In the case of Apouviepseakoda v. Gonzales, the majority and the dissent of the Seventh Circuit heavily criticized the immigration judge’s behavior during the removal hearing. Yet, the majority seemed to go out of its way to affirm denial of asylum. The majority held that, although the IJ’s behavior during the asylum hearing was inappropriate, it did not amount to reversible error. The majority would reverse only if the IJ’s behavior were so inappropriate that it frazzled the asylum applicant or barred large portions of the applicant’s testimony. What this decision does not account for is the fact that the IJ, who was openly hostile towards the asylum applicant, was making a subjective finding regarding the asylum applicant’s truthfulness and believability. In such a situation, the Seventh Circuit’s rule requiring actual prejudice in addition to IJ bias will frequently result in the denial of otherwise valid asylum claims. Where the IJ exhibits bias against the asylum applicant, the ability of the IJ to serve as a fact-finder is compromised. When the basis for the denial of an asylum application is an adverse credibility determination, the threshold for a finding of reversible error should be much lower where the IJ exhibits bias against the asylum applicant.
Michael Y. Joon Ko,
IJ Bias: The Contamination Theory,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol3/iss1/13