Cham v. Attorney General of U.S., 04-4251.

Citation445 F.3d 683
Decision Date28 April 2006
Docket NumberNo. 04-4251.,04-4251.
PartiesAbou CHAM, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Joseph C. Hohenstein, (Argued), Orlow & Orlow, Philadelphia, PA, for Petitioner.

Jonathan Cohn, (Argued), United States Department of Justice, Civil Division, Washington, D.C. and John J. Andre, (Argued), Donald E. Keener, Douglas E. Ginsburg, John D. Williams, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, D.C., for Respondent.

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

OPINION OF THE COURT

BARRY, Circuit 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."1

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))."2

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,3 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.

I.

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.

JUDGE TO MR. CHAM

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 —

MS. DUSSEK TO MS. IBRAHIM.4

It's going to be a long day.

JUDGE TO MR. CHAM

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 than I am in Wolof. I'm very sorry.

Q. I'm not asking you to count. I'm asking you to give me a month. Give me a month that you were born.

A. Okay. I would like to know, Your Honor, if I can say the month in English?

JUDGE TO [INTERPRETER]

Mr. Interpreter, in the Wolof language, are the months January, February, March — are there 12 months?

[INTERPRETER] TO JUDGE

Yes, there are, there are 12 months but they use the arabic [names for the] month ...

JUDGE TO [INTERPRETER]

All right. Well, you'll know that. You'll know the months — don't you?

[INTERPRETER] TO JUDGE

Your Honor, personally, I know few of them. I don't know all of them ... I use the French or the English ...

JUDGE TO MR. CHAM

Q. Okay. What's the — give me your date in English, date of birth in English.

Q. September 28, 1978.

(A.R.91-93.)

And just moments later:

JUDGE TO MR. CHAM

Q. Mr. Cham, do you have a problem following directions?

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

Q. Well, I'm, I'm tired. I'm sorry. And I'm tired of hearing you say I'm sorry. I don't want you speaking English.

A. Okay.

Q. Don't you understand the problem? Don't you understand this premise?

A. Okay.

Q. I don't want you speaking English. I gave you the opportunity and you flubbed the opportunity. You were tripping all over the words in English. Your English is not that good. I thought it was better. Now, instead of using your native language with the interpreter that I've provided at some cost to the Government, you want to impress me with your English. Stay in that Wolof language.

A. Okay, sir.

Q. You're just delaying everything here.

A. I'm sorry, sir. I'm sorry. I'm very sorry. Forgive me.

(A.R.99-100.)

Shortly thereafter, Judge Ferlise saw another opening when the subject of Cham's age resurfaced.

MS. DUSSEK TO MR. CHAM

Q. Now, you stated that you were 14 when you left the Gambia. Is that right?

A. Yes.

Q. But in, in, in 1994, if you were born in 1978, you would have been almost 16, wouldn't that, wouldn't that be true?

A. I know my age but I think I'm in the — not far from, not far in between.

JUDGE TO MR. CHAM

Q. Not far from what?

A. Not far from between 14 and 16 — 15.

Q. You were 16, sir.... You were born in '78. You were 3 months less — shy of being 16.... You told me you were 14 when [the coup] occurred. I'm telling you you were three months short of being 16. There's a big difference between 14 and almost 16. So I want to know why you told me you were 14.

A. I apologize. It's just so much going in my mind but that's a mistake of — on my part.

JUDGE TO MS. DUSSEK

Proceed.

(A.R.140-41.)

The belligerence continued:

JUDGE TO MR. CHAM

A. No, sir, I'm — like I'm very sorry....

Q. Would you stop with the sorry. Just give me an answer.

(A.R.160.)

...

Q. You know what I'm talking about, now give me an answer.

(Id. at 163.)

Q. Look, I'm not going to play games with you. You know what I'm talking about. Now, you better come up with an answer pretty quickly or I'll find that you're non-responsive.

A. I'm sorry.

(Id.)

Towards the end of the second day of the hearing, and immediately after excluding evidence Cham sought to present, Judge Ferlise went after Cham one last time.

JUDGE TO MR. CHAM

Q. All right. All right, Mr. Cham, I want you to take the witness stand. Why are you laughing, Mr. Cham? Is this funny? Is this whole procedure funny to you?

A. No. It's not funny.

Q. Then why, why are you laughing inappropriately?

A. I'm sorry.

Q. Well, fine but if, if there's a joke to be shared I'm more than happy to share the joke with you. What's so funny?

A. It's just because I'm thinking about sitting back here and being hollered at and I'm sorry about.

Q. Hollered at? Stand up, Mr. Cham.

(A.R.185.)

II.

Petitioner Abou Cham, now twenty-seven years of age, is a citizen of The Gambia. He claims to have entered the United States on or about February 2, 2001 in Chicago, using the Gambian passport of his cousin, Fotou Cham, who lives in the United Kingdom. On April 10, 2001, Cham filed an application for asylum, withholding of removal, and for relief under the United Nations Convention Against Torture ("CAT") with the former Immigration and Naturalization Service ("INS"), now the Bureau of Immigration and Customs Enforcement ("BICE"). On June 4, 2004, the INS initiated removal proceedings against him by issuing a Notice to Appear. Judge Ferlise held hearings on April 7, 2003 and June 23, 2003, denied...

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