Unpub. BIA Remand to New IJ

Unpub. BIA Remand to New IJ

"On appeal, the respondent requests a remand for a hearing on the merits of his application for relief and seeks reassignment of his case to a different Immigration Judge due to alleged bias and prejudice on the part of the Immigration Judge [IJ Alan A. Vomacka] below. ... In accordance with the requests of the parties, we will remand the record for further proceedings with respect to the respondent's application for a waiver under section 212(c) of the Act.  While we do not determine whether the Immigration Judge acted improperly in proceedings below, we deem it appropriate, under the totality of the circumstances, to remand this matter to a different Immigration Judge, particularly given that the allegations of bias and prejudice are coupled with concerns raised as to the respondent's mental competency.  Thus, in an abundance of caution, and in order to avoid the potential for any actual or apparent prejudice involving the adjudication of the respondent's application for relief, we will order that further proceedings in this matter be conducted by a different Immigration Judge on remand." - Matter of X-, Oct. 12, 2012.  [Hats off to Brian Wolf!  Senior Partner Kerry Bretz adds: "Basically, this long time LPR who is eligible for 212(c) relief has a long and tortured immigration history including going to the feds twice.  He was unprepared and uncooperative for his final hearing where Brian wanted to put on some evidence of diminished mental capacity.  IJ Vomacka, in his usual rant and superior attitude, belittled Brian, the client and his adult daughter, and pretermitted the 212(c) application.  Brian relied on Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) and despite Vomacka’s controlling style, made a good record for appeal.  The BIA fails to fully acknowledge Vomacka’s misconduct and bias, but states “in the totality of circumstances” and  “in an abundance of caution” it will remand for a 212(c) hearing before a new IJ.  The firm represented the client pro bono.  Our formal complaint with EOIR has been pending since this hearing in June 2011."]

- Brian Wolf