discuss my suggestions for how to handle a difficult immigration judge.

A difficult immigration judge is handled with caution.  Obviously, if the judge is difficult he or she believes that he or she is very knowledgeable about the law and about immigration court practice.  Sometimes, that may be true, and in some other cases it may not be quite so true. Therefore, before you can challenge a difficult immigration judge it is necessary to be just as well versed  – or better – in the law and in practice as the judge so that you can make your counter argument respectfully and professionally.

Please note: in no manner should you ever take your conflict with the judge to a personal level.  This would be immediate grounds for the judge to file a disciplinary action against you or to find you in contempt of court.  Nobody- least of all an attorney- wants to be in such a difficult situation. To be disciplined could mean potential loss or suspension of a law license, and the attorney’s very livelihood.

That being said, how do you counter a difficult immigration judge?

Based on the judge’s behavior, there are several strategies that might be used, either singly or in conjunction, to address a difficult immigration judge.  These strategies include but are not limited to the following:

•    Ask for clarification of the judge’s ruling. Ask the judge why he or she may have made the ruling and what authority the judge may be employing in order to justify his or her decision.

•    Raise an objection if the judge is badgering your respondent.  You can state words to the effect of “the court should permit respondent time to answer properly” or “perhaps the court would care to rephrase the question for the respondent since the respondent may not have understood”, or that questions being asked by the court should not be answered by the respondent because they potentially impinge upon the respondent’s right against self-incrimination (this would only be appropriate if the respondent could provide testimony which may result in his eventual prosecution on criminal charges).

•    Challenge the immigration judge by citing circuit case law or BIA precedent decisions which support your argument and undermine the judge’s ruling.

•    While the court has the authority to interject questions during both direct and cross-examination, sometimes the questioning becomes too abrupt, or breaks counsel’s line of questioning as well as the respondent’s concentration.  In such a case, ask the court very respectfully to permit the respondent’s counsel to complete a line of questioning before interjecting questions in order that the respondent’s frame of reference not be shifted, thereby confusing the respondent.

In all matters, please remember that the immigration judge is the sole arbiter of practice and procedure in the courtroom.  While you may “respectfully request” until you are blue in the face, it does not mean that the immigration judge is going to accede to your request.  And if the judge does not accede, you have to soldier on, making your objections on the record.

In drastic cases, you can take two other steps:

•    Object to the judge’s questions.  This may seem rather foolish, given that the person listening to your objection and ruling on your objection is going to be the same judge who raised the objectionable issue in the first place, but there is a significant benefit in doing so. We will cover that later.

•    Alternatively, in truly egregious cases, you can ask the immigration judge to recuse himself or herself.  Recusal is granted only in the most severely abusive cases, and should not be used lightly.  Again, the judge is unlikely to recuse himself or herself, but insist that a written decision be issued. There are several BIA and circuit court cases on this point, as well as a US Supreme Court case on recusal.  Additionally, the EOIR has issued a memorandum explaining the procedure for recusal and the standards for doing so.

Both the above are mechanisms which should be used only in the severest of cases.  However, even if these motions are either not granted or the egregious behavior continues, your objections serve two purposes:

1.    They place the immigration judge on notice that you are a tenacious advocate for your client and will not be swayed by his or her objectionable behavior; and

2.    You set the grounds for appeal of the judge’s final decision, if it is not favorable.

In conclusion, in order to object to an immigration judge’s behavior, you must be well versed in the law and the facts situation of the particular case.  Make every objection or request of the court in as a polite and professional manner as possible, taking care to ensure that you do not make any personal attacks on the judge.  If all else fails, ask the IJ to recuse himself or herself.

In subsequent articles I will cover preparing a witness and opening and closing arguments in immigration court.

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Copyright, Farhad Sethna, Attorney, 2013

About the author: Attorney Farhad Sethna has practiced law for over 20 years.  Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases.  Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information.  Please consult a qualified immigration attorney for advice on your specific case.

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