© Attorney Farhad Sethna 2013
While most immigration court judges tend to be polite and professional, there will be some immigration judges (IJ’s) who will decide that they can behave rudely to attorneys as well as to represented and unrepresented aliens. The purpose of this article is not to disparage any judges or criticize any particular individual. The purpose is to highlight the fact – as any practicing attorney will attest – that all judges are definitely not created equal. While most IJ’s do a good job under pressure, there are some judges for whom the pressure has simply become too much. It could also be argued that some judges bring pressure on themselves by pushing cases to trial. The EOIR’s (Executive Office for Immigration Review) requirement that IJ’s move cases faster by offering respondents an “expedited date” for their individual hearing places even more pressure on IJ’s to move cases along. Then there is the sheer volume of the caseload: When an IJ regularly has to move a docket of 40-50 cases in one afternoon at a Master hearing (more about Master and Individual hearings on my website), you can imagine the pressure the IJ is under. The various pressures of the job manifest themselves in the conduct of the IJ’s.
It would not be so bad if immigration judges did not have the immense power that they do. However, an immigration judge literally holds the power of life or death over an individual. Being deported from the United States is akin – in many cases – to a life sentence away from family and friends and the only life that the deportee may have experienced. Sometimes, it could be a death sentence, if the person could be persecuted or prosecuted in their home country, or sent back to a country where they would experience very harsh prison conditions.
Therefore, how do you recognize that you are facing a difficult immigration judge?
Determining the demeanor of an IJ will probably be very clear. It may manifest itself in the way that the judge acts, the judge’s mannerisms, facial expressions, and body language. It may also manifest itself verbally, in the form of statements and remarks to counsel or to the respondent.
How do you make sure you are not overreacting? In other words, just because an IJ is brusque, does not mean that he or she is being needlessly difficult.
I would advise that you request a CD-audio recording of the hearing or hearings in court before that particular judge. Such a copy may be obtained simply by writing to the court administrator in the local immigration court where the hearings where held. You will need to enclosed a self-addressed, stamped envelope with enough postage to cover the cost of mailing the CD back to the requestor. Once you receive it, listen carefully to the recording.
While immigration court proceedings are recorded, these are only audio recordings, not video recordings. Further, it has been this counsel’s experience that the quality of the audio recording varies from court to court and obviously from individual to individual. Some judges are very clear while others are not. Some DHS attorneys are very clear while others are not. Likewise, some counsel and respondents are very clear while others may not be. It is even harder when judges tend to speak very quickly, perhaps to expedite cases before them. Such quick commentary is not picked up very well by the audio recording system.
When you listen to that recording, you will begin to see how difficult it is to understand some of the proceedings in immigration court. You will also see how little time is available to people to respond to questions posed by the immigration judge.
Typically, a difficult immigration judge will do one or more of several things:
• Frequently interrupt counsel’s questions to inquire of the witness;
• Ask multiple questions of the respondent at the same time;
• Not allow the respondent to finish a response;
• Warn the respondent or the witness that he or she is not being truthful and is losing credibility in the court’s opinion;
• Not listen carefully to a respondent’s answer and blame the respondent for not answering the question;
• Not attempt to understand the respondent’s answer or a nuance within that answer which would have either answered the judge’s question or would have led to a further relevant question;
• Take up matters that are more appropriately addressed by the DHS’ prosecutor. In essence, the immigration judge does the work of the DHS;
• Give undue weight to issues that are not necessarily indicative of a respondent’s good moral character or credibility;
• Set up a high standard for evidence sought to be introduced;
• Raise barriers to relief being sought by the respondent before the DHS even has a chance to make such objections;
• Deny the applicant the ability to raise certain applications for relief before the DHS even has a chance to make such objections;
• Make faces, roll eyes, or stare down a witness or use intimidating body language that appears to diminish the value of a witnesses’ or respondent’s testimony;
• Raise issues for the DHS to then latch upon and use in its own arguments, even though the DHS may not have thought about those issues beforehand.
This is only a partial list of the many ways that an immigration judge can be extremely difficult and overstep his or her boundaries. The immigration judge, as is a judge in any proceeding, is supposed to be a neutral adjudicator of the facts and a neutral interpreter of the law. By indulging in behaviors such as the ones indicated above, immigration judges who deviate from a neutral position are clearly not fulfilling the enormous responsibility and authority that has been bestowed upon them.
There have been many instances where I have requested audio CD’s of hearings and I have noted that the immigration judge in those cases basically did the work of the DHS in those cases. The DHS did not even have to raise legal arguments. The immigration judge did it for them. The DHS did not have to question the respondent. The judge did it for them. Basically, all the DHS attorney had to do was show up. The IJ did the DHS attorney’s job.
So how do you counter a difficult immigration judge? I’ll discuss that in another article!
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.