Cham: Judge Ferlise Failed to Offer Even A Modicum Of Respect

Cham v. Gonzales
No. 04-4251
April 28, 2006
Precedential
http://www.ca3.uscourts.gov/opinarch/044251p.pdf

Very forceful decision -- the Third Circuit heavily criticizes Immigration Judge Donald Ferlise (in Pennsylvania) for failing to give a modicum of courtesy, respect, or any pretense of fairness in rejecting an asylum claim. The Third Circuit referred to Judge Ferlise's bullying nature and cited prior decisions where the Third Circuit complained about Judge Ferlise:

Sukwanputra v. Gonzales, 434 F.3d 627, 637-38 (3d Cir. 2006) (“intemperate and bias-laden remarks” interjected by the immigration judge, “none of which had any basis in the facts introduced, or the arguments made, at the hearing”); Fiadjoe v. Attorney General, 411 F.3d 135, 143, 145-46, 154-55 (3d Cir. 2005) (“bullying” and “brow beating” by the immigration judge; “continuing hostility towards the obviously distraught [petitioner] and his abusive treatment of her throughout the hearing,” reducing her “to an inability to respond”; and an oral decision, later “sanitized,” which was “crude (and cruel)).

Even more amazing, when the Third Circuit held oral argument on the case, the judges asked the government attorney to explain what procedures are followed when repeated inappropriate conduct happens. The Attorney General wrote a general letter announcing that every litigant be treated with courtesy and respect so that judge must able and professionally discharge their duties. The Third Circuit announced that:

We write because one of them, the Hon. Donald V. Ferlise, has seen fit on more than one occasion, including that now before us, not to do so.

What I find remarkable is that the judge's bullying can be seen by carefully reading the transcript and seeing how Judge Ferlise tried to twist the respondent's words into drawing out possible inconsistencies, even when it was clear some items were issues with translation. The Third Circuit judges did a great job of reading the transcript carefully to see the belittling attitude, even if the judge never cursed or said overtly hostile comments.

The Third Circuit admirably reiterated that treating litigants with courtesy and fairness is not a mere nicety, it is constitutionally required under the right to due process to a full and fair hearing on an asylum application that includes a neutral and impartial arbiter and a reasonable opportunity to present evidence. An immigration judge's constant nitpicking of irrelevant discrepancies can serve to grind down the respondent to a point that it is impossible to offer testimony and credible evidence.

Also very important is that the Third Circuit overturned the decision based on how the immigrant had no opportunity to present evidence of how his relatives won their similar asylum claims. The Third Circuit did not require proof of what that evidence would have shown -- the relevance was obvious and the asylum-seeker must be given an opportunity to present it. Also, Judge Ferlise accepted the evidence but announced he saw no relevance to it -- a judge that accepts but refuses to consider relevant evidence is the same as a judge the improperly refuses to accept that evidence.

The Third Circuit rejected the government's argument that the asylum-seeker had to show prejudice, that he would have won his case before a neutral arbiter. Failure to provide an impartial arbiter poisons the decision so completely that a new hearing must be given, without requiring any proof that a decision would have been different.

Congratulations to Joseph Hohenstein on this appeal and, actually, our sympathy for the probable frustration Joe had to deal with while having to appeal the unfair decisions by Judge Ferlise and the BIA. This case shows even more why full federal court review of immigration decisions is not just desirable, but critical.

Anyone with a pending BIA appeal or petition for review should consider filing a supplemental brief to let them know of these latest decisions.

update: in an unusual development, the Philadelphia City Council unanimously passed a resolution on May 4, 2006, calling for the removal of Judge Ferlise from the bench. This is according to a report by The Evening Bulletin.