Sunday, January 29, 2006

Sukwanputra: Immigration Judge Ferlise Admonished For Intemperate, Irrelevant Comments Against Asylum-Seeker

Filed 01/19/06, No. 04-3336
Sukwanputra v. Gonzales
Sukwanputra v. Atty Gen USA
USDC for the Eastern District of Pennsylvania

Sadly, the Third Circuit again had to admonish an immigration judge for not acting as a neutral, impartial arbiter and instead interjected intemperate and bias-laden remarks. That kind of conduct is seen more and more, but is always unacceptable. When the immigrant testified that she would love for her sister to come to the United States also to study and work, immigration judge Donald Vincent Ferlise actually said:
Look for a better job. Ma’am she has no right to be here. You have no right to be here. All of the applicants that are applying for asylum have no right to be here. You don’t come to the United States to look for a job! That’s not the purpose of asylum. You don’t come here to look for a job, or look for a house, or look for a better car, and than as an afterthought say, well, the only way I’m going to be able to stay here is if I can convince a Judge that I’m going to be persecuted. It’s not the way the law works. Now, if you’re telling your sister to come to the United States to pretend to be a student to have her come here, you’re guilty of visa fraud. That is a felony. You can go to jail for that! You have to understand, the whole world does not revolve around you and the other Indonesians that just want to live here because they enjoy the United States better than they enjoy living in Indonesia. It is not a world that revolvesaround you and your ethnic group.
As the Third Circuit said, "We are deeply troubled by the IJ’s remarks, none of
which had any basis in the facts introduced, or the arguments made, at the hearing." Basically, the judge went off on an angry tirade on an issue that had nothing to do with the case. This gave the strong impression of bias and the Third Circuit strongly recommended that the case be assigned to a different immigration judge. Not Judge Donald Vincent Ferlise

The Third Circuit rejected a major attack on Congress's 1996 rule that asylum claims must be filed within one year of coming to the United States.

The Third Circuit rejected challenges that this one-year rule violates the Supremacy Clause because it conflicts with two major international agreements on asylum law (the 1951 Convention and the 1967 Protocol). The Third Circuit ruled that those provisions are not self-executing so there is nothing to be in conflict against the one-year rule and, by the way, even if it were self-executing, the "last in time" rule means the courts would obey the recently-enacted 1996 law.

The Third Circuit also rejected a due process challenge. It held that the one-year rule was a reasonable procedural requirement to allow due process. Also, refusing to allow judicial review of the immigration agency's discretion did not violate due process because deportation supposedly has never been held to be punishment so no judicial review is guaranteed by the Constitution.

The immigrant challenged whether she qualifies for an exception to the one-year filing deadline because of changed circumstances. The Third Circuit ruled, though, that the immigration laws do not allow any court to review that ruling.

Finally, the Third Circuit ruled that the immigration judge and BIA made a fatal error -- it refused to consider a document on the weak excuse that it did not meet a particular regulation on how documents can be authenticated. The Third Circuit has ruled in the past that the regulation sets out one option, not the only way, to authenticate documents. It was a fatal error to apply the option as if it were an absolute requirement.

The IJ also made fatal errors by ruling the immigrant was not credible based on speculation and conjecture. She saw some major events that took place in places that were not near each other. Based on pure speculation, the IJ felt it was incredible she could have travelled around and seen all of them.

The IJ made yet another fatal error by ignoring the immigrant's claim that there is a pattern or practice of persecution of people in her group (Chinese Christians in Indonesia). The IJ ruled she did not establish persecution without explaining why he apparently rejected the argument that there was persecution against Chinese Christians in Indonesia.


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