Ninth Circuit Orders New Deportation Review, Says Immigration Judge Was Biased

Friday, September 5, 2003

Page 3

Ninth Circuit Orders New Deportation Review, Says Immigration Judge Was Biased

By a MetNews Staff Writer

A Mexican national who entered the United States illegally is entitled to a new hearing on his bid for a hardship waiver of deportation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Alejandro Reyes-Melendez did not get a “full and fair hearing,” Judge Sidney Thomas wrote for the appellate court, because of bias on the part of the immigration judge.

Immigration Judge Ingrid Hrycenko ruled that Reyes, who entered the United States without authorization in 1988, failed to establish that he met the statutory tests for waiver—that he was a person of good moral character whose deportation would cause severe hardship to an immediate family member who is a United States citizen or resident.

Reyes-Melendez, the father of three children, two of them native-born citizens, said the youngsters would suffer if he were no longer around to care for them. But the immigration judge questioned the seriousness of his commitment to the children, noting that one was the product of an extramarital affair and lived with his mother, while the other two lived with Reyes and his wife.

Thomas, noting that adultery is not a bar to a finding of good moral character, said the IJ went beyond the bounds of judiciousness, treating the applicant in a hostile and sarcastic manner. Among other things, the appellate jurist noted, the judge suggested that Reyes “lived in a ménage a trois,” described his son as “the offspring of his lover,” and accused him of asking her to “reward this illicit relationship.”

Thomas wrote:

“The record thus indisputably demonstrates that the IJ was hostile towards Reyes-Melendez and judged his behavior as being morally bankrupt....The government’s argument that the presence of counsel is sufficient to ameliorate against an unfair hearing, in which an IJ fails to act as a neutral fact-finder, is unpersuasive and without legal authority.”

Reyes’ attorney, Andrew Knapp, said he had been “outraged” at the IJ’s conduct and was pleased that the Ninth Circuit “realized the abusiveness” of the situation. It is rare for a denial of suspension of deportation based on hardship to be overturned by the appellate court, he said.

He added that he will ask the Board of Immigration Appeals to find remand to the immigration judge unnecessary and grant relief directly. Barring that, Knapp said, he will ask that the case be assigned to a different IJ.

The case is Reyes-Melendez v. Immigration and Naturalization Service, 02-70526.