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A Salvadoran soccer player will get another chance to stay in the U.S. after the Third Circuit reversed his deportation order in a ruling sharply critical of the judge who ordered it ( Serrano-Alberto v. Att’y Gen. , 2017 BL 199570, 3d Cir., No. 16-1586, 6/12/17 ).
Immigration judge Mirlande Tadal violated Ever Serrano-Alberto’s due process rights by “actively preventing him from making his case” to avoid removal, Judge Cheryl Ann Krause wrote for the court June 12.
It concluded that the immigration judge browbeat Serrano-Alberto—who court documents said fled his home country where he was a soccer star to escape gang violence and threats—and urged that she be removed from his case.
“In sum, the (immigration judge) was confrontational, dismissive, and hostile, interrupting and belittling Serrano-Alberto’s testimony, time and again cutting off his answers to questions, and nitpicking immaterial inconsistencies in his account,” the court said.
The court said it was rare in its experience that an immigration judge’s conduct had crossed the line.
Where an immigrant claims that an immigration judge’s behavior deprived them of their ability to make arguments, “there is a spectrum of troubling conduct that is fact-specific and must be evaluated on a case-by-case basis,” the court said.
For instance, the court said a “lacking courtesy,” frequent interjections, and general “annoyance and dissatisfaction” with the petitioner isn’t enough to warrant a due process claim, the court said.
But a “contemptuous tone, focus on ‘issues irrelevant to’ the petitioner’s claims and findings unsupported by the record” along with “‘wholesale nitpicking,’ continual abuse and belligerence,’” that prevents important parts of the immigrant’s “story from becoming a part of the record” is sufficient to make out a due process violation, the court said, quoting its earlier cases.
Given that conduct, Serrano-Alberto was entitled to another shot to prove his claim, the court said and urged reassignment of his case to a new immigration judge.
Judges Thomas I. Vanaskie and Richard Lowell Nygaard joined the opinion for the U.S. Third Circuit Court of Appeals.
Van Der Hout Brigagliano & Nightingale, San Francisco, represented Serrano-Alberto. The Justice Department represented the federal government.
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