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Third Circuit Scolds Immigration Judge for Asylum Denial Hearing

By Robyn Hagan Cain | Last updated on

The Third Circuit Court of Appeals vacated and remanded a Board of Immigration Appeals (BIA) decision this week, finding that Immigration Judge Annie S. Garcy completely took over the cross-examination for government’s counsel, and thereby ceased functioning as a neutral arbiter.

Vasil Abulashvili and his wife, Teona Klibadze, are citizens of Georgia, a former U.S.S.R. republic. They entered the United States on visitor visas in 1999 and remained longer than authorized. On December 20, 2004, Abulashvili filed an affirmative application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

In his asylum application, Abulashvili claimed that he had been persecuted in Georgia on account of his membership in the opposition Labor Party of Georgia (LPG), and detailed the events that prompted him to flee.

At a hearing before an Immigration Judge (IJ), Abulashvili conceded the charge of removability, but argued that he was entitled to relief based upon past persecution and fear of future persecution on account of his membership in the LPG opposition party, and his knowledge of government corruption. Abulashvili stated that he feared that he would lose his life - as well as his family - if he returned to Georgia.

On cross-examination, a "woefully unprepared" government attorney began questioning Abulashvili, only to be interrupted by the IJ, who took over the cross-examination. The IJ later denied Abulashvili's asylum application.

Judge Garcy, the IJ, determined that Abulashvili's application was untimely, and that he had failed to demonstrate that he qualified for an exception to the time limitation. She further held that, even if Abulashvili had timely filed the application, he was still ineligible for relief because his claims were not credible.

Judge Garcy defended her decision to take over Abulashvili's cross-examination by noting that the government's attorney had not been prepared, and explaining that her intervention was necessary to ensure due process. The Third Circuit Court of Appeals disagreed.

The Third Circuit held that the IJ's adverse credibility determination was not supported by substantial evidence, and found that Abulashvili's due process rights were violated when Judge Garcy took over the cross-examination at the hearing because she ceased to be a neutral arbiter.

Here, the court notes, the IJ asked Abulashvili a total of 87 questions. Once she began cross-examining Abulashvili, the government's attorney did not follow up with a single question.

Immigration Judges have been widely criticized over the last ten years for improperly handling immigration appeals. Do you think this Third Circuit Court of Appeals opinion reflects an isolated incident, or is this evidence of systemic judicial failure in the region?

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