Jacinto v. INS

Decision Date14 March 2000
Docket NumberNo. 98-70321,98-70321
Citation208 F.3d 725
Parties(9th Cir. 2000) NORMA ANTONIA JACINTO AND RONALD GARCIA, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, OPINION Respondent
CourtU.S. Court of Appeals — Ninth Circuit

COUNSEL: Edgardo Quintanilla, Sherman Oaks, California, for the petitioners.

Marshall Tamor Golding, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Before: Myron H. Bright,* Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

BRIGHT, Circuit Judge:

Norma Antonia Jacinto Carrillo ("Jacinto") and her son, Ronald Garcia, are natives and citizens of Guatemala. On behalf of herself and her son, Jacinto1 petitions this court for review of the Board of Immigration Appeals' ("Board") decision denying her application for asylum and withholding of deportation. She also contests the Board's denial of voluntary departure pursuant to section 244(e) of the Immigration and Nationality Act ("Act"). 8 U.S.C. S 1254(e). We have jurisdiction over this petition pursuant to 8 U.S.C.S 1105a(a).

I.

In December, 1994, Jacinto filed an affirmative asylum application with the Immigration and Naturalization Service ("INS"). Therein she alleged that members of the Guatemalan military were persecuting her and her family, including her common-law husband who is a former member of the Guatemalan military. In March, 1995, the INS issued an Order to Show Cause and Notice of Hearing.

Following two hearings, one on August 25, 1995, and the second on January 11, 1996, the Immigration Judge denied Jacinto's application for asylum, withholding of deportation, and voluntary departure. See Admin. R. at 29-30. The Immigration Judge found that Jacinto did not have a well-founded fear of persecution because she could not explain why members of the military were pursuing her and her husband and had not demonstrated a subjective fear of persecution. In addition, the Immigration Judge found that Jacinto's testimony throughout the proceedings was not credible. See Admin. R. at 29-30.

Jacinto appealed the Immigration Judge's decision to the Board arguing that her right to a fair hearing had been denied and that the Immigration Judge erred when he denied her application for asylum. The Board determined that the Immigration Judge did not violate Jacinto's due process rights and that the Immigration Judge properly held that Jacinto had failed to establish a well-founded fear of persecution. The Board also affirmed the Immigration Judge's decision ruling Jacinto ineligible for voluntary departure due to Jacinto's statements that she was unwilling to leave the United States.

Jacinto petitions this court and argues that the Board erred when it failed to find that the Immigration Judge denied her a full and fair hearing by not permitting Jacinto to testify by narration, and otherwise in the manner of conducting the hearing. In addition, Jacinto argues that the Board erred by failing to adequately review the evidence and by failing to find that the Immigration Judge did not adequately seek to qualify Jacinto for voluntary departure.

We reverse and remand on the ground that Jacinto's due process rights were violated.

II.

This court reviews claims of due process violations in deportation proceedings de novo. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994).

The Fifth Amendment guarantees that individuals subject to deportation proceedings receive due process. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999). Due process requires that an alien receive a full and fair hearing. See id. In addition to constitutional protections, there are statutory and regulatory safeguards as well. See Barraza Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir. 1990). For example, individuals in deportation proceedings are entitled to present personal testimony in their behalf. See 8 C.F.R. S 240.10(4) (1999) (respondent has a reasonable opportunity to present evidence in his or her behalf); 8 U.S.C.S 1229a (b)(1) (immigration judge shall receive evidence). When these protections are denied, and such denial results in prejudice, the constitutional guarantee of due process has been denied. See Campos-Sanchez, 164 F.3d at 450; Barraza Rivera, 913 F.2d at 1447. Prejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings. See Campos-Sanchez , 164 F.3d at 450.

The case record consisted of two hearings with different immigration judges presiding at each hearing. At the first hearing, the Immigration Judge, in considering only the case of Ronald Garcia, informed Jacinto that she had a right to have an attorney speak for her son or that she could speak for her son. See Admin. R. at 33-34. The judge did not advise her that either way she could be a witness for him. Similarly, at her second hearing, where her application was to be considered, she was offered a choice between having an attorney and speaking for herself; again, the implication was that she might not be able to speak, i.e., testify, if she selected an attorney to present her arguments. See Admin. R. at 47. The Immigration Judge then told Jacinto that she could present documentary evidence in support of her asylum application and that she could call witnesses in support of her claim. See Admin. R. at 48. The Immigration Judge informed her that the government also might be submitting documentary evidence against her. See id. The Immigration Judge further informed Jacinto that the judge would question her, and counsel for the government would follow with further questioning. See Admin. R. at 48-49.

In our view, this information was incomplete and inadequate to satisfy the "full and fair hearing" requirement. First, the immigration judges inadequately explained the hearings' procedures to Jacinto; neither judge asked, or otherwise determined, whether Jacinto understood the legal procedures, and neither judge explained what Jacinto had to prove in order to establish asylum. Second, the judges failed to explain adequately what Jacinto's various roles could be at the hearing. They did not sufficiently explain that Jacinto could be a witness even if she obtained an attorney. The judges also failed to explain, for example, how the hearing would be conducted if Jacinto chose to represent herself. At no point was Jacinto advised that she could both testify on her own behalf and serve as an advocate by making arguments to the judge and explaining the evidence to him.2 Third, while Jacinto was told that she would be questioned by the judge and counsel for the government, she was not told that she could present her own affirmative testimony in narrative form. From our reading of the record, we conclude that Jacinto did not understand her rights in the hearing procedure.

In addition to receiving an inadequate explanation of her rights, Jacinto was also denied a "reasonable opportunity" to present her evidence. See 8 C.F.R. S 240.10(4) (1999) (providing that alien will have a reasonable opportunity to present evidence). After preliminary matters were dealt with, the judge told Jacinto to take the stand, and immediately commenced his interrogation of her. Next, the judge offered the government the opportunity to cross-examine Jacinto. The government's cross-examination was interspersed with further questioning by the judge. Jacinto was then excused from the stand, after a brief discussion regarding voluntary departure. At no point did the judge ask Jacinto if she wished to offer affirmative testimony while she was testifying, ask her whether she wanted to testify in narrative form, or otherwise afford her an opportunity to present direct testimony. Thus, in addition to not explaining to Jacinto that she had a right to present affirmative testimony, the judge did not provide her with a "reasonable opportunity" to do so.

We begin our discussion with some limited information from the record about the background of Jacinto. The information in the record elicited during the initial questioning indicates that Jacinto, of Guatemalan descent, married at sixteen years of age. She is the mother of four children: two by her first husband, who is now deceased, and two other daughters by her common-law husband, Francisco Javier Lopez, with whom she lives presently in the United States. See Admin. R. at 50-51.

With this background, we examine the transcript to determine whether the proceedings were, in fact, explained to Jacinto to the extent that she could comprehend them, make an appropriate choice regarding counsel and participate, with or without counsel, in developing the record to support the claims of her son and herself.

We start with the initial hearing of August 24, 1995, concerning her son Ronald Garcia.3 At that hearing, the Immigration Judge discussed her son's right to an attorney. The transcript of this matter is reproduced below:

Q. AT [sic] this hearing he has a right to an attorney at his own expense, at his family's expense. You are now being handed a Form I-618 and also a copy of the local legal aid list which contains the names of organizations and attorneys who may be able to help him for little or not [sic] fee. Do you understand all that I've said so far, Ms. Jacinto Car rillo?

A. Yes.

Q. All right. Do you wish the Court to give you additional time to get an attorney to speak for you, rather for your son, in these proceedings, or do you wish to speak for him?

A. Yes.

Q. Which one?

A. The problem is --

Q. Which one? I don't want to hear about the problems, I just want to know whether you want to speak for him or whether you want time to get an attorney to speak for him?

A. I want to speak for him.

Q. All right. At this hearing, your son has cer tain rights, one, to present evidence in his own behalf; two,...

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