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What was a Los Angeles immigration judge thinking when he denied asylum to a Guatemalan immigrant fleeing political oppression? Not much, apparently, according to a unanimous panel of the 9th U.S. Circuit Court of Appeals, which overturned Judge Nathan Gordon, an immigration judge (IJ), criticizing him for issuing a ruling that it called “incomprehensible” and “extreme in its lack of a coherent explanation.” Recinos v. Gonzales, No. 05 C.D.O.S. 2156. The panel said Gordon’s opinion was so muddled that the judges simply couldn’t figure out what was going through his head. The “IJ’s opinion,” Judge Marsha S. Berzon wrote for the panel, “jumbles together discussions of Recinos’s credibility, past persecution, future persecution, changed country circumstances, and relocation. As a result, regarding at least five crucial points, we cannot tell what factual or legal determinations, if any, the IJ made. Accordingly, in many instances, we cannot determine what holdings of the IJ we should review.” It’s easy to see why. The 1999 decision read, in part: “I find the respondent is credible, but I don’t find that his story relates to or meets the burden to establish persecution, per se, under that ground. The credibility issue brings many doubts have arisen in that as to the actual happenings and that what will happen to him if he is to be returned.” Berzon was scathing: “Although that sentence defies parsing under ordinary rules of English grammar, it appears to cast doubt on the credibility of Recinos’s testimony as a whole, or his testimony regarding past persecution, or his subjective fear of future persecution, or the reasonableness of that fear. Any attempt to discern which, if any, of these steps in the requisite analysis was intended would be guesswork.” The panel attached Gordon’s decision to their ruling. Attorneys for Ernesto Adolfo Recinos de Leon are not exactly sure what happened in immigration court, either. But Clair Cifuentes of Los Angeles, who argued the case in front of Gordon, said that the judge appeared to be “dozing” during parts of the hearing. Gordon, now 78, retired in December 1999, nine months after issuing the Recinos opinion. In a telephone interview, Gordon called Cifuentes’ claims “baloney.” “This is nonsense,” Gordon said, adding that he always paid attention on the bench when listening to asylum claims, even though “the arguments were all the same.” As is common, Gordon did not type up his decision. Rather, it was delivered orally in open court. Transcripts are only made once the matter goes up on appeal, and they’re done by a pool of typists on the East Coast. Usually, the transcripts are sent back to judges for editing before the record moves on to the Board of Immigration Appeals. In this case, Gordon was long gone from the bench when the transcript would have come back. He said that no one contacted him in retirement. “If I had read it over, I would have corrected it,” said Gordon. The 9th Circuit panel cut Gordon- and the immigration court-some slack because of the overwhelming number of pending cases. Immigration courts and government attorneys have been working overtime for years now to reduce the backlog, and, through the controversial “streamlining” procedure, the Department of Justice has shifted much of the burden to the 9th Circuit, which is now inundated with immigration appeals. “Those sobering realities, however, do not change longstanding principles governing judicial review of agency decisions . . . .We cannot, with any confidence, discern the grounds for the agency’s action,” Berzon wrote. “The IJ’s opinion-which appears to be an unedited version of a badly transcribed, rambling set of oral observations-is incoherent regarding both the findings made and the legal standards applied.”

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