Biased judging

This is indeed an unusual case in immigration practice, although it is not the first time I've heard complaints of biased judges : http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439420796

"Despite having ruled three times in the last four years against the family's pleas not to be deported to their native Bahamas, the board on Jan. 11 agreed to reopen the case. The reason: an investigation by the U.S. Department of Justice's Office of Professional Responsibility (OPR) that concluded the immigration judge in the asylum proceeding 'engaged in professional misconduct when he acted in reckless disregard of his obligation to be fair and impartial.'"


Bad behavior by judge reverses asylum ruling
Asylum case reopened after Justice Department finds misconduct by
immigration judge.

Marcia Coyle

January 25, 2010

For Roscoe Campbell, his family's quest for asylum in this country has been
a "long and rough road, mentally, physically and financially." But years of
fearing deportation when any stranger rang their doorbell or stopped them on
the street ended this month with a remarkable and rare turnaround by the
Board of Immigration Appeals.

Despite having ruled three times in the last four years against the family's
pleas not to be deported to their native Bahamas, the board on Jan. 11
agreed to reopen the case. The reason: an investigation by the U.S.
Department of Justice's Office of Professional Responsibility (OPR) that
concluded the immigration judge in the asylum proceeding "engaged in
professional misconduct when he acted in reckless disregard of his
obligation to be fair and impartial."

"This is pretty amazing," said Nadine Wettstein, director of the American
Immigration Council's Legal Action Center. "That you can use OPR findings to
reopen a case really seems extraordinary to me."

The board's decision means a new day in court before a different immigration
judge and a temporary reprieve for Campbell, his wife and three children,
from "the nightmare of never knowing when you might be picked up," he said.

For Immigration Judge Bruce Solow of Miami, who rejected the Campbells'
asylum request, the board's decision is undoubtedly the continuation of a
different nightmare that now includes public embarrassment and possible
discipline. 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.

Besides the asylum case, the Campbells and Solow now share experience with
the Justice Department's process for investigating complaints against
immigration judges. It is a process that is neither swift nor transparent
and because of that, it can be unfair - to aliens, attorneys and immigration
judges.

In the Campbell case, the process worked, said the family's pro bono
attorney, Christopher Nugent of Holland & Knight's Washington office.

"We were pleasantly surprised by the process," Nugent said. "OPR pulled the
file on the case and when they listened to the tapes, that's when they
realized something had gone wrong. It's not just about the written
transcript. Solow was not only sarcastic and derisive, he was literally
shouting. When you go to the board and raise this behavior in your motion,
they don't listen to the tapes."

INTO THE SYSTEM

In their asylum application, the Campbell family claim they fled their
island nation in 1999 to avoid being tortured or murdered by allegedly
corrupt officials within the Royal Bahamas Defense Force. Roscoe Campbell, a
retired member of that force, reported illegal drug-smuggling activities by
Defense Force officers to the U.S. Drug Enforcement Administration, and, in
the face of a subsequent threat, feared for himself and his family.

In 2005, the Campbells, accompanied by Pastor Chip Stokes of St. Paul's
Episcopal Church of Delray Beach, Fla., which has been supporting the
family, appeared before Solow for their asylum hearing.

Solow, appointed in 1986 by then Attorney General Edwin Meese, denied the
asylum application after finding that it was not filed on time, that
Campbell was not credible, and that there was no substantial evidence that
he had been tortured in the past or would be tortured by any Bahamian
official if he returned. The Board of Immigration Appeals and later the U.S.
Court of Appeals for the 11th Circuit agreed with the judge's -ruling.

Both the board and the circuit court did note that Solow's "sarcasm"
throughout the hearing was inappropriate and detracted from the dignity of
the hearing. But neither said that lack of judicial demeanor rendered the
hearing unfair. The board also noted that Solow was "actually generous" in
giving Campbell an opportunity to bolster his case with additional evidence.
The board twice rejected motions to reopen the case in 2006.

Holland & Knight had entered the case after Solow's ruling and at the
request of Stokes. Nugent's colleague, Leon Fresco, now senior immigration
counsel to Sen. Charles Schumer (D-N.Y.), filed the misconduct complaint
against Solow in 2007.

In the complaint, Fresco 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."

The complaint said the board and the 11th Circuit had noted improper
behavior by Solow in two 2006 cases.

In September 2009, OPR informed Nugent of its conclusion that Solow had
engaged in professional misconduct in the Campbell case and that the agency
had advised the Executive Office of Immigration Review of its findings.
Armed with the OPR findings, Nugent filed the motion to reopen.

Neither OPR nor the Executive Office would comment on the Solow case. The
Executive Office has its own procedure for taking complaints against
immigration judges and private attorneys. Both agencies would not provide
statistics on the number of complaints received against immigration judges
in the last year or any year. The Executive Office does make public
disciplinary actions taken against attorneys, but not judges. The office
does not publish disciplinary actions taken against immigration judges
"because of Privacy Act protections," said a spokeswoman.

The lack of transparency irritates attorneys and judges alike. The American
Immigration Council's Wettstein and other immigration lawyers said
complaints against immigration judges to the Executive Office seem to go
into a "black hole," and, they added, getting notice of findings made by OPR
also seems rare.

"In immigration court, the anomaly is the mechanism for bringing to light
bad behavior of judges and government attorneys is so slow and obscure that
it seems to us in the alien bar that it's unbalanced," said Daniel Kowalski
of Reina, Bates & Kowalski Immigration Law Group's Austin, Texas, office.
"We feel a little put upon."

And so do the judges. The Executive Office prohibits immigration judges from
speaking to the press, which leaves them "undefended" in the face of -public
criticism by the media, courts or others, according to Immigration Judge
Dana Marks, president of the National Association of Immigration Judges.

Complaint investigations often take years and focus on alleged behavior that
may have occurred four or more years before the investigation began, she
added.

"It's unfairly prejudicial to everybody that this process lasts so long,"
Marks said. "There should be some consideration of the totality of a judge's
record as well."

Marks said her union's concern with OPR proceedings stem from the Justice
Department's position that immigration judges are attorney-employees, not
judicial officers.

"Immigration judges welcome transparency into our conduct," she said. "The
proper standards to evaluate judicial performance as well as discipline are
not being implemented by the department because immigration judges are
treated as attorneys, not as judges. We think the proper standards are the
American Bar Association's model code of judicial conduct."

The department proposed a code of conduct for immigration judges three years
ago - not the ABA model code. It has not gone into effect and is the subject
of negotiations with the judges' union.

DEFENDING SOLOW

Solow may not be able to speak in his own defense, but he is not without
defenders. A number of veteran immigration practitioners in interviews with
The National Law Journal attested to his fairness, compassion, high
standards for lawyers appearing before him, legal knowledge and humor in
many cases.

"He is a judge I am confident of getting a fair hearing from," said Randy
McGrorty, chief executive officer of Catholic Charities Legal Services in
Miami. "He goes out of his way to see that people get adequate
representation. Is he direct? Absolutely. In my experience with him, which
goes back 17 years, he has never ever been inappropriate."

Solow is now represented by nationally known immigration lawyer and scholar
Ira Kurzban of Miami's Kurzban & Kurzban. Kurzban said OPR has no
jurisdiction to investigate immigration judges unless there is an allegation
of corruption.

"The procedure that OPR uses to reach its conclusion is just violative of
due -process," he said. "They refuse to give us notes of their interviews
and a transcript of his interview. The process is ludicrous."

He also questioned an investigation into allegations about a five-year-old
case.

The Board of Immigration Appeals' decision to reopen the Campbell case based
on the OPR findings is "an important precedent," said Holland's Nugent,
adding, "There is no statute of limitations for complaints against attorneys
for ethical misconduct. Isn't that the same principle here? In the final
analysis, Roscoe Campbell was vindicated, thanks to the grace of the board."