BIAS

AT THE OFFICE, DHS, EOIR

There is no homogeneous gay community.  We are a diverse group and include people from all over the world, having different races, religions, backgrounds, customs, and cultures.  We do not even have a common name for our community – though LGBT ­– which stands for Lesbian, Gay, Bisexual, and Transgender – is the most common term used to describe us.  Our younger generation tends to expand the lettering to include those who self identify as Queer, and Intersex, thus the term LGBTQI.  Some in the community advocate having a singular term – Queer – to describe all within the community notwithstanding concerns over the negative connotations associated with that term.

Most within our community have experienced bias if not outright discrimination and persecution, while growing up in the United States, or most other countries around the world.  Despite our many demographic differences, the past and ongoing discrimination and prejudice we continue to experience serves as the glue that keeps our community together.

Bias

In general, gay people do not express bias or homophobia towards each other.  However, that is not to say that every homophobe or a bigot is a heterosexual.  In fact, as in other minority groups, some of the most venomous anti-gay language comes from self-hating gays who are, for one reason or another, unable to accept themselves for what they are.  And by the same token, some of the adamant defenders of gay civil rights are heterosexuals who understand the ugly nature and makeup of discrimination against not just the gay community but also any minority group.

            When I first started my practice, like all young attorneys, I researched how to best optimize my limited financial resources and expand my client-base.  Though I wasn’t specifically looking for gay-related marketing advice, I was amused to come across brochures and marketing literature put out by various bar associations on how to appeal to a gay clientele. 

            One of the flyers had bullet points of things to do: 

·        Have rainbow-colored flags planted randomly around the office;

·        Include gay literature/magazines in your waiting area;

·        Put the client at ease by talking about your gay friends.

I still chuckle at the thought of people actually going through all of that to attract gay clients.  Let me explain why. 

Would you decorate your office with various depictions of the Star of David if you wanted to appeal to a Jewish clientele?  Or, would you hang an ANC or a Kwanza flag in your office if you wanted to put your African clients at ease?  Even worse, would you talk about your “Jewish” friends or “black” friends during the course of an initial consultation?  Of course, the answers to all of these ought to be a resounding “no.” What the gay community has been seeking for decades is equality.  Their desire to be treated as equals also means that they do not want or need any special recognitions or considerations just because they are gay.

Going back to the marketing flyer example, though well intended, I think it totally missed the mark.  In fact, I would wager that by having all of those things in your office you would be sure to offend at least some of your LGBT clientele.

Bias at the Office

As attorneys, we all adhere to the Code of Professional Responsibility and Ethics, which protects attorney-client privilege.  It is important to recognize that sexual orientation or identity of clients can be part of that privilege. 

Several years ago I was retained by a client who had just fired a very able and seasoned attorney because of an incident he had experienced in his office.  The Client was a transgender individual – post-op –Female to Male (a male individual, who was born a female.)  The Attorney had successfully represented him first in securing a work visa and then in obtaining an approval of a labor certification for him.   

During his last visit to his former Attorney’s office however, the Client noticed – to his dismay – that while he was waiting in the glass conference room there was a parade of office staff, paralegals, and others, walking by and looking at him inquisitively with a subtle smile on their faces. When the Attorney walked in, he too had a smile on his face as the last of the staff members walked by.  The Client asked the Attorney about all the activity. At first, the Attorney tried to explain away the incident. But upon the Client’s persistence as to the reason for the staff’s behavior, the Attorney finally admitted the error on his part and promptly apologized.

Clearly the Attorney made a mistake by disclosing the Client’s former sex to his staff – not for any legal reason, but for pure amusement. 

Bias at the DHS

            Discrimination based on sexual orientation is not permitted under federal law for federal employees.  Yet, we at times encounter a rogue federal employee who brings in his or her prejudices to the work place.  As with any other source of discrimination or intolerance, such behavior is unacceptable.  

            There are certain logical steps that I follow if I suspect that a DHS Officer is exhibiting bias due to my Client’s sexual orientation:

a.       I double-check the facts in my head.

b.      Before making any accusations, I re-examine the incident, either right then or later on, once I have a more clear understanding of what happened;

c.       I ask to speak to the Officer and explain my source of concern.  If I find that the Officer is discounting the incident in any shape or form, I ask to speak to the Supervisor;

d.      Regardless of what I hear from the Supervisor, I submit a written complaint to be included in the employee’s file.

Bias at EOIR

            Though such incidents of bias are not common at EOIR, Immigration Judges are not immune to the illness of bigotry.  If you feel that the IJ has exhibited bias – to the extent that he or she has pre-judged the case before hearing any evidence – there is recourse.  You can file a motion to recuse!

            It is well settled that the right to an impartial judge is a basic component of a full and fair hearing.  This right extends to administrative proceedings as well as court trials and hearings.  See eg., Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464 (1975); Barry v. Bowen, 825 F.2d 1324, 1330 (9^th Cir. 1987); Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1188 (5^th Cir. 1977).  Indeed, the immigration regulations state that the immigration judge “must seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.” 8 C.F.R. § 1003.10(b) referring to 8 C.F.R. §§ 1003.35, 1287.4

A judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  28 U.S.C.A. § 455(a).  See also Canon 3(C)(1) of the American Bar Association Code of Judicial Conduct.  Under this provision, a judge must recuse himself when he has made up his mind prior to hearing the evidence.  Indeed, judges are held to such high standards of impartiality that judge must recuse himself even where there is the appearance that he has made up his mind in advance of the hearing.  See Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7^th Cir. 1985).

            In Webbe v. McGhie Land Title Co., 549 F.2d 1358 (10^th Cir. 1977), the court of appeals ordered the disqualification of a judge, who, without considering the evidence or listening to opposing counsel, granted summary judgment against the defendant.  The court reasoned that the “appearance of impartiality is virtually as important as the fact of impartiality.”  Id. at 1361.  The court concluded that:

“To us there is not a reasonable likelihood that the trial judge in the instant case, having now been reversed for granting summary judgment, could later preside over the trial of this matter in a fair and impartial manner, or, in the event he became the triar of facts, that he could do so with detachment and objectivity.”  Id. at 1361.

            In Southern Pacific Communications v. AT&T, 740 F.2d 980 (D.C. Cir. 1984), the court held that a judge is not subject to disqualification merely because he holds views on law or policy relevant to the disposition of a case.  Id. at 990.  However, “it is also presumed that a judge will not prejudge a case.”  Id. at 991.  The court indicated that a judge who is not fully prepared to hear all of the evidence before reaching a final decision has a mind that is irrevocably closed to persuasion and should be recused.  Id. at 992.

            In The City of Charlottesville, Virginia v. Federal Energy Regulatory Commission, 774 F.2d at 1205 (D.C. Cir. 1985), 475 U.S. 1108, 106 S. Ct. 1515 (198), the court held that improper prejudgment is established when it appears to a disinterested observer that an administrative law judge has in some measure adjudged the facts of a particular case in advance of hearing it.  Id. at 1212.

Conclusion

            We all strive to reach a destination in life where all people are judged and treated by their actions, and not by their immutable characteristics, such as their race or sexual orientation.  Such a journey is long and difficult. Yet, we must stay vigilant and try to stop instances of prejudice and bias when we are a witness to them.  In the words of Harvey Milk, the great advocate for the LGBT civil rights and the first elected gay official in the United States:

“It takes no compromising to give people their rights. It takes no money to respect the individual. It takes no survey to remove repressions."

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