1. Moutinho, Deborah (EOIR)
From;
Sent:
To:
Cc:
Subject:
Smith, Gary(EOIR)
Vllednesday,June02,20105:20PM
Keller,MaryBeth(EOIR)
Moutinho, Deborah(EOIR)
Page 1 of 5
and Comptalnt Number 89
First, in regardto Complalnt Number157. I obtainedthe completetran&aipt of the original hearing(91 pages)
and read it, I reviewedand printedoutthe pagesfrom the CASE databaseregardingthe case, read the 3d Circuit
decision,and sentthe completereferral packetto Judge Mills andgave her a date bywhlehto respondback to
me. I amconvincedthat she tookthis seriouslyand introspectivelylooked at her own handlingof the case. She
recognizedthe Court's criticismof her as "prosecutorial"and that her decisioncould haVebeen much better.
From my readingof the transcript.she did givethe respondentand his c:;ounsela full opportunityto presenttheir
case. In sum.I believethat she recognizesthe iSsuesraised by the CircuitCourt and that no furtheraction on
this is required. t thinkthis would likelyfit in the "Other" block.
Second, in regardto ComplaintNumber89, Mr~mplaints, his first complaintpertained to a case that
was In the processof appealto the BIA. On October5, 20091reviewedthat case in our databaseand was
convinced that it would be inappropriateto intercedein that process. The BIA issued its decision (fourth
attachment)and did not concludethat Judge Mils'was biasedduringthe proceedingsand dismissedthe appeal.
That aspectof his complaintwas merits based. His secondconlplaint was that she had not given adequate
attention to a motionto reopenthat he had filed. The BIA had at the time of his complaintalready decidedthat
issue and dismissedthe appeal(fifth attachment). Judge Mills alsoaddressedthisin her responseand I am
convincedthis complaint is unsubstantiatedand decided so on October30, 2009. The third complaintpertained
to an adjustmentof status application. I directedthecase be set backin ear1ierand itwas completedon
September 11,2009. Judge Millsalso addressedthis in her response. Mr. raised the issueof the
contentiousnessbetweenJudge Mills and Mr. . I have addressedthat beforewith the Chief Counsel
andthe ChiefCounselremoved romcourtroomdutiesfor six monthsbecausehewascausing
issues in cases. I believethat thethree issues raisedwere all addressed-the first and secondwere
decided by the BIAand the third casewas movedup to an earlierdate and completed.Judge Mills Iswell aware
from the Boardreferraland the complaintI referredto her to addressthat her conduct is carefullyscrutinized.
Unlessyou see somethingfurtherthat needsto be done, I believebo1hcomplaintshave been resolved.
from: Smith,Gary(EOIR)
Sent: Friday,October30, 2009 11:10AM
To: MIiis, Miriam (E:0IR)
Subject: RE:DC Memo
Judge (Miriam): Thankyou for carefullyreviewingthese. I will go over what you havesubmitted.
From:Mills,Miriam(EOIR)
Sent: Thursday,October29, 20098:45 PM
To:Smith,Gary(EOIR)
SUbject:RE:DCMemo
6/4/2010
2. .Page Lot,
DearJudge Smith:
Thank you for allowingme to commentand for the extension.
After reviewing the subject through the ROP which included transcript, tapes~ and evidence, it remains
unclear to me the meaning of the 3d Circuit's conclusion that my inquiry was prosecutorial and
inquisitorial and ,therefore, led to a faulty credibility finding, in light of me giving Respondent's counsel
a full opportunity to conduct his direct examination, and even offering to keep the record open at the end
of the hearing for more evidence -- specifically on the nature of the scars, which could have been
supported through medical examination. .
The hearing began almost an hour late; it was in the afternoon after a 45-case morning master, and there
was not just the issue of persecution, but the issues of Respondent's identity, and the timeliness of his
filing - not shown in the ROP documents (no passport, no birth certificate), and not shown after the sole
testimony of Respondent presented at the hearing. With this backdrop, and an unfamiliar Respondent
counsel (only time in my six years that he has appeared before me), I can only surmise that for the sake
of expediency I began the questioning which would aJsolet parties know where the gaps in the evidence
lie.
However, after my inquiry, Respondent counsel was always given the opportunity to question
Respondent further, usually expressly by the Court. And at the conclusion of the hearing, I stated that
the record would be closed unless there was additional evidence to be offered - a swtement made after I
had discussed with Respondent counsel the need for medical documentation to show that Respondent's
head scars were not inconsistent with the manner in which he claimed thatthey had been inflicted - by
sticks or tree branches; and for rebuttal of DHS evidence which disputed Respondent's claim about the
time of his arrival in the US by cargo ship. Respondent counsel declined and decided to rest on the
record.
The governing regulations expressly allow the IJ to ..receive and adduce material and relevant
evidence." 8 C..F.R. 1240.33 (b) (2005), 1240.32 (b) (2008). Respondent's head scars were
demonstrative evidence, relevant and material to his claim of a persecutory beating, which could have
influenced a favorable outcome if accompanied by medical docwnentation showing the scarring was
consistent with cuts from tree branches or wood sticks from trees, as Respondent had described the
weapons. I disagree with the 3d Circuit finding that I focused too much on the head wounds and
scarring -to the contrary it was the best evidence that Respondent put forth, in light of the absence of
reliable identity documents showing his relationship to alleged family members forming the basis for
social group based persecution. My continued questioning was to illicit some detail to support his case
as opposed to undermine his credibility as found by the 3d Circuit (p.5); for I could have just left the
lack of evidence as it was and found that Respondent did not corroborate his claim. Fromthe transcript,
it appears that Respondent, without much detail, described a serious wound, but his head showed faint
signs of scarring.
Since it is possible that tree branch cuts to the head may leave a particular type scarring, especially if
there were no stitches, an adequate detailing by Respondent of his medical treatment was material,
because Respondent had provided no expert medical documentation and apparently clidnot intend to
offer such. This is where I was going with my inquiry on Respondent's head wounds andthe treatment.
The 3d Circuit discourse on the scarring, I believe, lends support to the proper focus of my inquiry,
when it engages in speculation about head wowids not being a fleshy part of the body. (fn 1, p.5) and
that stitches are not always appropriate. The resolution of these issues were best left for a medical
expert, but absent such documentation, it was appropriate for the Court to attempt to elicit such details
from Respondent about his wom1ds the treatment when he showed a resultant scar on his head.
Contrary to the 3d Circuit's decision, the availability of medical treatment in Africa, was not an issue at
6/4(2010
3. the hearing. An issue was whetherRespondent's wowidswere stitchedor not since ''very deep"
wowids,not stitched and allowed to heal over a two month period whilebandagedwouJd likelyheal
differently and have a different lookingand textured scaraa opposed to stitchedwounds. Thus,the
contrast betweenRespondent's descriptionof his wounds,albeit not very detailed, and the size and
prominenceof the scarring (two years old at the time of the hearing),wouldproperly be a basis for a
credibilityfinding-that is where the Courtwas goingwith its inquiry.
From my assessmentof the ROPand tapes, wherebyRespondentCounsel,was given a full and
fair opportunity to examinehis client, and to present additionalevidence,afterhaving the benefit of the
Court's expressedconcerns about the issues,I see no basis for the 3d Circuitcharacterizationof my
manner as "prosecutorial."in content or in tone; andno basis for fmdingthat my ..inquisitorial inquiry"
was for the purposeof underminingRespondent's credibility.
Admittedly,it was technically, not the best decisionthat l have rendered,as therewas no
applicablelaw section,perhaps omitted in error, or in the tush of tryingto meet completiongoals. One
might also dispute my reliance on lack of credibilityas opposed to lack of corroborationto deny the
claim sincethis matter was pre-REALID. However,the case law on which I relied was cited, and
appropriate.
complaintby -forwarded b
there was only~e to review Both " ... " .. :,, '
pe y ompJainedhave been completed: the 672 page Motionto Reconside filed
01/06/09was completedon 3/12/09at approximately l0:00 pm, because I was on leave the next day
(my birthday). I believe that I stayed so lateto complete it (despitebeing "lazy'))because I may have
had some wordperfect problemsand lost a draft (not certain ifthis was the case - but it happened);had
a full docketthat day; and the deadline was approachingor may have expired. but not by many days. I
reviewed the submissions, relevant portionson countrybackground,focusing on dates of the articles
and events, and those portions relating to the alleged sociaJgroup, and the generalpopulace,whether
highlightedor not; and of course counsels' briefs. I made a decision whichwas apparently sentout the
followingday.
Regardin it was timely handled~der issued on 9/11/09,after receipt of DHS'
non opposition. Despite representationsby Mr.-that DHS did not oppose,OHS did not respond
until 9/03/09 with its non opposition letter. This matterhad been a sourceof contentionwith Mr.
at an earlier master on I0/06/08,so it was particularlyimportantthat DHS's agreement to the
grant be in writing;my worksheet notes indicated that ajoint motion would be filed. There iiiililia.
evidencethat Mr. ever requestedajoint motion,but insteadproceeded to phone Ms....
legal tech,.aily, starting a few days after filingthe motion, inquiringif the judge signed the
order. Mr. unnecessarilyescalated this matter to headquarters,even thoughOHS had not yet
responded.
Mr_is further disingenuouswhen he ties the continuationof his client's matter with the Court's
tenmnation of a master calendaron that day (if it evenoccurred on that day) becauseMr.
usual combativeconduct wouldnot abate and DHS stated that they had no replacement.
case was alreadyfinished when I aborted the rest of the morning master;his case was contmu
becauseDHS was to lodge a charge; and it is unlikely that he remained in the courtroom.
It is interestinghow Mr.-minimized the level of disruption that day(whichoccurred even during
his case) by describingthe impasse as ..thejudge not feel[ing] · · rward with_....
the Courtroom, [which]happened on manyother occasions.'' ay not have thought much
of the conflict because of the leve] of dramathat he engaged
6/4/2010
4. Page 4 of 5
ActuallyMr- asa TA, wasoftenasdisruptiveandunprofessionalas Mr-His
manneralwaysturned angriJydisrespectfuJ whenthe Court ruledagainsthim- even commgout of his
seat and flailinghis anns. At masters,he attemptedto alwaystakecharge~beginninga co1loquybefore
I even had a chanceto sit down,speaking overme, instructingme whatI neededto dobefore I had a
chanceto openthe ROP>alwayschallengingme.. His disrespectwas so apparentthaton an occasion,a
womanfromthe courtroomapproachedhim while he was seatedat counsel's table,and interruptedone
of his performanceswith a noteshe had scribbled,statingthathe must respectthe lady
judge.
Now itappearsto me from theseunsubstantiatedpersonal attackson me, thatMr. maynotjust
be sexist, but racisttoo - depictingme as lazy.. es inhis complaint. His descriptionof my
court as a ..mysterycourt", Iassumeto be Mr attemptat some humor,but appearstorefer to
my protracted nearly absencein 2008
I was on approved kleaveand I believe on
that, you havethe particulars.
Mr.- accusationthatI "belittleO"parties,I assumerefersto making ajudgment and giving
directionson thepresentationof a caseif it isinadequate. Briefcontinuancesforpreparationof a
decisionareroutine;and if a party willbe unavrulable,I will accommodatethem by rescheduling,
allowing~ appearances;or for themto come and Hstento a taped decision. So I'm unclearto
what J.1r.llllllt referringwhen heaccusesme of makingpartiesrenim in the eveningaftera
morninghearjng. And whileJhave been here untilas late as 8pmto do a decisionafter a hearingwhich
may have endedaround 6pm, it is only when all parties consent~ and this is rare, contrary to Mr .
accusationth · s frequently. In fact, ifl am sucha violatorof whata goodjudge
shoulddo, whydoes Mr not have someconcrete examples? For an attorneywiththe
experienceMr. md it pathetic forhim to base on rumor, innuendo,and lies, a fonnal
complaint abo an .
From:Smith, Gary(EOIR)
sent: Thursday,October22, 2009 12:56PM
To:Mills,Miriam(EOIR)
Subject: RE:UC Memo
I'll extend it untilOctober29th. That shouldhelp. Thanksfor letting.me know.
From:MIiis,Miriam(EOIR)
Sent: Thursday,October22, 2009 12:55 PM
To:Smith,Gary(EOlR)
SUbjec.t:RE:DC Memo
Judge Smith: Is it possiblefor you to give mean extention for my comments,at leastuntil Monday. Myhearing
docket is full todayand tomorrowand I need to preparefor next week'stelevideodetail requiringsome
preparationon laws in otherJurisdictions,as weQas more focus on criminal aspectseffecting relief?
so I have nothad after- wort<hOurstime to spend on this.
havenot hadtime to review yet the ROP which I understandis with- Thankingyou in advancefor your
lime and consideration. IJ Mills
From:Smith, Gary(EOIR)
Sent: Wednesday, October07, 2009 3:55 PM
6/4/2010
5. To: Mills,Miriam(EOIR)
Subject: FW;DCMemo
Importance:High
Dear JudgeMills:
Attachedis a memorandumwith attachmentsrelatingto a case that you heardon October24 and 28,
200Ell•••••••••••nthis case the Third CircuitCourt of Appeals rejectedthe adverse
credibility determinationand remandedthis case, recommending that the BIA remand the case tor a hearing
beforea differentimmigrationjudge. The BIAdid so. The Third Circuit in its decision remandingthe case.
stated: "The prosecutorialmannerof this IJ during lssiaka's hearing and the inquisitorialinquiry that underpins
some of the IJ's reasons for rejecting lssiaka's credibilitycause us to concludethat everyone is betterserved by
havinganother ·pair of eyes' evaluate lssiaka's credibility if the Boardconcludesthat the recordmust be
developedfurther.•
I have reviewedthe matters providedbythe BIA Chairmanand the statusof the case in our database.
Please provideme your commentsregardingthe Third Circuit's characterizationof your conductof the
proceedings,by not later than October23, 2009 . The Recordof Proceedingswill be mailed backto the
Philadelphia Court.
Thanks.
GaryW.Smith
AsalstantChiefImmigrationJudge
1703)305-1247
Post-Script I have also attachedMr. complaint(s)that I providedyou at the Court on September 16th
and would like for you to provide me your commentsregardinghis complainton or beforeOctober23d. Thanks.
6/4/2010
6. J....l.l-'1.l.,).111lUU V .I 11.11 .,).111.IU-Ul.l 111 V1 U-.11 lV .,) .111.IU-Ul.l
time to talk to ACIJs
92 14699 66 E-Mail 8/30/10 Dufresne Keller 9 Banterbetweenemployeesabout
vacation
93-97 (same as 14726- 89 E-mail 6/2/10 Smith Keller 1, 2, 8, 9
pg. 99-103) 30
98 14812 156 E-mail 6/16/09 Burr IJ 1
99-103 (same 14830 157 E-mail 6/2/10 Smith Keller 1, 2, 8, 9
as pg. 93-97) 14832-
34
104 14844 189 E-mail 4/7/07 Bartolomei Neal 9
I05-107 (same 14944- 203 E-mail 2/20/09 Wahowiak Keller I, 2, 9
as p_gs.113-15. 96 -- - --
