Kozinski Walks a Mile in IJs’ Shoes … Alone

Looks like Alex Kozinski’s defense of an unlikely underdog is fully under way. Judging by recent statements and a Monday opinion, the Ninth Circuit judge seems intent on calling his appeals court colleagues to task for treating immigration judges like sad whipping boys in opinions overturning their decisions — an attitude that creeps into news stories about the overloaded and under-resourced immigration courts.

“We do not treat other trial judges with such disdain and disrespect, and there is no justification for doing so when immigration judges are involved,? Kozinski wrote Monday in dissent from the opinion written by Judge Stephen Reinhardt, and joined by Judge Marsha Berzon, in Kumar v. Gonzales[subs. req.] Referring to discrepancies in the underlying case of Raj Kumar, Kozinski wrote “It’s no wonder Raj didn’t bother to explain the inconsistencies to the IJ; he must have predicted — accurately, as it turns out — that the Ninth Circuit would do it all for him.?

This comes after Kozinski on Jan. 11 told the Recorder that “Going after immigration judges is very easy, a cheap shot in a sort of way” since “they have no way of talking back, they don’t hang out with any of our friends.” The dissent from Reinhardt’s opinion in the Kumar case — which reversed an immigration judge’s denial of asylum to an Indian man whose claims the immigration court found were not credible — quotes several other dissents, including Kozinski’s own, in lamenting the little credibility the Ninth Circuit grants to immigration judges. In the Kumar case, Kozinski says the majority should not have discounted the immigration judge’s analysis of photo and written evidence to determine the applicant’s credibility.

“My colleagues grumble that an immigration judge shouldn’t pretend to be a “handwriting expert? or a ‘forensic laboratory,’? Kozinski wrote. “But a circuit judge shouldn’t pretend to be an immigration judge. This is yet another tiresome example of the nitpicking we engage in as part of a systematic effort to dismantle the reasons immigration judges give for their decisions,’? he continued, citing his own dissent in another case.

While other judges have occasionally made similar gripes, it seems like Kozinski is in the minority in the Ninth Circuit, where immigration judges are frequently overturned. As Reinhardt argues in a footnote to his Kumar opinion, “When our dissenting colleague quotes eleven separate statements from dissenting opinions, mainly his own, it is not difficult to determine that the law is not on his side.?

— Justin Scheck
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