Mock Trial

Miamiís immigration judges are not interested in your problems

Judge Slavin says she hasn't believed hostile behavior to be a widespread problem. "You hear lots of mixed things and rumors about any judge. That's true of any court."

Tarek is an immigrant from the former Republic of Yugoslavia, an Albanian Moslem whose problems began during the Balkan wars that devastated the region between 1991 and 2001. Recognized as the bloodiest European conflict since World War II, the Balkan wars were the arena for genocide and war crimes.

Illustrations by Todd Julie
Illustrations by Todd Julie

Tarek was recruited into the Yugoslavian army, but he refused to join. In his 2004 asylum hearing at the Miami Immigration Court, he reasoned that he had been "recruited into an army that waged war on its own citizens of different ethnicities and religions" and that he had acted as a conscientious objector. He claimed his refusal to fight had resulted in the physical mistreatment of his family members, problems that continued even after he left the country. The immigration judge disagreed.

Tarek, according to the judge, was "about as much of a conscientious objector as I am of the pope in Rome."

Tarek's attorney submitted as evidence an Amnesty International report about the region, which called on authorities in countries of refuge to not deport deserters from the Yugoslavian army back to the Balkans. "While NATO states encouraged Yugoslav soldiers and reservists to desert, they are now failing to provide those who did so with adequate protection," it read.

The immigration judge dismissed the Amnesty International report as "dribble" and a "hood ornament."

"You ever read Amnesty reports about the U.S.?" he asked later in the hearing. "You'll hear it's the same story. So what? I don't know of a country in the world that ... Amnesty International wouldn't say something about."

Since arriving in the United States, Tarek had married a woman from Georgia. Although the couple had a child together, at one point the judge asked Tarek: "By the way, did anybody arrange your marriage with the lady you married in Georgia?" And in a final show of disrespect, the appeal brief states that the immigration judge repeatedly said "sustained" even though the government's attorney had made no objection to a question.

The BIA did not grant the appeal but sent the case back to the judge for a proper hearing. As for disciplinary measures, the criticism appears to have stopped there, although the judge recused himself from hearing the case a second time at the behest of Tarek's lawyer. The Albanian is currently seeking adjustment of status — relief from deportation because a spouse who is a U.S. citizen files a visa petition. Tarek's wife has done so, and they await the results. He is lucky to have the option.

"Sometimes people on the bench seem to forget that what they're supposed to do is listen to evidence and make a decision," says Ira Kurzban. "They substitute personal views for the evidence in front of them."

Judge Slavin counters that sometimes a judge's knowledge of the history and context of a particular country can be helpful. "I had a case with a Haitian who claimed he was taken from his house on December 17, 2001. I knew information from other cases that on that date a raid on the national palace was used as an excuse to attack anti-Aristide activists."

But consider the case of a Mexican immigrant, Jaime Rodríguez-Navarette, who applied for cancellation of removal via a form of relief available for nonpermanent residents. As part of his petition, the Mexican had to prove continuous residence in the United States for a period of at least ten years. Miami Judge Teofilo Chapa did not believe the immigrant's residency claim based on the following reasoning:

"I have nothing that would show it, but I would suspect that this respondent has been coming and going to and from Mexico ...," said Chapa. "If I hadn't worked for the Mexican consulate for three years doing pro bono work in the migrant farm camps, I wouldn't have realized just how many people just come back and forth.... They'll come to the U.S. three, four, five, six months a year, go back to Mexico, live off what they earned while they were here. They just keep doing that." Later he said, "I'm Mexican. I know what he's thinking. Okay?" Both Chapa and the BIA rejected Rodríguez-Navarette's application. The Eleventh Circuit Court of Appeals declined to review the case.

Impropriety by judges in the Miami court has been known to extend to the basic principles of due process. The recent rejection of a Venezuelan asylum applicant is being appealed because the judge accepted a slanderous letter sent anonymously to the court as evidence.

"At Respondent's last hearing on September 14, 2005, the Immigration Judge provided Counsel for Respondent and the [Department of Homeland Security] trial attorney a copy of an anonymous letter received by the Court on May 6, 2005, wherein serious allegations were made regarding the Respondent's claim for asylum, his character, and his credibility," states the appeal brief sent to the BIA.

"No real Court would ever permit an unauthenticated document of such a disparaging nature to be admitted into the record," it continues. "No real Court would ever ask counsel to address the contents of an anonymous, disparaging letter. The Court's acceptance of this letter into the record in this case is especially egregious given the nature of the Respondent's application for relief, asylum.... What is to stop governments or countries from addressing anonymous letters to Court to derail asylum claims? Even in immigration proceedings, due process must prevail!"

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