Serious Questions Raised About Improperly-Appointed Immigration Judges

Charlie Savage wrote a story on August 23, 2008 for the New York Times, "Vetted Judges More Likely To Reject Asylum Bids" that analyzed Justice Department data and concludes improperly-appointed immigration judges reject asylum claims at a higher rate than those who were appointed correctly. (Nina Bernstein and Robert Gebeloff contributed to the story.)

The Justice Department's Inspector General wrote a report this year that concluded that members of the Bush Administration and the Attorney General's office illegally used political affiliation when hiring immigration judges for around three years. The Inspector General blamed Kyle Sampson, Monica M. Goodling, and Jan Williams for the illegal practice.

Out of the 31 immigration judges that the journalist believes were appointed through the illegal process, there were 16 who had a substantial record that could be analyzed. Nine denied asylum cases at a rate worse than their colleagues at the same city, four were roughly equal, and three denied at a lower rate.

What should be done now to the people appointed through an improper process? Should they be removed, the position be advertised, and they plus others be given a chance to apply? If so, should their experience during their improperly-appointed period be allowed to boost their applications?

What should be done now for the people who had cases decided by the judges appointed through an improper process? Reopen all of the cases and give them to properly appointed judges? Review all of the cases and see which ones might have been decided differently under the discretion of an immigration judge properly appointed as opposed to the discretion of the immigration judge improperly appointed? (This seems similar to the debate about how to deal with court rulings made by judges in patent cases who were improperly appointed due to a flaw in how the government appointed many of the judges.)

If your case is in the process of being decided by an immigration judge who was appointed through an improper process, do you raise it to the judge? Or would that risk getting the judge angry and affect how the judge uses its discretion in reviewing your case?

More Articles on Immigrants Afraid to Report Crimes

With all these news stories about the need to encourage immigrants to report crimes to police, it would make sense that if local police report an informant to the immigration authorities, someone would step up and stop the deportation. In New Jersey, that is not the case -- local police sent an informant to be deported and nobody is stopping the deportation. The government is actually spending tax-paying money to fight to deport the person who called 911 to help the police arrest some criminals. Here is a sample of more stories:

In Kansas, a police department urges victims and witnesses of crimes to call the police regardless of whether they are out of status. It's the Liberal, Kansas Police Department. Immigrants urged to report crimes, Jon Ruhlen, Hutchinson News, Kansas, August 19, 2008. Several crimes went unreported because the victims were undocumented. Liberal Police Department Reaches Out To Illegal Immigrants, KAKE, Kansas.

In the New Haven, Connecticut area, one robber targeted Latino immigrants that she thought were out of status because they might be afraid to call the police. Officer Renee Forte admitted that it seems some immigrants are afraid to come forward. Cop Of The Week, New Haven Independent, CT, August 19, 2008.

Many domestic violence victims in Arkansas, Louisiana, and Texas are afraid to report the crime due to fear of deportation (among other reasons). Help for Immigrants Dealing With Domestic Violence, Karen Hopkins, ArkLaTex, August 19, 2008.

Police reaching out in Virginia to help victims come forward. A new class of predatory criminals target victims who are out of status and therefore probably will not call the police. Jeremiah Zook, assistant DA for Franklin County, said many crimes go unprosecuted because the victim is afraid to come forward for fear of being deported. New Class of Criminals Preys On Illegal Immigrants, Jim Hook, Chambersburg Public Opinion, PA.

In Austin, Texas, a robber targets immigrants because many carry large amounts of cash. Police believe there have been robberies that have gone unreported because the victims fear deportation. Austin Police: Robber Is Targeting Immigrants, Patrick George, Austin American-Statesman, TX, August 12, 2008.

In North Carolina, police urge immigrants to report crimes. Winston-Salem Police Urge Hispanic Community To Report Crime, Winston-Salem, NC, WXII, July 17, 2008.

In Coatesville, PA, the police chief believes immigrants who are crime victims are afraid to call police, among other reasons, because they are afraid taht someone in their family would be deported if they call. Chief: Blacks Prey On Hispanics, Jennifer Miller, Chester Daily Local, PA, June 29, 2008.

In Minnesota, police beg immigrants to report crimes and tips even if undocumented. Police Beg Somalis For Help In 4 Unsolved Slayings, Jim Adams, Star Tribune, MN, June 27, 2008.

Second Circuit Criticizes Poor Quality Briefs

The Second Circuit is specifically criticizing immigration attorneys who file briefs that they think are poor quality.

First, in Ren v. BIA, No. 04-6121 (2d Cir. Aug. 14, 2008) (summary order), the Second Circuit criticized Tao Lin of New York City (perhaps this is Tao Lin, an immigration attorney at Caesar & Napoli who has filed appeals before without any personal criticism from the Second Circuit). Seems the Second Circuit believed the brief had the following deficiencies:

• Poor quality
• Did not cite the administrative record
• Inadequate statement of the facts and procedural history
• Lacks a summary of the arguments
• Its jurisdictional statement that is incomplete, factually inaccurate, and cites sections that are not relevant to jurisdiction
  
• Largely lacks relevant Second Circuit case citations
• Lacks the standard of review
• Makes no attempt to connect the facts of the cases to any relevant legal principle.

Hmmm, harsh criticisms from the Second Circuit. The Second Circuit did not impose any sanctions, just warning that if it happens again, they have the power to issue a formal reprimand or refer a complaint to the court's Grievance Panel.

Second, in Yang v. Mukasey, No. 07-4498 (2d Cir. Aug. 13, 2008) (summary order), the Second Circuit warned Gary Yerman of New York, NY that he could be disciplined if he submits a brief that attempts to address issues unrelated to the appeal. It seems that Mr. Yerman has numerous appeals raising a particular issue but that this case was not one of them yet he still included that argument. So his brief wound up arguing something unrelated to this particular case. Submitting a boilerplate brief not tailored to the facts of the particular appeal annoys the Second Circuit.

Another note on that -- a few months earlier, in Wang v. Mukasey, No. 07-4389 (2d Cir. June 10, 2008) (summary order), the Second Circuit referred Gary J. Yerman of New York, NY to the Second Circuit Grievance Panel for misstating the facts of the case. The brief said a key fact was how she had two children born in the United States born 3 years apart but in fact, she had one child born in the United States and one in China more than 3 years apart. The brief also said she and her husband would never consider leaving her children behind in the US but she only has one child with her husband and the other child has been in China since the asylum-seeker left China.

Third, in Shunfi Li v. Mukasey, No. 04-3985 (2d Cir. June 13, 2008), the Second Circuit granted the appeal yet warned immigration attorney Yuming Wang of Wynnewood, Pennsylvania for filing a brief that did not cite a single decision of the Second Circuit and simply repeated word for word her brief to the BIA.

Fourth, in Octavianus v. Gonzales, No. 06-4894 (2d Cir. Sept. 4, 2007) (summary order), the Second Circuit criticized H. Raymond Fasano of Madeo & Fasano in New York, NY for submitting what the court felt was a largely boilerplate brief that did not meaningfully address any of the actual bases for the agency's decisions, waived one of the categories of relief, and did not address how the agency preterminated the asylum claim. It then pointed out a prior warning of using boilerplate briefs in Subekti v. Gonzales, 216 Fed. Appx. 93, 95 (2d Cir. Feb. 5, 2007) (summary order) and referred the matter to the Second Circuit Committee on Admissions and Grievances.  Update: see the comments to this posting for a defense of the quality of Raymond Fasano's briefs and a description of the various types of work and commendable activities he has done.  It's a good reminder that when the Second Circuit criticizes a brief, there may be another side to the story -- the criticism might be too harsh or unfair.

Fifth, in Lin v. Mukasey, No. 07-4330 (2d Cir. May 22, 2008) (summary order), the Second Circuit referred Henry Zhang of New York, NY to the Grievance Panel for filing a brief of poor quality that did not address the BIA's decision being appealed from. In large part it copied the motion that he had filed with the BIA.

Sixth, in Liu v. BIA, No. 07-2986 (2d Cir. March 24, 2008) (summary order), the Second Circuit referred John Z. Zhang of New York, NY to the Grievance Panel for a slew of problems with his brief. On top of that, they had warned him at least four other times not to submit such inadequate briefs.

Seventh, in Porras v. INS, No. 06-3067 (2d Cir. Jan. 23, 2008) (summary order), the Second Circuit referred Jorge Guttlein of New York, NY to the Grievance Panel for a brief of such poor quality that it did not address the actual basis for the BIA's decision. The Second Circuit left it for the Grievance Panel to decide whether to refer it to the Committee on Admissions and Grievances.

Don't forget we should presume people innocent until proven guilty. This does show what the Second Circuit's approach is when it believes it is receiving extremely low quality briefs.

Government Blocked From Being Free To Trick and Coerce Immigrants At The Border

An immigrant gets off a plane at Newark Airport. He walks up to the customs and border patrol officer to discuss whether the US will let him enter officially. At that moment, are there any Constitutional limitations to what the officer is about to do to the immigrant? Would there be any problem if the US officer confuses, tricks, or coerces the immigrant into signing various documents and then later tries to use those signatures against him?

Incredibly and disturbingly, the government actually argued that there are no Constitutional limitations to anything the officer does to someone in Newark Airport trying to enter. On August 1, 2008, the Seventh Circuit in Bayo v. Chertoff, No. 07-1069 (7th Cir. Aug. 1, 2008) tossed out the government's dangerous argument.

The government focused on two cases -- an enemy combatant convicted by a particular kind of military commission outside the US does not have some basic Constitutional protections (Johnson v. Eisentrager, 339 U.S. 793 (1950)) and there are no Constitutional limits on American officers searching a Mexican citizen's home in Mexico (United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)). It is a long way to get from those cases to the immigrant standing at the airport in the US who is talking to an official to get officially admitted into the US.

The Seventh Circuit noted that the recent decision of Boumediene v. Bush, 128 S. Ct. 2229 (2008) suggests there are some limitations because the US's powers outside its borders are not absolute and unlimited -- instead, they have restrictions as expressed in the Constitution.

So thanks to the Seventh Circuit, yes, someone who is physically in the US and technically not yet legally admitted into the US because he is still talking with the border official in the airport terminal does have at least some Constitutional protections.

It is pretty frightening to see the extreme positions that government attorneys are trying. I dread to think it is American taxpayer dollars hard at work.

The decision is at
http://www.ca7.uscourts.gov/tmp/FX1FG5ZK.pdf

(Look at the illegible photocopies that the government lawyers gave the court. The two pages are at the end of the decision. They should have spent some money on doing a halfway-decent photocopying job.)

Great work by Laureen Anderson of Horn Abuzir Khalaf Mitchell & Schmidt in Chicago.

Attorneys for the government included Anthony Wray Norwood and Terri J. Scadron of the Office of Immigration Litigation in the Department of Justice.

Growing Number of Trainings on Suppression Motions in Immigration Court

Over the past few years, there have been more suppression motions filed in immigration court and more trainings on the issue.

Here is a sampling of some of the trainings in the past few years:

• Advanced Strategies for Fighting Removal: Motions to Suppress & Forms of Relief, AILA, San Antonio, TX, June 21-25, 2006
• Evidentiary Issues in Immigration Proceedings, National Immigration Project, Washington, D.C., October 31, 2007
• Motions to Suppress (audio/web seminar), AILA, January 29, 2008
• Responding To ICE Raids and Suppression Motions, New York Immigration Coalition, New York, NY, February 1, 2008
  
• Immigration Court Defense after ICE Raids: Basics of Filing a Suppression Motion, Seton Hall Law Center for Social Justice, Newark, NJ, March 10, 2008
  
• How to do Motions to Suppress within the Context of Immigration Raids, Immigrant Legal Resource Center, San Francisco, CA, March 13, 2008
• Motions to Suppress Evidence in Removal Proceedings, AILA, Vancouver, Canada, June 28, 2008
  
• Pro Bono Motion to Suppress in Immigration Court, ILRC and CLSEPA, Sacramento, CA, July 8, 2008
• Motions to Suppress and Evidence Issues in Removal, National Migration Conference, Washington, DC, July 28, 2008
• Suppression Motion Training, Loyola New Orleans Law School, New Orleans, Louisiana, February 16, 2009
  
• Immigration Court Defense After Immigration and ICE Raids, New York Immigration Coalition, New York, NY, February 20, 2009
  

There are more trainings going on and with more lawyers learning how to file suppression motions, more mentoring opportunities. Suppression motion theories are also now being included in law school courses on immigration law.

Ninth Circuit Grants Suppression Motion in Immigration Court after Illegal Home Raid

On August 8, 2008, the Ninth Circuit granted a suppression motion filed in immigration court, overturning the immigration judge and BIA's denials! The case is Lopez-Rodriguez v. Mukasey (9th Cir. Aug. 8, 2008).

Filing suppression motions in immigration court is a growing strategy for immigrants to respond to illegal raids by immigration agents and local police. In criminal court, evidence from illegal raids cannot be used (with small exceptions) to try to obtain a criminal conviction. In immigration court, the law is less clear -- many courts follow a rule from the 1980s that evidence will be suppressed for egregious Fourth Amendment violations and other types of violations.

On the one hand, it is appropriate to revisit the 1980s decision and see whether suppression must be applied for an even wider variety of violations, not just egregious Fourth Amendment violations or regulatory violations. Still, even using the narrow rule from the 1980s decision of Lopez-Mendoza v. INS (1984), it is possible to win cases in immigration court with suppression motions.

In the Lopez-Rodriguez case, immigration agents illegally entered someone's house by pushing through an open door when an occupant opened the home door a bit to talk to the officers. There are a series of key points in the decision:

• Committing a search that a reasonable officer should have known was clearly illegal is an egregious violation of the Fourth Amendment that requires suppressing the evidence in immigration court.
• Invading someone's home without a warrant or a valid reason is a clearly illegal search.
• Opening the door to your home a few inches is not consent to let officers push the door open the rest of the way and invade your home.

Congratulations to Sara J. O'Connell at Morrison & Foerster LLP in San Diego, California! Lawyers on the losing side from the Department of Justice (their Civil Division, Office of Immigration Litigation), trying to defend the illegal searches, were Aviva L. Poczter and Song Park.

As reports of widespread illegal immigration searches continue to come up in the news, these suppression motions will be fought more often. And lawyers should be raising not only suppression for egregious Fourth Amendment violations and regulatory violations, but also for all Fourth Amendment violations, Vienna Convention violations, and state constitutional rights.