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6th Cir: Ex-ICE Chief Counsel turned IJ doesn’t have to recuse herself

The U.S. Court of Appeals for the Sixth Circuit turned to the statute regulating recusal by federal judges to determine whether an immigration judge who previously served as ICE Chief Counsel should have recused herself. Shewchun v. Holder, No. 09-3894, slip op. (6th Cir. Sept. 8, 2011) (Boggs, Gilman, and Cook, J.). Judge Gilman wrote the panel’s opinion.

This case involved an individual whose removal proceedings began in 1990 (when they were still called “deportation” proceedings). The immigration judge who most recently presided over his proceedings previously served as chief counsel for the ICE office with jurisdiction over his case. Shewchun, No. 09-3894, slip op. at 4.

Based on the IJ’s former position, Shewchun moved to have the IJ recuse herself from his proceedings. Shewchun, No. 09-3894, slip op. at 4. The IJ denied the motion “because she was not involved in his case as Chief Counsel, she had no knowledge of it, and his claim that she might have had some responsibility over the case was ‘too speculative and broad.’” Shewchun, No. 09-3894, slip op. at 4. The BIA affirmed.

On review the Sixth Circuit turned to the recusal guidelines imposed on federal judges. This statute, 28 U.S.C. § 455(a), provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Shewchun, No. 09-3894, slip op. at 20.

The Sixth Circuit had no difficulty concluding that the IJ’s former position as ICE Chief Counsel does not usually require recusal: “An IJ’s having previously served as Chief Counsel while an alien’s case was pending does not by itself require recusal because the ‘Chief Counsel of a large office is unlikely to play any role in routine decisions of this kind.’” Shewchun, No. 09-3894, slip op. at 20 (quoting Petrov v. Gonzales, 464 F.3d 800, 803 (7th Cir. 2006)).

If recusal is to be deemed necessary, “‘the alien must produce evidence that his case is the rare one in which the head of an office took part in a routine action.’” Shewchun, No. 09-3894, slip op. at 20 (quoting Petrov, 464 F.3d at 803). Here, Shewchun failed to produce any such evidence, the panel explained. Accordingly, recusal was not required.

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