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Right To Impartial Immigration Judge - Judge Improperly Acting As Prosecutor - Due Process

by Norton Tooby and Joseph Justin Rollin

Immigration counsel can argue that reversal of a removal order is required when an immigration judge plays an improper prosecutorial role in the proceedings. When the judge abandons his or her role as an unbiased arbiter of fact and law, and becomes a prosecutor, the court contravenes its responsibilities as a neutral fact finder. It is well settled that a judge must remain neutral. Marshall v. Jerrico, Inc., 446 U.S. 238 (1980). See also Schweiker v. McClure, 456 U.S. 188 (1982) (hearing officers serving in a quasi-judicial capacity must meet the due process demand of impartiality).

The Immigration Court's decision should be reversed if the record clearly demonstrates that the judge played a prosecutorial role outside the scope of the court's responsibility as an unbiased trier of fact and law. The judge clearly acts as an aggressive prosecutor it s/he attempts to establish that the Respondent was guilty of a crime. The Immigration Judge further exhibits a prosecutorial tendency by examining respondent as if the court were a tax official suspecting violations of the Internal Revenue laws. The judge also demonstrates bias by subjecting respondent to "post-trial" examinations which merely reiterate the questioning previously conducted regarding the arrest, his educational background, his student loans and his tax returns. The Court of Appeals for the Ninth Circuit chastised an Immigration Judge who exhibited bias and prejudice during removal hearings by abandoning her neutrality in violation of due process. Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003).

The Court reasoned that "very early in the hearing, the IJ took over direct examination ... [and] the IJ noticeably became aggressive . . . ." (Id. at 1007.) The Immigration Judge may rely on Yang v. McElroy, 277 F. 3d 158 (2d Cir. 2002), to justify his or her role as fact-finder, but there are clearly limitations on the manner in which s/he may appropriately develop the record, especially when the respondent is represented by counsel. (See United States v. Copeland, 376 F.3d 61, 71 (2d Cir. 2004) (explaining that an Immigration Judge has the same duty to develop the record as the administrative law judge in a social security case, especially when the litigant is pro se and concluding the removal system "relies on [the Immigration Judge] to explain the law accurately to pro se aliens"); Secaida-Rosales, supra, at 306, citing Qiu v INS, supra, at n.17 (recognizing the court has not distinctly defined the Immigration Judge's role in developing in the record when an alien is represented by counsel). Stated succinctly by the Seventh Circuit, "discretion is bounded by the applicant's right to receive a fair hearing." (Podio v. INS, 153 F.3d 506, 509 (1998).) In Podio, the judge frequently interrupted and took over the questioning of the respondent. The judge in this case oversteps his bounds as did the judges in Reyes-Melendez and Podio.

The Second Circuit has considered the limitations on a judge's power to control deportation proceedings by ruling that a respondent had not effectively waived his right to counsel, allowing the judge to go forward on the merits of an application for relief, even if the respondent had been given a single two week continuance by the Immigration Court to locate an attorney. (Montilla v. INS, 926 F.2d 162 (2nd Cir. 1991).) Thanks to Sophie Feal. See also Cuko v. Mukasey, infra.