The Green Card Welcome to the Newsletter of the FBA’s Immigration Law Section EILEEN SCOFIELD, CHAIR Quotes of the Month “The discretion of a judge is said to be the law of tyrants; “Courts are the mere instruments of the law, and can will it is always unknown; it is different in different men; it is nothing. When they are said to exercise a discretion, it casual and depends upon constitution, temper, and pas- is a mere legal discretion, a discretion to be exercised in sion. In the best, it is oftentimes caprice; in the worst, it discerning the course prescribed by law; and, when that is is every vice, folly, and passion to which human nature is discerned, it is the duty of the court to follow it. Judicial liable.” power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving —Lord Camden, Case of Hindson and Kersey, 8 How. St. effect to the will of the legislature; or, in other words, to Tr. 57 (1680). the will of the law.” —Chief Justice John Marshall, Osborn v. Bank of the United States, 22 U.S. 738 (1824). PUBLISH IN THE GREEN CARD! The Green Card always seeks news items and articles of all sorts. Have you formed a new firm, gotten promoted, or won a big case? Send me an article. I’m especially interested in hearing about Section activities (with photos!), such as luncheons, CLE’s and Younger Lawyer activities. Here is your chance to gain the respect and admiration of your friends and colleagues! Send your article to me at [email protected] in Word format. Photos should not be imbedded in the Word docu- ment. Please attach them as jpegs to your email. Larry Burman, editor, The Green Card In This Issue Immigration Law Section Seminar at Harvard ......................................................................... 3 Interview with an Immigration Judge: John F. Gossart, Jr. ........................................................ 3 The Curse of the “Recommended Approval” ............................................................................. 5 Our Broken Immigration Courts .............................................................................................. 6 Ethical Concepts For Immigration Lawyers: The “Cap” of Conscience ......................................... 8 Diop Motions In The Third Circuit: Is A Habeas Writ A Precondition To Seeking Bond Before The Immigration Court? .............................................................................................................. 12 Younger Lawyers Division Hosts Successful Happy Hour at Annual Conference in Memphis ...... 14 Backlogs in Immigration Court Create Concerns ..................................................................... 16 Cognizability of Gang-Related Asylum Claims: Looking Back and Looking Forward .................. 17 Fall 2015 Published by the Immigration Law Section of the Federal Bar Association Immigration Law Section Seminar at Harvard On Nov. 6, 2015 the FBA-ILS Law Student Committee, the Harvard Immigration and Refugee Clinical Program and the Harvard Immigration Project sponsored a judi- cial panel about adju- dicating immigration and asylum cases. This was entitled “Access to Justice and Judging in the Immigration Context: A View from the Bench.” The three pan- elists were: Honorable Michael A. Chagares of the United States Court of Appeals for the Third Circuit; Honorable Robin Kneeling Lucy Cummings (Harvard Law Clinical Program Administrator), Katrina Fleury (Co-Chair, Harvard Law School’s E. Feder of the Boston, FBA Immigration Law Section) MA Immigration Court Standing: Sabi Ardalan (Assistant Clinical Director and Lecturer on Law at Harvard), Maggie Morgan (Albert M. Sacks and Hon. Dorothy A. Clinical Teaching and Advocacy Fellow), Hanne Sandison (Co-Chair, Harvard Law School’s FBA Immigration Law Section) , Harbeck of the Elizabeth, Deborah Anker (Harvard Law Clinic Director and Clinical Professor), Hon. Robin E. Feder, IJ (FBA-ILS Immediate Past Chair New Jersey Immigration and Immigration Judge from Boston EOIR Court), Hon. Michael A Chagares, USCJ (Third Circuit Court of Appeals), Hon. Dorothy A. Harbeck, IJ (Immigration Judge for Elizabeth EOIR Court) Court. Immigration Judge Discrimination Case Settled The Department of Justice has at the integrity of the immigration agreed to settle the discrimination court system. case filed by Immigration Judge A. Under the settlement agreement, Ashley Tabaddor [see Green Card, Oct/ DOJ agreed to lift the recusal order, Nov 2014, page 5]. and pay Judge Tabaddor $200,000 in Judge Tabaddor was very active in attorney fees and damages. her Iranian-American community in She was represented by Ali M. M. Los Angeles. As a result, EOIR ordered Mojdehi, Janet Dean Gertz, John her to recuse herself from hearing all F. Cieslak, Allison Rego, and Erin cases involving Iranian nationals. She Trenda of Cooley LLP. The case is filed suit in U.S. District Court, alleg- Tabaddor v. Holder, no. 2:14-cv- ing unlawful discrimination based on national 06309, in the U.S. District Court for the Central origin, and a violation of her freedoms of speech District of California. and association. The National Association of Judge Tabaddor is a member of the Board of Immigration Judges (NAIJ), and several bar advo- Governors of the Immigration Law Section. She cacy groups, filedamicus briefs in her support. is a former Assistant U.S. Attorney, and teaches NAIJ argued that a blanket recusal order strikes immigration law at UCLA law school. 2 | The Green Card Interview with an Immigration Judge: John F. Gossart, Jr. BY JASON DZUBOW In 2014, Immigration Judge John F. Gossart, Jr. retired Asylumist: Are there any cases that you worked on that after more than 30 years on the bench. He sat in Baltimore, were particularly memorable? where he was well-known and well-liked by attorneys on both side of the aisle (I myself had many cases with him), JFG: I was the IJ in two Nazi war criminal cases. In the case and his absence is still felt in his Court. Aside from his judi- of George Theodorovich, the trial lasted 3½ weeks. He was cial work, Judge Gossart was (and is) an adjunct professor a Ukrainian police officer who came to the U.S. under an of law and a legal educator in the wider community. The executive order. He denied all charges and claimed that the Asylumist caught up with Judge Gossart to ask about his case against him was a Russian plot. I went to the Russian career, some memorable moments, and his opinions on the embassy to review documents, and at trial, several Survivors issues of the day in Immigration Court: testified. I entered a 154-page decision, (my longest deci- sion), where he was found deportable. He appealed to the Asylumist: How did you get to be an IJ? And why was this BIA. While the case was on appeal, Theodorovich fled the position interesting for you? U.S. and went to Paraguay. John F. Gossart: I came to immigration law totally by acci- Asylumist: As an IJ, what are some common problems that dent. I wanted to work for the Department of Justice, in you see when lawyers present cases? public sector law, and I applied for a position there. While I was waiting, I hung my own shingle and practiced law JFG: Dr. Stanley Sinkford, a renowned doctor and professor out of my house. When DOJ hired me to work at INS (the at Howard Medical School, always told his medical students, Immigration and Naturalization Service), I couldn’t even “Proper Preparation Prevents Poor Performance,” meaning spell immigration. it is usually a lack of preparation that leads to problems. My first position there was as a Naturalization Attorney. Some lawyers become too comfortable with their role; they At the time, applicants for naturalization had to file their think they can come into court and wing it. Also, proper petitions in U.S. District Court and present two character wit- vetting of clients and—more importantly—witnesses is very nesses. I would interview the petitioner and the witnesses, important. You cannot meet the witnesses 30 minutes before and make recommendations about whether the applicant the hearing and hope everything goes well. I’ve also seen should be permitted to naturalize. I remember one Judge in instances where the lawyer did not know the applicable law. the Eastern District of Virginia—“Roarin” Orin Lewis—who This was a particular problem among lawyers who dabble roared at all the attorneys. In those days, homosexuals were in immigration law. A number of attorneys came before me ineligible to naturalize because they were considered “sexual who thought that the IJ has equity powers. They would ask deviants.” I argued for a grant of naturalization for an admit- the court to allow the respondent to stay in the U.S. even ted homosexual because he abstained from sexual activities. where there was no basis to allow him to stay. I fear that The petition was denied by Judge Lewis. In another case such lawyers portray this idea to their client—that the IJ can involving two Russian “swingers” who had admitted to adul- let you stay, even without a legal basis for relief. tery, Judge Lewis called me into his chambers and read me the riot act. The two were consenting adults, but that didn’t Asylumist: How do you handle cases where you feel that matter to Judge Lewis. He denied the case. At the time, the the applicant may have relief, but lawyer errors and/or inef- statute held that persons who committed adultery lacked fective assistance of counsel might cause the alien to lose? good moral character. Then, after a stint as Deputy Commissioner of JFG: As an IJ, you almost never want to admonish an attor- Naturalization, I became a trial attorney for INS. Eight years ney in public; it is better not to be on the record or in the later, I had the opportunity to become an Immigration Judge. presence of the client. I have talked to lawyers in chambers, On October 30, 1982, I was appointed an IJ by Attorney however.