An Invitation To Dialogue To Improve Adjudication In Removal Proceedings
Removal proceedings typically conclude as follows: The immigration judge asks if either party has any more questions for the witness or additional evidence, the parties say no, the judge retreats for a few moments to collect his or her thoughts, and then the judge renders the oral decision. Of all the hearings I have participated in or reviewed on appeal, very few have included a discussion between the immigration judge and counsel on the merits of the case at the end of the merits hearing. The Immigration Judge Benchbook unfortunately does not instruct judges to hold such a discussion; it only instructs them to “allow a brief closing argument,” if requested. This is unfortunate because a dialogue initiated by the immigration judge probably would result in a marked improvement in the decision-making process.
One of the most frustrating situations for me as a practitioner is where the immigration judge has overlooked or gotten wrong an important fact. This happens with surprising regularity. For example, last year I had an asylum case before an immigration judge who repeatedly asked questions that indicated he misunderstood my client’s testimony about whether the client ever had a certain identification card. Each time, I politely objected to the judge’s characterization of the testimony, and at the end of the hearing we had an extensive discussion on the issue. The immigration judge ultimately understood what my client was trying to say, found him credible, and granted the claim, which I do not think would have occurred without that dialogue.
I sought dialogue in that case because the immigration judge’s mistake of fact was apparent. In other cases, counsel may not even know that the judge is operating based on a mistaken perception or recollection of fact until the judge issues the decision. The judge may simply forget something or confuse the present case with another similar case, particularly if the present case involved multiple hearings. Alternatively, the judge might misinterpret an ambiguous statement that seems clear to counsel because of counsel’s more intimate familiarity with the case. Even if counsel is aware of an ambiguity, counsel may not want to solicit dialogue on it if it highlights a weak area of the case. Counsel may instead prefer to keep quiet and cross his or her fingers.
Usually, though, a lawyer does not learn of the mistake of fact until the immigration judge is in the midst of rendering the oral decision. By then it is too late as a practical matter. If you want to see an immigration judge lose his or her composure, try interrupting (even tactfully) in the middle of an oral decision. Pointing out an error after the decision also is unlikely to get you anywhere. By that time, the judge already has taken an entrenched position and any claim of error will provoke a defensive reaction. The judge may deny the existence of the error or its materiality or may simply tell you to take it up on appeal. Requiring an appeal to correct an obvious error or oversight, however, seems pointless. It results in delay and expense to the noncitizen respondent, prolonged detention if he or she is in custody, a waste of judicial resources, and the risk of an erroneous final order of removal.
Dialogue between the immigration judge and counsel before the judge issues the decision can help avoid such pointless appeals, although an appeal often will be necessary for close legal and factual questions. The natural place for such dialogue would be in closing argument, although closing argument does not appear to be the norm, at least in the San Francisco Immigration Court where I practice. Closing argument would be more common, focused, and helpful if the immigration judge first lists the factual and legal issues that he or she wants counsel to address. Listing the factual and legal issues the judge finds determinative also would notify the parties if the judge has made a significant mistake of fact. The parties would then have an opportunity to present their views on the facts and law the judge finds significant and to point out any issues the judge may have missed.
For example, at the close of a hearing an immigration judge might ask counsel to address only whether an asylum applicant has proven a nexus to a protected ground and whether respondent reasonably could have corroborated his claim by providing the identification card from his political party. This would notify counsel for the asylum applicant that the judge misunderstood the testimony that he never had such an identification card. It also would notify counsel that there is no need to belabor the argument that the harm rose to the level of persecution. On the other hand, the judge’s request also would notify counsel for the government of the need to emphasize an inconsistent statement by the applicant, since the judge’s request assumes credibility. The resulting dialogue therefore would not favor either party, but this simple step would improve the decision-making process.
Nor is there any downside for the agency. Although the dialogue may take ten to twenty extra minutes of time prior to the decision, the immigration judge should find it quicker and easier to render the decision after the dialogue has focused the issues and clarified the facts. An even more substantial time savings would occur on appeal, since the decision probably would be better reasoned and free of obvious errors or oversights. I hesitate to say it, but this may allow the Board of Immigration Appeals to issue more summary affirmances without opinions (or at least to issue more with proper justification). This would free the Board to devote less time to correcting simple mistakes and more time to deciding important legal issues.
In sum, a better conclusion for removal proceedings would be as follows: The immigration judge asks if either party has any more questions for the witness or additional evidence, the parties say no, the judge retreats for a few moments to collect his or her thoughts, the judge states the issues that he or she finds determinative, the parties present their arguments, and then the judge renders the oral decision. That conclusion should result in a more accurate and better developed decision.
Scott A. Mossman is an immigration attorney practicing in Oakland, California. His practice emphasizes removal defense, immigration appeals, and advice on the immigration consequences of criminal convictions. Scott Mossman can be reached at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.