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Federal appellate Judge Richard Posner is known as a strong critic of immigration judges. And just in case anyone forgot, the 7 th U.S. Circuit Court of Appeals judge recently sent out a reminder in the form of another stinging opinion. But this time around, a fellow judge in a concurring opinion warned that the court has been “unnecessarily critical.” 7 th Circuit Judge Terrence T. Evans joined in the unanimous April 29 ruling that reversed denials of asylum petitions for immigrants from Bulgaria and Kazakhstan but, apparently anticipating an acidic opinion from Posner, wrote in his concurrence that immigration judges “do a fairly good job.” Guchshenkov v. Ashcroft, No. 03-1392 consolidated with Dimitrov v. Ashcroft, No. 03-2166. Evans’ concurrence cited nine scathing excerpts from a January opinion written by Posner, and signed by him, which reversed denial of asylum for immigrants from Bulgaria and Sudan. Blagoev v. Ashcroft, No. 03-1115. [NLJ, Jan. 19]. Evans described the stress on immigration judges who, working without a court reporter or clerk, record proceedings on cassette tapes and dictate rulings, complete with legal opinions, at the immediate conclusion of hearings. “Contested asylum hearings themselves are not the sedate, high-tech proceedings one often sees in the courtroom of a United States district judge,” Evans wrote. While Evans sympathized with immigration judges working under grueling conditions, Posner wrote bluntly that the most recent cases displayed “the continuing difficulty” of immigration judges to give “reasoned explanations for their decisions to deny asylum. “We have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think,” Posner wrote. Posner said of the ruling in Guchshenkov, “It is impossible to follow the immigration judge’s reasoning process.” In the other case he noted “very deep confusion” on the part of the judge, who described Dimitrov as “basically credible but not inherently persuasive.” “We do not understand what this means,” Posner wrote. Both denials were upheld with no written opinion by the Board of Immigration Appeals, which Posner described as “characteristically perfunctory.” Elaine Komis, spokeswoman for the Executive Office for Immigration Review of the Department of Justice, cited a policy of not discussing cases and declined to rebut Posner’s critique of the department’s jurisprudence in asylum cases. “We don’t discuss how immigration judges reached their decisions,” Komis said. “The decisions speak for themselves.” Judith E. Golub, senior director of advocacy and public affairs for the American Immigration Lawyers Association, said the immigration hearing and appeal process has worsened since an August 2002 reorganization ordered by Attorney General John Ashcroft that reduced the Board of Immigration Appeals from 23 to 11 judges, initiated review of appeals by a single judge instead of a three-judge panel and forbade de novo reviews of the factual bases of denials of asylum. “Ashcroft reduced the number of judges in the bizarre belief it would encourage the remaining judges to expedite the cases,” Golub said. Charles H. Kuck, an immigration lawyer and partner at Weathersby, Howard & Kuck in Atlanta, described immigration court as a “surreal” judicial netherworld that is nominally a civil proceeding but with all the ramifications of criminal court for immigrants facing jail and deportation. Immigration and Customs Enforcement, the successor agency to the Immigration and Naturalization Service now part of Department of Homeland Security, is represented by counsel at the hearings but few immigrants are, Kuck said.

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