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Immigration judges face increased scrutiny

WASHINGTON—After Islamic militants murdered Seemab Shah's father, she said, they came for her. Terrified, Shah left her newborn son in the care of relatives and fled Pakistan for the United States.

She beseeched a U.S. immigration judge to grant her asylum. As proof of the danger to her family, she presented the court with her father's death certificate and newspaper photos of him lying in a pool of blood.

Despite the evidence, Judge Donald Ferlise concluded that Shah's father wasn't dead. Rejecting Shah's story as "totally incredible," he denied her request to remain in the United States.

But Shah, 33, isn't going home anytime soon. The 3rd U.S. Circuit Court of Appeals in Philadelphia concluded that Ferlise inexplicably had ignored undisputed evidence of her father's death. The court reversed his decision and ordered another judge to hear the case. In May, Ferlise was removed from hearing cases.

Ferlise's ruling and similar decisions by other immigration judges have come under intense scrutiny by federal appeals courts. A review by McClatchy Newspapers has found that appeals courts have sent back dozens of rulings by immigration judges over the last two years, calling many of them biased and unjust. In one recent rebuke, an appeals court panel deemed an asylum decision "incomprehensible." Another panel called an immigration ruling "pure supposition."

The appeals courts also have singled out judges for what they've called rude and bullying behavior. One appeals court panel reversed a decision because, it said, the judge acted like a "prosecutor anxious to pick holes" in immigrants' stories instead of an impartial jurist.

The appeals-court judges' unusually sharp tone has prompted calls for an overhaul of the immigration courts, the forum of last resort for many of the world's refugees who flee to the United States from repressive governments that may have tortured and imprisoned them for their beliefs.

Responding to the criticism, Attorney General Alberto Gonzales launched a review of the immigration courts in January. Gonzales, who oversees the immigration judges, is expected to make recommendations in the next few months on how to improve the court system.

"The attorney general has stressed he believes that most immigration judges perform their duties admirably and professionally," said a senior Justice Department official who spoke on condition of anonymity because the review isn't complete. "But given the number of complaints he heard, he wanted to assess the scope and the nature of whatever problem might exist."

Immigration judges said the criticism was overblown because the federal circuit courts upheld the vast majority of their rulings.

The judges think the scrutiny stems from a profound misunderstanding of the pressures on their courts.

A judge could jeopardize the nation's security by allowing the wrong person to remain in the United States. But rejecting a valid asylum request can send a refugee back to a country in which he or she would face torture, imprisonment—or death.

"It can be the equivalent of imposing a death sentence," said Dana Leigh Marks, an immigration judge and the vice president of the National Association of Immigration Judges.

However, immigration judges often are forced to depend on the testimony of a single witness: the immigrant. Documents that might support a story can be sparse because many immigrants can't return to their homelands to collect proof. Some immigrants take advantage of the low threshold of evidence and lie about their circumstances, law enforcement officials said.

Although so much hinges on their testimony, immigrants often tell their stories through interpreters, who may or may not be qualified. Unlike federal court, many testify without being represented by attorneys.

"The immigration court is a bizarre Frankenstein-like creature," said Chris Carlson, an immigration lawyer in Minneapolis. "When we walk into federal court, it's like a breath of fresh air. We're treated with respect, legal arguments are made and the laws applied."

To make matters worse, immigration judges say they're overwhelmed by a growing crush of cases.

Last year, the more than 200 immigration judges handled roughly 300,000 immigration matters. To keep up, a single judge has to complete 1,400 cases a year, or nearly 27 a week. As a result, some immigrants wait as long as a year to appear before judges.

The judges don't have a computerized system to record their decisions, and often are forced to rule from the bench without extensive preparation or the benefit of transcripts. Unlike federal jurists, they don't have bailiffs or law clerks and are virtually powerless to punish uncooperative lawyers or witnesses.

Forced to cut back on expenses, the judges have gone without personalized training for three years, though immigration requirements are considered as arcane and complex as tax law.

"Given the volume of cases, you walk out of court often stressed out because you don't have enough time or angered because you have been forced to make a decision that you personally don't believe is right," said Joe Vail, a former Houston immigration judge who resigned in 1999 out of frustration.

Judges can become jaded and desensitized by the blur of tragic tales: rape, torture, murder.

"Everybody is saying to you, `My country is a horrible place,'" Vail said. "There are judges who are sitting there day after day hearing those claims, and they get tired and burned out and they stop believing the stories."

But some lawyers said the Justice Department hadn't done a good job of disciplining judges who verbally attacked immigrants or lawyers or who handed down decisions without legal basis.

In the last 10 years, about 140 complaints have been filed against immigration judges, but only two judges have been removed and two others reassigned. Justice Department officials said a more precise breakdown of complaints wasn't available.

The same day that the 3rd Circuit appeals court in Philadelphia reversed Ferlise's decision in Shah's case, the judges found fault with another of his rulings.

Abou Cham, a West African refugee, said he'd be killed if he were sent back to his homeland. Cham testified that his uncle had been ousted as president of his country in a coup. He described fleeing after members of the new regime killed and imprisoned several other relatives.

From the outset, Ferlise appeared not to believe the refugee, and interrupted his testimony numerous times, the appeals court found.

"Under the `bullying' nature of the immigration judge's questioning," Cham "was ground to bits," appellate Judge Maryanne Trump Barry wrote.

"It is crystal clear that Judge Ferlise presumed Cham's application to be without merit before even a shred of testimony had been presented, and treated Cham accordingly."

Barry described Ferlise's ruling as a "severe wound" inflicted on the American system of justice, when "not a modicum of courtesy, of respect or of any pretense of fairness is extended."

Ferlise didn't return phone calls requesting comment. Some lawyers who'd appeared before him said he was being singled out unfairly because of the recent reversals, which they said didn't reflect the thousands of cases he'd heard in his 11 years on the bench.

"There are worse judges than Judge Ferlise," said Kent Frederick, the chief counsel who oversees the government's immigration lawyers in Philadelphia. "Maybe he's intemperate at times, but it certainly is not a pattern of behavior."

But other lawyers said the problem wasn't simply a matter of rude judges but of unjust decisions.

"At the end of the day, if someone screams and yells and comes up with a fair ruling you accept it," said David Piver, Shah's attorney. "But if they scream and yell and come out with a ruling that is indefensible, the system isn't working."

Lawyers interviewed during the attorney general's review have told the Justice Department that certain courts won't improve unless specific judges are reassigned or removed.

"There are a lot of good judges, but there are also some really bad judges," said Scott Bratton, an immigration lawyer in Ohio who appears in courts across the country. "There are definitely judges who you know have their minds made up before they hear a case and they think your client is lying no matter what they say."

The problem isn't contained to judges who reject asylum requests, said Frederick, the chief counsel in Philadelphia.

Some judges who are sympathetic to immigrants also don't belong on the bench, but simply haven't come to the attention of the appeals courts, he said. Unlike immigrants' attorneys, government lawyers can't appeal to the federal courts.

"The problem is on both extremes," Frederick said. "There also has been some really terrible behavior by judges who grant the requests in favor of the aliens."

Critics say the Board of Immigration Appeals, the panel set up to review the judges' decisions, isn't aggressive enough about scrutinizing rulings because of changes made to its powers four years ago.

In 2002, then-Attorney General John Ashcroft reduced the board to 12 judges from 23, and expanded the ability of any one of them to decide appeals without explanation. The Justice Department credits the overhaul for reducing a backlog of thousands of frivolous appeals.

But immigration lawyers said the board wasn't reviewing the immigration judges' decisions as closely as before. As a result, the lawyers said, they're forced to appeal more often to the federal courts. Their appeals of the immigration board's decisions increased from about 1,600 in 2001 to 12,800 in 2005, a more than sevenfold spike.

"The courts are having the opportunity to look at immigrant judges and see what's going on in the hearings," Miami immigration lawyer Tammy Fox-Isicoff said. "You're seeing decisions from circuit judges that show shock."

In one recent case, a panel of judges for the 7th U.S. Circuit Court of Appeals in Chicago called attention to some immigration judges' lack of familiarity with foreign cultures, insensitivity to misunderstandings caused by the translation of testimony and "unhelpful, boilerplate" decisions by the Board of Immigration Appeals.

"It is possible that nothing better can realistically be expected than what we are seeing," appellate Judge Richard Posner wrote in the opinion. " . . . But we are not authorized to affirm unreasoned decisions even when we understand why they are unreasoned."


(McClatchy Washington bureau researcher Tish Wells and Casey Woods of The Miami Herald contributed to this article.)


(c) 2006, McClatchy-Tribune Information Services.

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