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Immigration judges have recently taken heat. In September of last year, Immigration Judge Mitchell Levinsky of New York lost his job after the Department of Justice found he had made insensitive generalizations from the bench, including "statements to the effect that: women are inherently homosexual ...; all Colombians and Cubans are drug dealers ...; Mexicans are drunks ...; Salvadorans prefer incest ...; Dominican women will have children with anyone ...; Poles drink too much ...; Chinese are kidnappers ...; Jamaicans, Dominicans, and Cubans are murderers ...; Jamaican women make good housekeepers and nannies ...; and [he did] not like Japanese people...." Levinsky claimed the comments had been made during "off-the-record courtroom banter among the courtroom staff."
In another ruling from September 2005, Philadelphia Circuit Judge Julio Fuentes complained that "Time and again, we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings." He added that "The tone, the tenor, the disparagement, and the sarcasm" of the immigration judge in question "seem more appropriate for a court television show than a federal court proceeding."
This past December, an article in the New York Timesquoted an opinion by Richard Posner, a federal appeals court judge in Chicago, who wrote that conditions at the level of immigration court had "fallen below the minimum standards of legal justice." An L.A. Times story a short while later told of a judge in San Francisco who ordered the deportation of a U.S. citizen after he failed to verify the authenticity of his birth certificate and tax records, and a judge in Boston who earned a year's suspension for referring to himself as "Tarzan" during the trial of a Ugandan woman named Jane.
In January 2006, Attorney General Alberto Gonzalez responded to the criticism with a memo to immigration judges, expressing his concern about their behavior. He announced a Department of Justice review of immigration court. "While I remain convinced that most immigration judges ably and professionally discharge their difficult duties, I believe there are some whose conduct can aptly be described as intemperate or even abusive and whose work must improve," he wrote.
Some blame the problems on the shrunken Board of Immigration Appeals. "They transformed the board into a rubber stamp," says Ira Kurzban. "They're taking so little time to review the record that it reinforces the errors immigrant judges are making."
This past August, after officials visited twenty immigration courts, conducted more than 200 interviews, and pored over transcripts, the DOJ review was complete with no change to the streamlined appeals process. Instead Gonzalez announced that judges would now routinely undergo performance reviews. New immigration judges must pass an immigration law exam to test their knowledge of the law. Another change apparently rooted in the theory that dishonest asylum applicants provoke bad judicial behavior proposes stiffer penalties for immigrants who make false claims, to "reduce the pressures that may have contributed to intemperate conduct in the past."
Immigration court is an administrative body, run by the Executive Office of Immigration Review (EOIR), a division of the DOJ. Attorneys wishing to become immigration judges apply through the civil service process and are hired according to the preferences of the EOIR. Immigration judges can choose to close their courtrooms to the public and the media. Attorneys worry that speaking out about an unfair hearing will result in retaliation by a vindictive judge the next time they argue a case before him or her. As such, there is very little public accountability unless a case reaches the level of a federal appeal. (Many lawyers interviewed for this article would only speak on background, if they agreed to speak at all.)
Judge Denise Slavin, who presides over the immigration court at Krome Detention Center and who may speak to the press in her capacity as president of the National Association of Immigration Judges, contends the judges have a difficult job. New York has 26 judges, and Miami, which Slavin says hears a greater number of cases every year, has only 20, plus the two at Krome. Judges are under pressure to move cases quickly, but the court is slow to replace staff members who leave. In immigration court, there are no bailiffs and no court reporters. (Cases are taped and usually transcribed only if there is an appeal.)
"The software on the computers was state-of-the-art in 1985," says Slavin. "There are only three law clerks for 22 judges in the area." The Miami court has also seen a 62 percent increase in matters received over the past five years, although the number at Krome has declined slightly.
Slavin, whom area immigration lawyers say is a fair and considerate judge, recently launched a feel-good offensive on behalf of the maligned adjucators, announced in the pages of the Miami Heraldwith the headline "Respect Sought for Busy Judges."
Immigration attorneys agree the judges' caseload is a large part of the problem. Local attorney Tammy Fox-Isicoff said she would prefer a system that employs more immigration judges in order to reduce pressure on courts but that would also provide higher standards for their knowledge of the law. She also says the court could do more to "monitor and sanction judges who engage in improper conduct."