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Third Circuit Describes "Disturbing Pattern Of IJ Misconduct" In Asylum Cases

by Christina B. LaBrie

In a recent published decision, the US Court of Appeals for the Third Circuit noted that a “disturbing pattern of IJ [Immigration Judge] misconduct has emerged” in asylum cases brought before the US Courts of Appeals.

In Wang v. Attorney General, 423 F.3d 260, 270 (3d Cir. 2005), the Third Circuit held that the IJ’s adverse credibility determination could not be upheld because of the “pervasive influence of [her] unduly harsh character judgments.” The decision includes substantial excerpts from the hearing before Immigration Judge Garcy held in December 2002. During the hearing, the IJ made a number of outrageous comments reflecting presumptions about the applicant’s circumstances and her personal opinion of his character.

The applicant testified that because of his violation of the family planning police in China, the Chinese government imposed fines that were deducted from the pension of the applicant’s parents. The IJ repeatedly expressed her view that the applicant should have paid the fine instead of paying smugglers to help him come to the United States. When the applicant attempted to explain that had to borrow money to pay the smugglers, the IJ stated, “[y]ou must be out of your mind of you think I have sympathy for that.” Id. at 263. The applicant’s attorney went on to ask additional questions about the fine and the pension, but the IJ interrupted her: “It’s ridiculous. Go away from this issue and move on because it’s just insane.” Id. The IJ chastised the applicant for failing to produce medical records for his disabled daughter.

The court criticized the IJ for her conduct during the hearing: “ The tone, the tenor, the disparagement, and the sarcasm of the IJ seem more appropriate to a court television show than a federal court proceeding.” Id. at 269. In addition, the court expressed concern that the IJ focused extensively on issues that were irrelevant to the applicant’s claim to asylum and withholding of removal. In a footnote, the court pointed out that although discretionary considerations could be relevant for an asylum claim, it is not permissible to deny an application for withholding of removal in the exercise of discretion. Id. at 270, fn. 4.

The decision in Wang is notable because the court took the opportunity to point out the frequency of cases brought before the court that involve inappropriate behavior by immigration judges during proceedings. “Time and again,” the court stated, “we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings. Three times this year we have had to admonish immigration judges who failed to treat the asylum applicants in their court with the appropriate respect and consideration.” Id. at 267.

One of the cases cited by the court, Fiadjoe v. Attorney General, 411 F.3d 135 (3d Cir. 2005), involved an asylum applicant who was subjected to abusive and bullying behavior by the immigration judge. Excerpts from the hearing illustrate the extreme hostility of the immigration judge, even during testimony by the applicant about her father’s repeated acts of rape and abuse. The court recognized that the abuse behavior by the immigration judge caused the applicant to break down and disassociate. In another case, Zhang v. Gonzales, 405 F.3d 150 (3d Cir. 2005), the immigration judge based his negative credibility finding in part on the applicant’s use of the term “persecution.” In his decision, the immigration judge concluded, “real refugees are not throwing around the work ‘persecution’ that often…” Zhang, at 158 (McKee, J., concurring).

The Third Circuit cases are disturbing because they indicate that the process of evaluating asylum claims has, in some cases, been corrupted by the inappropriate behavior and personal bias the immigration judge. Without a doubt, immigration judges hear many claims that are fabricated or that do not meet the legal standard for asylum. However, the existence of non-meritorious claims can never form a legitimate explanation for the failure to provide due process in immigration proceedings. If the process is compromised, then the protections guaranteed by US asylum law are rendered meaningless.

These cases also indicate that the Board of Immigration Appeals can not be consistently relied upon to protect the integrity of immigration court proceedings. All too often, the Board ignores the inappropriate behavior of immigration judges and affords substantial deference to credibility determinations made by immigration judges who are clearly hostile and affected by personal bias. Hopefully, the precedent decisions by the Third Circuit will help bring attention to the actions of immigration judges that undermine the integrity of asylum proceedings in the United States.

This article originally appeared on

About The Author

Christina LaBrie, received her J.D. in 2000 from New York University School of Law. She has been practicing immigration law since 2001 and is currently an Associate at Cyrus D. Mehta & Associates, PLLC. She is a member of the American Immigration Lawyers Association and is Secretary of the Committee on Immigration and Nationality Law of the Association of the Bar of the City of New York.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.