Wang: Immigration Judges Must Be Impartial

Filed 09/21/05, No. 04-2866
Wang v. Atty Gen USA
Wang v. Gonzales
precedential decision

The Third Circuit overturned the decision of an immigration judge because the judge failed to be impartial during the hearings. The Third Circuit emphasized that "We have stressed previously that as judicial officers, immigration judges have a responsibility to function as neutral and impartial arbiters and must assiduously refrain from becoming advocates for either party.” (I deleted internal quotation marks and brackets from the quote]

The decision is lengthy and includes long excerpts from the hearing transcript, so it is difficult to summarize. But two examples are that the immigration judge seemed to misunderstand how little money the immigrant had while he was in China. On the one hand, he took a $60,000 trip to be smuggled into the United States yet, strangely, he said he did not have enough money to pay off his parent's $1,500 fine. On the surface, it seems like a selfish child spending all the money on himself and not caring about his dear parents. This seemed to upset the immigration judge. However, the transcript suggests that the immigrant never had $1,500 in hand and that the only way he could take the $60,000 trip was to go heavily into debt. Smugglers are willing to lend and collect on a $60,000 debt to be smuggled, but nobody was willing to lend him $1,500 simply to pay off a fine.

Another factual issue that the immigration judge felt weighed against a discretionary grant of asylum was how it appeared the immigrant did not care about his daughter, who required special care. Read the opinion to figure out what this boils down to, but it might have been a matter of the immigrant not giving a complete story in his asylum application, which gave the impression he was concerned only about his wife and himself, with little mention of his daughter.

The Third Circuit questioned whether an immigration judge's concern about whether an asylum-seeker has sensible priorities about caring for his parents or his daughter is relevant to deciding whether the person qualifies for asylum. On the contrary:

The personal choices that an asylum applicant has made concerning marriage, children, and living arrangement should not be used to evaluate the applicant’s credibility concerning his claims of persecution, unless they reflect some inconsistency in a relevant portion of the applicant’s testimony.

The Third Circuit emphasized that the problem of impartial judges is a broad problem in the immigration court system -- it is not simply the problem of one judge. It cited other decisions it made and decisions in other parts of the country where immigration judges improperly acted in a way that suggested they were predisposed to ruling against the immigrant.

It also held that the problem of impartiality includes cases where the judge develops a bias as the proceeding is ongoing. It is not limited to situations where the bias existed before the hearing began.

The Third Circuit noted that it has no power to order that the new hearing be given to a different judge, but urged that it be reassigned in what seems to be strongly persuasive language:

While we recognize that assignment of an IJ is within the province of the Attorney General, if on remand an IJ’s services are needed, we believe the parties would be far better served by the assignment [of] [these] proceedings [to] a different IJ.

Update: On December 26, 2005, the New York Times printed an article titled "Courts Criticize Judges' Handling of Asylum Cases" and extensively quoted from the Third Circuit's Wang decision and named Judge Annie S. Garcy as the one involved in the Wang case. As mentioned here, the New York Times pointed out the criticism involves immigration judges throughout the United States, not just one particular judge here or there. According to the New York Times article, Judge Garcy declined comment through a spokesperson.