Court Blasts Immigrant Verdict

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Court Blasts Immigrant Verdict
By: ARTHUR S. LEONARD
06/26/2008
Email to a friendPost a CommentPrinter-friendlyIn unusually direct language, a three-judge panel of the New York-based 2nd Circuit Court of Appeals criticized federal Immigration Judge (IJ) Alan Vomacka for his handling of a Guyanese man's appeal that he not be deported for fear that his life would be endangered if he did.


The man, who will be identified in this reporting only as Ali given the potential harm he faces, made his appeal under the international Convention Against Torture (CAT), one of the legal avenues available for immigrants aiming to stay in the US.

"In light of the inappropriate remarks by Vomacka - which included gratuitous comments on the petitioner's sexuality, as well as unfounded speculations about homosexuals in general - we believe the appropriate course is to grant the petition for review, vacate the [Board of Immigration Appeals, or BIA] decision, and remand this case for a rehearing before a new IJ," wrote Circuit Judge Guido Calabresi for the court in Ali v. Mukasey, decided on June 18.

Ali, it appears, is no angel - he "established a long arrest record and was convicted of nine theft-related crimes" from the time of his US entry with other family members as a teenager in 1980. He was twice previously deported to Guyana, but managed both times to escape from security forces there and find his way back into the US.

Ali recounted that after his first deportation he was immediately placed in police custody in Guyana and subjected to harsh treatment including outrageous physical and sexual abuse. When it seemed the same thing was going to happen on his second deportation, he immediately took steps to evade his captors and return to the US.

Apparently Ali did not resolve his own issues about his sexual orientation until late in this process - he did not raise it as a ground for seeking CAT relief until the third removal proceedings were already underway. That raised credibility issues for Vomacka, the immigration judge.

One other complication was that it was a different immigration judge, in Maryland, who earlier found credible Ali's testimony that he had been mistreated upon his earlier deportations. Vomacka complained that he found it difficult to listen to those tape-recorded proceedings that had not been transcribed.

Judge Calabresi noted that Vomacka also stated that it was difficult "to understand why a respondent would be willing to disclose forcible rape by jail guards, but not willing to discuss his own sexual orientations [sic] as a homosexual." The immigration judge speculated that the issue of homosexuality might be a red herring raised by Ali to delay his deportation.