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Prominent appeals court judge rips colleagues, immigration courts, backs Chicago cabbie

He’s a Chicago taxi driver who says he found love in Ohio.

But Algerian immigrant Mohamed Bouras’ marriage to an American woman lasted just two years. And an immigration court said he couldn’t prove it wasn’t a sham.

Now, 20 years after Bouras arrived in the U.S., two judges on the U.S. Court of Appeals in Chicago have agreed that the 45-year-old should be booted out of the country and sent back to Algeria — prompting a scathing dissent from one of the nation’s most influential judges.

U.S. Appeals Court Judge Richard Posner slammed both his colleagues on the Seventh Circuit and immigration authorities for their treatment of Bouras, saying they have “confused a failed marriage with a fraudulent one” and are ratifying ”a prime example of administrative incompetence.”

Bouras and his ex-wife, Jennifer Schreiner, say their marriage failed because he wanted children and she didn’t want any more than she already had. Bouras was unable to find work in Ohio after they married in 2006, so spent half his time apart from his wife, working as a cabbie in Chicago, they say.

Citing that evidence, Appeals Court Judges Diane Sykes and David Hamilton agreed with an immigration court judge that “an undocumented alien’s brief marriage to a U.S. citizen, during which the couple spent little or no time together and kept their property and finances separate, raises obvious warning signs for immigration authorities.”

But Posner wrote that ”there is no evidence that the marriage was fraudulent” and added that what “did in” Bouras was the immigration court’s failure to let Schreiner testify for her ex-husband that the marriage was for real.

Schreiner, who had work commitments that prevented her from traveling from Columbus to Chicago on the day of the hearing, could have testified via telephone, or on another day, Posner wrote.

The immigration judge’s decision to prevent her from testifying “appears just to be his personal rule, his display of arbitrary bureaucratic power,” Posner wrote, before quoting from Shakespeare’s ‘Measure for Measure’: “Oh, it is excellent / To have a giant’s strength; but it is tyrannous / To use it like a giant.”

Posner has a national reputation for both his intellectual brilliance and at times, his staggering rudeness. But even by his standards, the opinion constitutes a blistering attack on his colleagues and the immigration courts.

He said he was “disturbed” that Sykes and Hamilton criticized Bouras for waiting too long before trying to delay the critical hearing in his case, telling them, “Bouras is a taxi driver, not a lawyer.”

And in one section of his 18-page dissent, he unfavorably compares U.S. immigration authorities with the English, who he suggests turned a blind eye to a sham marriage of convenience between the gay author W.H. Auden and his lesbian German wife, Erika Mann, because it allowed Mann to leave Nazi Germany.

“They were lucky to marry in England and not in the United States, if one may judge from the attitude displayed by the authorities in this case,” he wrote.

In another, he added that there was “no evidence of such an Audenesque motive” for Bouras’ marriage. “I cannot locate the factual basis for supposing the marriage to have been fraudulent,” he wrote.

“I wouldn’t expect a marriage between an Algerian immigrant who drives a cab in Chicago and an American woman who has a corporate job in another state to have the brightest prospects for success,” he added.

“I cannot understand the eagerness of the Department of Homeland Security to challenge the legitimacy of Bouras’s marriage on such flimsy evidence — an immigrant who has been in the United States for almost 20 years, illegally to be sure (together with millions of other immigrants), yet without engaging in other unlawful activity or failing to earn a modest living by honest labor.”

Though Posner’s dissent does not prevent authorities from now moving to deport Bouras, it may encourage his lawyers to ask for a rehearing of his case before all 11 Seventh Circuit judges.

Neither Bouras’ lawyer nor the government responded to requests for comment Thursday.

Bouras Decision (note — an incorrect reference the Seventh Circuit made to Bouras’ attorney in the below opinion was corrected here).