Monday, December 05, 2005

Not-precedential critique of IJ shows flaws with the Immigration Court system

Romano-Varian v. Gonzales
No. 04-3208
Filed November 30, 2005
Not precedential

The Third Circuit only needed two weeks from the oral argument to grant the appeal of esteemed lawyer Thomas Moseley. It is hard to summarize this case fairly, but it seems that when an immigration judge says the witnesses are all telling the truth, the court should probably not rule that the immigrant should be faulted for not bringing someone from his workplace to testify.

To be able to pursue cancellation of removal for someone who does not have permanent resident status, an immigrant must show ten years of continual physical presence before the day that the removal case begins. Here, the only issue was whether he was in the United states in the last half of 1992. He got an unsworn letter from his company saying he'd been working there since 1989. The immigration judge was somewhat unhappy that the immigrant failed to bring a live witness to testify that he had worked at the company since 1989 and was unimpressed when he explained that nobody at the company was willing to take time off work to testify for his case. He instead brought a few witnesses who were no longer working at the company.

The Third Circuit overturned the judge's ruling, noting that minor inconsistencies are not an adequate basis for finding someone to be not believable. Also, the judge's own comments that the immigrant's witnesses were all there telling the truth makes it less justifiable for her to rule physical presence had not been shown.

What was going on? The Third Circuit named the immigration judge (Judge Garcy), but is it all her fault or something that only one judge does? Perhaps it is a reflection of the underfunded, understaffed immigration court system rather than anything about a particular judge. There is such pressure to move and finish cases, it can build up frustration with the time-consuming task of patiently sifting through witnesses and information and waiting for additional supporting evidence.

The Third Circuit did not rule on whether the immigration judge's refusal to grant a delay to allow the immigrant to get additional witnesses was reversible error, but it is enlightening to see the immigration judge's statements as quoted by the Third Circuit. Read these not to critique the judge in this case -- instead, read them as a reflection of the unfair pressures that most immigration judges probably feel. The solution is to increase funding and staffing for the immigration court system. If judges today feel this kind of pressure, something needs to be fixed in the entire system:
“[T]his Court cannot really then consider the motion to adjourn without considering the pressures placed upon an Immigration Judge by the Chief Immigration Judge himself.”

“I’m not inclined to adjourn the case for more evidence, because it wasn’t my idea, I mean I had another case I could have done this morning.”

"I’m trying to digest this new instruction from the Chief Immigration Judge . . . . Let me tell you something. The days of needing more time are now over.”

“[T]he Chief Immigration Judge would probably be furious if he had an idea that a case was going to be adjourned, where we’re paying for a Spanish interpreter . . . .”


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