concluding that even if judicial review of the BIA’s single-judge - 12 - No. 06-3380 Lazar v. Gonzales mechanism were proper, the petitioner had “failed to demonstrate that the case should have been reviewed by a three-member panel of the BIA”
How later courts described this case
- concluding that even if judicial review of the BIA’s single-judge - 12 - No. 06-3380 Lazar v. Gonzales mechanism were proper, the petitioner had “failed to demonstrate that the case should have been reviewed by a three-member panel of the BIA”
- concluding that even if judicial review of the BIA’s single-judge mechanism were proper, the petitioner had “failed to demonstrate that the case should have been reviewed by a three-member panel of the BIA”
- stating that “a constitutional violation results in prejudice if it potentially [affected] the outcome of the proceedings.” (internal quotation marks omitted) (alteration in original)
- denying the petition for review because, although there was a defect in the removal proceedings that was “quite troubling” and denied the petitioner his due process rights, the petitioner did not allege, and there was no evidence, that he was prejudiced by the defect
Written by the judges who cited it.
The opinion
SUTTON, Circuit Judge,
concurring.
I join Judge Moore in upholding the immigration judge’s (IJ’s) denial of asylum (Section A) and denial of withholding (Section C), and I join Judge Moore in concluding that any constitutional due process vio *877 lation did not prejudice Vasha. But I do not join the concurrence’s proposed resolution of the merits of the due process claim. It is well within our discretion to avoid the constitutional question because all agree that any error did not prejudice Vasha, see, e.g., Warner v. Ashcroft, 381 F.3d 534, 539 (6th Cir.2004) (dismissing petitioner’s due process claim for lack of prejudice without reaching the merits), and in my view the due process claim is a difficult one that does not submit to easy resolution or necessarily to the resolution proposed by the concurrence.
Given the nature and volume of immigration hearings and the number of them that arise from the same country, I suspect that it is not unusual for immigration judges to have extra-record factual information about the dispute in front of them: the countries, their geography, their history, their politics, as well as other more specific knowledge about the case, such as the parties involved in it or certain nationals in the United States and their involvement in a country’s political situation. The information may be commonly known or not commonly known; it may come from another case or some other source; and it may pre-date the case in question or may be obtained during the case. Under any of these circumstances, it would not seem unusual or necessarily wrong for the IJ to disclose the information to the parties. The critical point is that the IJ must let the parties know the source of information and give the parties a chance to comment on it, to introduce evidence about it or, if necessary, to seek the recusal of the judge.
In this case, the IJ not only told the parties what she had learned and how she had learned it but also gave them an opportunity to comment about it. Vasha’s attorney did not dispute the facts the IJ had learned, but requested that “something [be] put on the record,” JA 423, other than the IJ’s own, recounting of her conversations with her clerk. When the case reconvened about six weeks later, the government, with the IJ’s permission, called Bardaj as a witness and established that Bardaj was related to Vasha and that Bardaj had hosted and made a public introduction of the current Albanian president when he visited Detroit. Vasha’s attorney then took the opportunity to cross-examine Bardaj fully.
While the manner by which the IJ first obtained this information was unusual and is hardly to be encouraged, it is well to remember what the information suggested — that the petitioner was at best being less than candid about his fears of returning to Albania and at worst committing fraud on the court. Had the same information been obtained through the same type of channel in a criminal case and had the information shown that a government witness was being less than candid about the defendant’s conduct in the case, would we necessarily conclude that a district court judge had acted improperly just by giving the parties an opportunity to comment about the information? There are countless possibilities here — in terms of how extra-record information may come to the attention of a decisionmaker, how it may bear on a case and what the decision-maker should do about it (including the possibility of offering to recuse herself). It is precisely this array of possibilities that makes it unclear to me where the Constitution draws the line and whether it was crossed in this case.
■ What is clear to me is that the concurrence has not identified a case that parallels this one — which is to say, it has not identified a case in which the IJ obtained information relevant to the dispute, disclosed that information to the parties and gave the parties an opportunity to comment on it, and a court of appeals (or the *878 United States Supreme Court) nonetheless concluded that the decisionmaker had violated the Due Process Clause. Thus, while I wholeheartedly agree that “petitioners in [immigration] proceedings are entitled to an unbiased arbiter,” supra at 8 (quoting Ahmed v. Gonzales, 398 F.3d 722, 725 (6th Cir.2005)), the question remains whether the IJ in this case offended that requirement.
No less importantly, if the problem with the IJ’s conduct was that it suggested that she had abandoned her role as a neutral arbiter, the IJ’s disclosure gave petitioner ample options to address the issue. He could have asked the judge to recuse herself, which he did not do. See Noorani v. Smith, No. 93-35666, 1994 U.S.App. LEXIS 27369, at *13 (9th Cir. Sept. 22, 1994) (rejecting due process claim arising from allegation that IJ was biased because petitioner could have, but did not, file a motion to recuse the IJ). Or he could have attempted to make a record about the clerk’s role in the process, so that an appellate court would know (rather than be forced to speculate about) what exactly happened between the judge and her clerk and how it affected the judge’s decision-making process. See Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.2003) (“While ... we are understandably troubled by some of those comments, in the context of the record as a whole there is insufficient evidence to conclude that the overall proceedings were biased in violation of Abdulrahman’s right to due process.”); Kim v. INS, 24 F.3d 247 , 1994 WL 168256, at *1 , No. 92-70780, 1994 U.S.App. LEXIS 11224, at *2 (9th Cir. May 4, 1994) (denying due process claim where IJ stated “I find that the Government has sustained its burden. The only thing I’m continuing is for the benefit of the Court to be sure I’ve got the complete conviction record.”); id. at 247 (“Although ... it may have been improper for the IJ to comment on the potential outcome before all evidence was presented, it is clear from the record that the IJ gave Kim the opportunity to present evidence and fully considered all evidence presented.”); see also Banks v. Farley, 151 F.3d 1032 , 1032, No. 97-1282, 1998 U.S.App. LEXIS 17648,at *6 (7th Cir. July 29, 1998) (“In the lack of some form of substantiating evidence, we have no way of evaluating the veracity” of a claim that the decisionmaker was biased.); City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086, 1101 (7th Cir.1992) (“Allegations of judicial bias are very serious and should never be cast without substantiation.”); cf. United States v. Carmichael, 232 F.3d 510, 518 (6th Cir.2000) (denying a Sixth Amendment claim based on ex parte communication between government and judge because the criminal defendant, who knew about the communication, failed to object at trial); id. (“To now allow the ex parte communications to be objected to after-the-fact is a form of ‘sandbagging’ that we will not permit in the absence of proof that the content of what was in fact communicated adversely affected Carmichael’s substantial rights.”). In the absence of pursuing either option, I am hard pressed to understand how Vasha has established a due process violation.
On this record, I would prefer to explain the risks associated with the IJ’s conduct, explain that the use of extra-record information implicates due process, note that the existence of a constitutional violation is not necessary to resolving this dispute and save for another day the resolution of this question.