422. Non-Judging Crimes

Immigration judges aren't, as their name might otherwise imply, judges.  They're Department of Justice employees, complete with union. 

They're not judges in another sense, too, according to a South Florida Sun-Sentinel (in Miami, even the sun needs a sentinel) article posted by Sonia Ansari over at Our Curious Immigration Laws.  They don't have to follow the law but can just indulge their mood swings:

Of South Florida's 26 immigration judges who saw large numbers of asylum seekers, grant rates ranged from 22 percent to 98 percent.

By way of comparison, here's a chart of the rate at which Bernalillo County (i.e., Albuquerque) Metropolitan Court judges dismissed drunken driving charges in 2006.  The rate varied from 20% to 51%, a mere 31% swing.  Amateurs.  Florida's immigration non-judges had a swing two and a half times that.

And then you toss in New York's Immigration (Non-)Judge Margaret McManus, who denied just 9.8% of the petitions presented to her, according to this chart put together by researchers at Syracuse University.

Want to know just how arbitrary and lawless immigration judges can be?  One of them just granted political asylum to a German couple who claimed they were being persecuted by school-attendance laws.  (The story got a lot of ink in the German press last spring when the application was filed, but I don't see any reaction to the ruling yet.)

If even-handed enforcement of democratically-enacted child-welfare laws is political persecution, then what should we call deporting people because a non-judge has an upset stomach?

Back in 2006, the Eleventh Circuit reversed a decision by Immigration (Non-)Judge Bruce Solow (78.2% denial rate) to deny asylum to a Chinese practitioner of Falun Gong, because 

Solow's denial "was based on his own knowledge of Falun Gong, and was not supported by the record."

The Circuit Court's opinion stated that, "The Immigration Judge [found] Zheng's responses to questions regarding the nature of Falun Gong insufficient to show that 'he kn[ew] anything', declaring Zheng's responses to be 'as instructive as opening a fortune cookie' and 'quite off-the-wall.'" ...

Even worse, one of the reasons Judge Solow questioned Zheng's credibility was because he was "sniffling like crazy" during the hearing, even though Zheng had, in Solow's words, practiced Falun Gong because it "fixed him up."

According to the Eleventh Circuit opinion, Solow "commented on Zheng's sniffling twice during the hearing. The second time, he appeared almost hostile about it: 'Still sniffling, huh?... Here, I'll give you a tissue. Yeah. Go ahead, have a nice tissue on the Court. Go ahead.'"

That's from either Frank Houston or Emily Witt, or both, in the Miami New Times news blog from 2006.  The post includes a link to the opinion.

In another case, involving a former cop named Roscoe Campbell from the Bahamas who claimed his life was in danger because he blew the whistle on corrupt ex-colleagues, the Eleventh Circuit affirmed Solow's denial of the asylum petition despite the following:

While it is true that the IJ [more properly, I(N-)J] interrupted Campbell's testimony throughout the hearing, a review of the record indicates the purpose of most [!] of the interruptions was to gain more clarification with regard to his testimony.  The IJ's inappropriate conduct was not limited to Campbell, but was directed toward the government's attorney, too, and, therefore, it does not necessarily show bias against him as much as improper conduct generally.

Oh, if it's just improper conduct generally, that's okay, then.  The Eleventh Circuit added:

While it is true the IJ appeared impatient and annoyed by some of Campbell's responses and made some unnecessary and unprofessional comments at the hearing and in his oral decision, Campbell has not shown that the outcome would have been different in the absence of those comments and interruptions.

How would one show that an outcome would have been different if a judge, or non-judge, had behaved professionally?  Hard to tell if the Eleventh Circuit is being serious in this passage, or when it observes that Campbell's attorney didn't "object[] to the IJ's questions," as if objecting to the judge about the judge's questions in order to obtain a ruling from the judge concerning the judge was an option.

As most of you have probably guessed, the Eleventh Circuit's opinion, while making Solow sound pretty bad, actually downplayed what he'd done.  A complaint Campbell filed with the DOJ's Office of Professional Responsibility,

described Solow's behavior during the Campbell hearing as "abusive and intemperate." The transcript showed, he said, that the judge had "commandeered" the entire direct examination. Campbell's attorney asked only 13 questions but the judge asked more than 200 "in rapid fire fashion -- each time interrupting Mr. Campbell's answer to the previous question." He continually accused Campbell of lying and made mocking jokes, such as asking Campbell whether he spoke to fictional characters from detective novels, for example Zelda Jones (from a series of books by Sharon Duncan), at the U.S. Embassy.

At the close of evidence, said the complaint, the judge stated, "This is so vague and general you could vomit and I could vomit because I can't, he wants me to become a magician here and grant it merely based on this kind of testimony," and "I think this case, quite frankly, I hate to use the word but I think it stinks. It smells bad because there's no way, this is pie in the sky."

Somehow, I get the impression that he didn't really hate using the word "stinks."

The amazing thing is that, after the passage of years, the Board of Immigration Appeals actually came down on Solow, siding with the abused rather than the abuser.  Campbell will get a new hearing before a new non-judge.

Meanwhile, Solow remains on the non-bench.  He's defending himself on the ground that he has absolute discretion to do anything he wants short of taking bribes.  In other words, that the Department of Justice "has no jurisdiction to investigate immigration judges unless there is an allegation of corruption." 

An agency has no jurisdiction to investigate - not adjudge, but investigate - one of its own employees??  The fact that Solow would pursue such a defense might strike some as further proof of his unfitness for office. 

How do people like Solow get appointed in the first place?  The Washington Post answered that question in 2007.  A significant percentage of immigration (Non-)Judges are party loyalists with law degrees who couldn't get approved for real judgeships.

Another significant percentage, doubtless, is composed of dedicated immigration lawyers with the kind of temperament that suits them better for a position behind rather than before the non-bench. 

Solow, I think it's safe to say, doesn't belong in the second group.

Marcia Cole's National Law Journal article adds that "A number of immigration lawyers who have practiced before him for many years insist that is undeserved punishment of a judge who is demanding, compassionate and objective."

But then, if Solow is really as "unprofessional" as the Eleventh Circuit says - meaning nasty,  unreasonable and abusive - and you had to appear in front of him, wouldn't you line up to the be the first to tell the reporter what a gem of a prince of a gentleman and scholar he is?

After all, the very worst judges are the ones most likely to do favors in return to public sycophancy.