I recently appeared in court before a newly-appointed Immigration Judge. Unlike some of the new hires, this IJ had prior government experience in the immigration arena. He also previously served as a state court judge. You might think that someone with these qualifications would be well-suited for a job in Immigration Court. But if you thought that: (a) you obviously didn't read the title of this article, which is weird; and (b) you would be wrong. The judge was unprepared for the case, he did not know the law, and he ignored direct orders from a higher court.

To fully understand what happened in court that day, you'll need a bit of background.

My firm inherited this case from another lawyer. Our client was an asylum seeker who had previously been in court with a different IJ. The prior judge found the client credible, but denied asylum because the client failed to abide by the Circumvention of Lawful Pathways (CLP) rule. This rule required asylum seekers at the U.S.-Mexico border to make an appointment using the CBP-One app. For people who failed to make an appointment, asylum is automatically denied, unless they qualify for an exception to the rule. In our case, the client had been kidnapped by criminals at the border, and he sought an exception based on "an imminent and extreme threat to life or safety" from that incident. The prior IJ found that the client failed to submit sufficient evidence about the kidnapping, and thus did not qualify for an exception to the CLP bar. The judge denied asylum, but granted Withholding of Removal, which is a much less stable form of protection compared with asylum. The client appealed.

The Board of Immigration Appeals noted that although the judge found our client credible, she concluded that the client's evidence was insufficient to corroborate his claim that he faced an extreme threat at the border. The BIA found that the judge failed to explain her reasoning, and that the case should be sent back to court "for the sole purpose of the Immigration Judge making clearer factual findings applying the corroboration framework [to the CLP analysis], including providing the respondent an opportunity to respond to the [judge's] concerns."

The case was returned to Immigration Court, but since the original IJ had moved to a different court, we were assigned one of the recently-appointed Immigration Judges.

Even before the hearing began, there were signs of trouble. While we were waiting for the judge to enter the courtroom, the DHS attorney (the prosecutor) warned us that this IJ had no idea what he was doing. As soon as he took the bench, the judge proved DHS's point.

The judge began the hearing by talking as if the case was brand new and not on remand from the BIA. He obviously hadn't bothered to look at the file--not even a little bit--before coming to court. As a new judge, you should have the humility to know what you don't know. To be cautious and make sure you do things properly. To be extra prepared. After all, this is an important job that profoundly impacts other people's lives. Unfortunately, that was not the case with our judge. We had to tell him what the case was about. He hadn't even seen a copy of the BIA's remand order (we gave him our copy), and so he was unaware of what the appeals court had ordered him to do (not to worry; once he was made aware of what the BIA wanted him to do, he ignored it).

He also had not read our legal brief, where we explained how the CLP rule had been vacated by a federal court in California, and that the court's order applied nationwide. With the CLP rule vacated, there should have been nothing blocking our client from receiving asylum (and nothing for the judge to do except grant asylum). Without responding to any of our arguments, he simply noted that a ruling in California did not apply to a case in Virginia. This, despite an abundance of case law supporting our position.

We then heard testimony from our client, who answered questions about events at the border and his efforts to gather evidence about those events.

Following testimony, the IJ rendered his decision. While the judge felt that our client's kidnapping had been "reprehensible," he noted that such harm is common and predictable at the border. He concluded that the kidnapping was not the type of extreme harm required to overcome the CLP rule. Since we failed to demonstrate an exception, the IJ applied the CLP rule and denied asylum, but granted Withholding of Removal.

What the IJ did not do was follow the BIA's instructions to determine whether we submitted sufficient evidence in support of our CLP argument. He also failed to evaluate whether our client's testimony was credible and he did not explain the reasoning behind his decision. Instead, he stated without any analysis that the kidnapping was not "extreme" enough to overcome the CLP bar.

This is not how a judge should behave. A judge should follow any instructions given by the appeals court. He should evaluate whether witnesses are credible. He should explain his reasoning. In short, a judge should judge stuff.

Our IJ's failure to follow even basic protocol violated our client's right to due process of law, and was a snub to the BIA. It's also downright embarrassing.

Naturally, we filed an appeal. While the BIA ain't what it used to be (the Trump Administration fired half the judges there), I still think we have a decent chance on appeal, if only because we can show that the judge completely ignored a direct order from the Board. Of course, that is a huge waste of time, money, and stress, and it all could have been avoided if the Immigration Judge had simply cared enough to do his job.