Saleh v. Pastore

Background

Tarek Youssef Hassan Saleh, proceeding without a lawyer, sued to compel U.S. Citizenship and Immigration Services (USCIS) to decide his pending naturalization application. While the case was pending, USCIS denied that application, and Saleh filed a request for a hearing on that decision. The Government sought dismissal based on mootness and failure to exhaust administrative remedies. The opinion states that the Government’s motion to dismiss was fully briefed, but this order addressed only Saleh’s motion for recusal.

Saleh moved for recusal under 28 U.S.C. §§ 144 and 455. The court understood him to raise four grounds: (1) Judge Failla’s prior service as a federal prosecutor, including work involving terrorism cases, allegedly showed bias against people of Arab ethnicity and the Muslim faith; (2) the court had wrongly denied his request for a hearing under 8 U.S.C. § 1447(b); (3) the court had delayed ruling on the Government’s motion to dismiss and Saleh’s request for summary judgment and had not transferred the case to the Eastern District of New York; and (4) the court had improperly warned that failing to attend his scheduled USCIS hearing could cause additional delays.

Legal standard

Section 455 requires a judge to step aside when her impartiality might reasonably be questioned. It also addresses personal bias and certain prior government involvement in the same proceeding. Section 144 addresses personal bias or prejudice against a plaintiff or in favor of an opposing party. The court applied an objective standard: whether a reasonable, fully informed observer would have significant doubt that justice would be done without recusal.

The court also relied on the rule that adverse judicial rulings, by themselves, ordinarily are not evidence of bias requiring recusal. Judicial comments or rulings can support recusal in unusual circumstances, such as when they show deep-seated favoritism or antagonism that would make fair judgment impossible.

Analysis

The court rejected Saleh’s argument based on Judge Failla’s former prosecutorial work. Although Saleh accurately identified cases in which she had been involved as a prosecutor, he did not provide a basis for inferring her views about people of a particular nationality or faith. The court characterized his assertions as unsupported and noted that she had not been involved in the underlying facts of Saleh’s case.

The court also rejected recusal based on its earlier rulings and case management. It stood by its decision that the requested hearing had been premature while USCIS was reviewing the naturalization application, but said that decision reflected an effort to conserve judicial resources rather than favoritism toward the Government or bias against Saleh. The court further stated that the record did not show inordinate delay: it granted the Government only a one-day extension, held a conference, heard from both sides, and set an expedited briefing schedule at Saleh’s request.

Finally, the court described its warning about the consequences of skipping the USCIS hearing as a statement of fact, not evidence of partiality. The court concluded that none of Saleh’s allegations would cause a reasonable person who knew all the facts to question the court’s impartiality.

Disposition

Judge Katherine Polk Failla denied Saleh’s motion for recusal and directed the Clerk of Court to terminate the motion at docket entry 63. The order did not decide the Government’s pending motion to dismiss or the underlying naturalization dispute.