A Perfect Storm of Errors Complicates an Immigration Court Hearing

By David North on July 31, 2018

A perfect storm of errors and bad luck strained, but did not break, the composure of an immigration judge at a recent hearing attended by some members of the CIS staff. (We are going to blur some minor details to protect the identities of the players.)

It was an example of how difficult it can be to provide justice on the mass basis that has been caused by the huge backlog in the immigration courts, often described by our colleague Andrew R. Arthur. It also showed how the courts' resources can be wasted in individual cases.

The first thing we noticed as we entered the room was the absence of the DHS lawyer; the interpreter was in place, as were the asylum applicant and her lawyer. The judge arrived shortly thereafter and noticed the absence. After a few minutes, a staffer arrived saying that there had been a mix-up and that he would try to find a lawyer; 20 minutes later he showed up again saying that a lawyer had been located, but that it would be another 20 minutes before that person had a chance to get familiar with the file.

There are five essential players for hearings like this one: the judge, the alien, the latter's attorney, and the lawyer for the government; in many cases, as in this instance, an interpreter is needed, too. If one of the five is missing, nothing substantive happens.

So we all waited, and waited.

Later, when both lawyers were present, and after the government lawyer explained the nature of the mix-up, the alien's lawyer approached the bench with a single sheet of paper that related to the case. What an attorney is supposed to do under these circumstances is to give a copy of the document to opposing counsel, to give another to the judge, and to keep a third. That is not just a courtesy, it is demanded by the court's rules.

The judge gently chided the offending attorney and then — given the lack of a clerk in these proceedings — the judge got up, crossed the room, and used a copy machine to make the needed number of copies. Everything, again, came to a stop.

The judge, noting the loss of an hour at this point, asked the two lawyers how long their presentations would take. The alien's lawyer said an hour and a half, which was greeted by a judicial raised eyebrow, and the government lawyer said it depended on what the first lawyer had to say. The judge added that there would be an oral decision, and that this sometimes took an hour.

Then the judge turned to the matter that had caused a postponement of the case the prior month, the question of whether the alien could understand the proceedings. There appeared to be two problems: what language or languages would be needed, and whether or not the woman had a properly installed hearing aid.

It was stated that the applicant, a native of Country A, and a long-time resident of Country B, understood presentations better in Language A, but was better able to express herself in Language B. So the judge had arranged, and this is either highly unusual or unique, to have two court-appointed translators present, one for each language.

The judge then tried a couple of different approaches. First, Interpreter A whispered in the ear of the alien, and translated the answers; then Interpreter B played that role. The judge sensed that neither approach was working.

The judge then moved on to the matter of a hearing aid. A letter from some kind of hearing professional was introduced; that person had an office about 200 miles from the alien's residence. Why use someone so distant, the judge asked, and the first reply was not (to me, at least) very convincing and the second reply was completely different from the first.

As to the hearing aid, the alien said that she had had one for seven years. "How often have you used it?", the judge asked. "Maybe twice" was the response.

The judge at this point showed the slightest level of irritation, aimed mostly at the alien's lawyer, saying that the court had already postponed the case once to solve the understanding problem, that the court had provided two interpreters this time around, and that all of these moves were designed to protect the alien's rights — but there were still problems.

Then the judge did something unexpected, letting us know that the judge spoke Language A and that it was clear to the judge that the alien was not understanding the proceedings. The judge called for another postponement, saying that this was the last time this would happen, and implied that if the understanding problem was not cleared up, the alien would lose the case. Asylum applicants have the burden of proof in these circumstances.

Later, in response to my question, the judge told me what I expected to hear: that the case had not been assigned to this judge because of this judge's linguistic skills, and there never are such assignments. Everything is recorded in English.

My sense is that asylum applicant and her lawyer fell down on the job of working through the hearing problem, and were extremely lucky in the judge that they drew for the case. Either that or the applicant was so stubborn in her reaction to the hearing aid as to undermine her own cause. Or both. No one in the courtroom quite said any of these things.

Further, the woman has lived in the States for at least 15 years, but no one asked if the proceedings could be conducted in English. Nor did the alien volunteer any comments in English.

The case was an exception. Most merits hearings like this one are finished in an hour or two, and there are few postponements once a merits hearing starts. But this one collected just about as many preliminary problems as one could possibly imagine, and maybe more.