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Cham v. Attorney General of the United States

April 28, 2006


PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS Agency No. A79-307-524 Immigration Judge: Hon. Donald V. Ferlise.

The opinion of the court was delivered by: Barry, Circuit Judge


Argued January 9, 2006

Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,*fn1 District Judge.


"It is a hallmark of the American system of justice that anyone who appears as a litigant in an American courtroom is treated with dignity and respect. That expectation must be met regardless of the citizenship of the parties or the nature of the litigation. In a country built on the dreams and accomplishments of an immigrant population, a particularly severe wound is inflicted on that principle when an immigration matter is not conducted in accord with the best of our tradition of courtesy and fairness."*fn2

The case now before us exemplifies the "severe wound . . . inflicted" when not a modicum of courtesy, of respect, or of any pretense of fairness is extended to a petitioner and the case he so valiantly attempted to present. Yet once again, under the "bullying" nature of the immigration judge's questioning, a petitioner was ground to bits. That immigration judge's conduct has been condemned in prior opinions of this court. See, e.g., 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))."*fn3

On the day on which oral argument was heard in this case, a Deputy Assistant Attorney General appeared, at our request, to explain what, if any, procedures are followed when repeated conduct of this nature is seen. It is not coincidental, we think, that on that same day the Attorney General announced "a comprehensive review of the immigration courts." In a memorandum to immigration judges,*fn4 referenced during argument, the Attorney General made the following statement:

I have watched with concern the reports of immigration judges who fail to treat aliens appearing before them with appropriate respect and consideration and who fail to produce the quality of work that I expect from employees of the Department of Justice. 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 concluded his statement by reminding immigration judges that "[t]o the aliens who stand before you, you are the face of American justice" and "insist[ing] that each be treated with courtesy and respect." We agree that most immigration judges "ably and professionally" discharge what surely are "difficult duties." 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.


We begin with a taste of the conduct which so troubles us, conduct which tainted the entire proceeding. At the very outset of the hearing, petitioner Abou Cham said, in English, that he was born in 1978.


Q: All right. Remember what I told you, Mr. Cham? Mr. Cham, these instructions are not really earth shattering. They're not that complicated. We are going to stay totally in the Wolof language, now. All right?

A: Okay.

Q: Just, just answer in the Wolof language. It's rather simple. All right. What's your full date of birth, sir?

A: 1979.

Q: All right. Did you not just tell me 1978?

A: '78.

Q: Mr. Cham--


It's going to be a long day.


Q: Mr. Cham, the question is a rather basic question. When were you born? You said in English, 1978. You said to interpreter in the Wolof language, 1979, or at least that was interpreted as 1979. I just brought that to your attention. Now, we're back to 1978. When were you born, Mr. Cham? Give me your date of birth?

A: I, I cannot count it in Wolof. That's the reason why I'm a little confused.

Q: I want to know the date you were born, sir.

A: 1978.

Q: What date? Give me a month.

A: September. September 28.

Q: And, please --

A: I'm sorry, sir. I'm sorry.

Q: Would you, please, remain in the Wolof language. I don't know why you're doing this. I'm giving you instructions to speak only in Wolof and you keep intermingling English and Wolof. So, what's your date of birth, now? Sir, the questions are going to get progressively more difficult. We're two minutes into the hearing and already you're having difficulty with a simple question. When were you born?

A: When it come to counting, Your Honor, I am, I'm not very, very good at it in Wolof. I am better at counting in English ...

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