there's no crying in court!

Nina Bernstein at the NY Times reports today:

A New York immigration judge who rebuked a Chinese man for weeping during his asylum hearing has been rebuked herself by a federal appeals court that took the rare step of ordering her off the case.

In a decision issued on Friday, a three-judge panel of the Court of Appeals for the Second Circuit, in Manhattan, ruled that the judge, Noel A. Ferris, had mischaracterized the evidence and the demeanor of the asylum seeker when she ruled his testimony not credible.

The man, Jian Zhong Sun, testified at his asylum hearing in 2004 that the authorities in China had forced his wife to get an abortion in her first pregnancy, and that he had been beaten and threatened with sterilization during her second pregnancy in 1993, causing him to flee to the United States before his daughter was born.

The court found that Judge Ferris’s decision to deny Mr. Sun’s claim for asylum was “not supported by substantial evidence.”

The court also found “most troubling” Judge Ferris’s “note for the record” that the petitioner’s emotional reaction to questions about his daughter was “way out of proportion.”

Asked about his tears at the asylum hearing, Mr. Sun, a restaurant worker, had said, “I’m crying because I have not seen my daughter after 11 years.”

A little later, when Mr. Sun wept again as he answered questions about the forced abortion, Judge Ferris interrupted the hearing, complaining on the record of “the respondent’s disproportionate behavior in this courtroom.”

The Second Circuit vacated the lower Board of Immigration Appeals’ affirmation of the immigration judge’s decision and remanded the case to a different IJ. The court was not kind in its description (pdf) of the IJ’s mistakes:

The IJ’s decision, which was speculative and conjectural, was not supported by substantial evidence. Without any basis in the record for doing so, the IJ hypothesized an economic motive for Sun’s departure from China and grounded her conclusion on conjecture. The IJ’s findings are a product of the IJ’s own beliefs about what is and is not plausible in China, without any record support for these conclusions. These findings are based on improper assumptions. For example, the IJ determined that it was implausible that Sun’s wife would be allowed to give birth while her husband was a fugitive from justice, despite being in possession of the requisite approval of the family planning office. Also, the IJ believed, on no basis other than her personal views, that the letter from Sun’s wife failed to demonstrate sufficient concern for his well-being, in a manner that allegedly undermined his claims of having been beaten in China. This is not substantial evidence that provides adequate support for an adverse credibility determination.

The rest of the decision reads in a similar vein, challenging the judge’s inappropriately strict importation of the Federal Rules of Evidence into the asylum process when “asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor.” In other words, police officers who beat, threaten, and torture an asylum applicant are sometimes reluctant to provide the victim with a signed affidavit describing their actions.

The Times article continues:

The appeals court generally defers to an immigration judge’s assessment of a petitioner’s demeanor, the three-judge panel noted.

But in this case, it said, “a credibility finding rooted in flawed reasoning cannot stand.” Besides rejecting the judge’s decision as “speculative and conjectural,” and faulting her exclusion of important documents in the case, it said her comments and her conduct raised doubts about the fairness and reliability of the record, requiring that another immigration judge hear Mr. Sun’s case.

Immigration lawyers in New York said they could recall no other case of such a decision except for Jeffrey S. Chase, another immigration judge in New York City, who was relieved of court duties in March and assigned to a desk job after he was repeatedly rebuked by federal appeals judges for his hostile questioning of asylum seekers.

Judge Ferris, 56, an immigration judge since 1994, has a distinguished legal background.

She has a track record of granting asylum in nearly half the cases she handles, but she is also known among courtroom veterans for displays of anger and impatience. Theodore N. Cox, Mr. Sun’s appeals lawyer, said several more appeals seeking review of Judge Ferris’s hostile commentary from the bench were “in the pipeline.”

. . .

A transcript of Mr. Sun’s hearing shows that Judge Ferris repeatedly faulted him for responding “Sorry,” “O.K.” and “Yeah” in English rather than speaking only in Chinese, and threatened that he would lose his case if he hesitated in his answers.

. . .

Even Judge Ferris’s supporters in New York acknowledge that she has been known for reducing people in her court to tears — not only petitioners, but lawyers, translators and clerks. But they say her anger is often directed at lawyers who are not prepared or interpreters who fail to translate properly, and that she has become more civil in the last year or two.

It would be nice if immigration judges were more civil to immigrants and their representatives. But the real problem is not the rudeness of judges—in any field, lawyers can be brash and judges can be bullies. The real problem is the atmosphere of impunity which allows both abusive behavior from judges and near-complete discretion in determining outcomes.

As the Times article explains:

The appeals courts have been overwhelmed with asylum cases since the Bush administration curtailed an internal immigration appeals process. The federal judges have complained of a pattern of biased and incoherent decisions and bullying conduct by immigration judges, who are Justice Department employees, not part of the independent federal judiciary.

As I wrote earlier this year when Judge Chase received a similar rebuke from the Second Circuit:

As I noted here, the difference between the highest and lowest asylum denial rates among New York judges from 2000-2005 was 86 percentage points. Some asylum claims, no matter how strong on the merits, have virtually no chance of approval simply because of the judge who happens to be assigned to the case. And advocates of a stricter asylum system can’t be happy with the immigration judges who approve 80 or 90 percent of their cases. Pinning the blame on Judge Chase for acting uncivilly in his courtroom only distracts from the greater obscenity of a system with these outcomes.

The same could be said of Judge Ferris. The immigration courts are underfunded and overstretched. In an asylum proceeding I once observed in New York, the judge dryly commented that he would have his “crack legal staff” draft a decision in the case. There are over 200 immigration judges in the country, and only 45 law clerks to assist them all. This judge knew he was basically on his own to work through an average of 1,400 cases per year—at least he has a sense of humor about his work.

The Board of Immigration Review, normally the first line of appeal of an IJ’s decision, is even more swamped as a result of John Ashcroft’s purge of its liberal members, cutting the BIA’s size in half, a sort of Court-packing Scheme in reverse.

Predictably, the purge drastically reduced BIA asylum approval rates from 43% in 2001 to 13% in 2005. As a result of the vacuum created by the reductions at the BIA, along with more vigorous enforcement in the past 10-15 years, the federal courts have been swamped by immigration cases and have trouble managing their normal caseloads. Knowing that they are unlikely to be challenged either by the BIA or by federal courts, IJs operate with impunity in an area of the law which already allows great discretion.

I repeat: the immigration courts are broken and this administration is incapable of fixing them.