21 F.3d 336 (9th Cir. 1994), 92-70613, Hartooni v. I.N.S.

Docket Nº:92-70613.
Citation:21 F.3d 336
Party Name:Maryam HARTOONI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:April 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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21 F.3d 336 (9th Cir. 1994)

Maryam HARTOONI, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70613.

United States Court of Appeals, Ninth Circuit

April 7, 1994

Argued and Submitted March 9, 1994.

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[Copyrighted Material Omitted]

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Ronald S. Sugarman, Beverly Hills, CA, for petitioner.

Karen A. Hunold, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Page 339

Before: PREGERSON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

Opinion by Judge PREGERSON; Dissent by Judge O'SCANNLAIN.

PREGERSON, Circuit Judge:

I. INTRODUCTION

Appellant, Maryam Hartooni, appeals the Board of Immigration Appeals ("Board") decision denying her application for asylum and withholding of deportation. We have jurisdiction under Sec. 106(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a). Ms. Hartooni makes two claims of error. First, she claims that she was denied due process of law because her interpreter was incompetent. Second, she contends that the Board misapplied the criteria for eligibility for asylum to the facts of her case. We affirm on the first issue, and remand to the Board on the second.

II. FACTS

Maryam Hartooni is a citizen of Iran and a practicing Armenian Christian. She accompanied her parents to the United States in August of 1984 after allegedly experiencing several disturbing incidents at the hands of the authorities in Iran. She entered this country on a three-month visitor's visa. Two months later her parents returned to Iran, but she remained behind after submitting an application for asylum.

Her asylum application mentioned no specific instances of persecution. She checked the "No" box in response to question 38 on the application, which asked whether she or anyone in her family had ever been mistreated by the authorities in her home country.

A State Department advisory letter developed in response to her asylum application recommended against asylum. The State Department letter acknowledged that Armenian Christians were presumed to have a well-founded fear of persecution in Iran, but concluded that the presumption did not apply to her case, largely because her parents had returned to Iran and had a business there.

Her asylum application was denied, and in April of 1986 the Immigration and Naturalization Service ("INS") issued an Order to Show Cause why she should not be deported. At her deportation hearing, she conceded deportability and renewed her application for asylum, or in the alternative, for withholding of deportation.

Ms. Hartooni requested the aid of an interpreter for the deportation hearing, and one was provided by the INS. The interpreter appears from the transcript to speak only broken English. In addition, the Immigration Law Judge ("ILJ") reprimanded the interpreter on a few occasions for "explaining" or discussing things in Armenian with Ms. Hartooni rather than simply interpreting.

In an oral decision, immediately after the hearing on February 2, 1987, the ILJ denied Ms. Hartooni's asylum application. The critical portion of the ILJ's decision stated that "[t]he cumulative effect of the respondent's testimony and application ... leads me to conclude that the respondent has not established a credible claim to persecution. The respondent asserts persecution and alleges persecution, but the facts she presents does not lead me to conclude that her claim is valid."

Affirming the ILJ's decision, the Board noted inconsistencies between Hartooni's application and her testimony and held that "the immigration judge found the respondent's testimony not credible and there is substantial evidence to support that determination." AR at 3.

III. DISCUSSION

  1. Competency of the Interpreter.

    Ms. Hartooni claims that she was denied a fair trial because her interpreter gave her advice about what to say instead of directly interpreting her words, and because the interpreter may have substituted the interpreter's answers for those given by Hartooni. We review alleged due process violations in deportation proceedings de novo. Barraza Rivera v. INS, 913 F.2d 1443 (9th Cir.1990).

    A person who faces deportation is entitled under our constitution to a full and

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    fair deportation hearing. Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50, 70 S.Ct. 445, 453-54, 94 L.Ed. 616 (1950). The right of a person facing deportation to participate meaningfully in the deportation proceedings by having them competently translated into a language he or she can understand is fundamental. See Tejeda-Mata v. Immigration and Naturalization Service, 626 F.2d 721 (9th Cir.1980) ("this court and others have repeatedly recognized the importance of an interpreter to the fundamental fairness of ... [a deportation] hearing if the alien cannot speak English fluently"), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982). Accord Matter of Tomas, 19 I & N Dec. 464 (BIA 1987).

    Therefore, we must determine whether Ms. Hartooni's interpreter performed competently, and if not, whether her hearing was prejudiced by that failure. See United States v. Nicholas-Armenta, 763 F.2d 1089 (9th Cir.1985) (due process challenges to deportation proceedings require a showing of prejudice).

    Our review is limited to the administrative record upon which the deportation order is based. 8 U.S.C. Sec. 1105(a)(4). It would have been inappropriate for Hartooni's interpreter to have substituted the interpreter's words for those said by Ms. Hartooni. But we have no evidence properly before us that the interpreter did so.

    Hartooni claims that her brother told her attorney after the hearing that the interpreter attempted to guide her testimony. But Ms. Hartooni's brief to the Board is the only place in the record where her allegation of coaching appears. The record also reveals a few instances wherein the ILJ reprimanded the interpreter for conversing with Hartooni rather than interpreting. But based solely on the record the interpreter appears to have heeded the ILJ's admonishments.

    Even if the interpretation was incompetent, Hartooni must show that the incompetence prejudiced the outcome of her hearing. Barraza Rivera, 913 F.2d at 1448. "We find prejudice where an alien's rights are violated 'in a manner so as potentially to affect the outcome of the proceedings.' " Id. Here Hartooni has alleged that her true words were not spoken by the interpreter, but has not indicated what, if anything, she would have said differently if given a chance. Because there is no evidence in this case of any specific instance where the interpreter is alleged to have erred, we cannot say that the interpretation influenced the outcome of the hearing.

  2. Eligibility for Asylum

    (1) Standard of Review:

    Ms. Hartooni claims that she was improperly denied asylum. We review the Board's decision, rather than that of the ILJ. Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir.1991). The Board, in turn, has the power to review the ILJ's decision de novo, to make its own findings of fact and to determine for itself whether the evidence was sufficient. Id. Nevertheless, the ILJ's credibility findings are entitled to "considerable deference." De Valle v. INS, 901 F.2d 787, 792 (9th Cir.1990).

    We review de novo purely legal questions regarding the requirements of the Immigration and Nationality Act (the "Act"). Abedini v. INS, 971 F.2d 188, 190 (9th Cir.1992). By contrast, factual findings by the Board regarding asylum or withholding of deportation claims are "conclusive" if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. Sec. 1105a(a)(4). We reverse such findings only where the evidence presented by the applicant would compel any reasonable factfinder to reach a contrary result. INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

    1. Statutory Scheme

    The Attorney General has discretion to grant asylum to any applicant who meets the threshold definition of a "refugee." 8 U.S.C. Secs. 1101(a)(42), 1159(a). "Refugee" is statutorily defined as "any person who is outside any country of such person's nationality ... and is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account

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    of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. Sec. 1101(a)(42)(A). The "well-founded fear" requirement has both objective and subjective components. The subjective component may be satisfied by "an applicant's credible testimony that he genuinely fears persecution." Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). The objective component requires "credible, direct, and specific evidence of facts supporting a reasonable belief of fear of persecution." Id. (internal quotation marks omitted). "[C]onditions in the country of origin, its laws, and the experiences of others" are relevant factors in this determination. Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir.1985) (internal quotation marks omitted). In fact, under certain conditions, they can be dispositive. See Hernandez-Ortiz v. INS, 777 F.2d 509, 515-516 n. 3 (9th Cir.1985).

    (3) Evidence of a Well-Founded Fear of Persecution.

    Iran is an Islamic Republic in which "[r]eligion is almost inseparable from government." Country Reports on Human Rights Practices for 1992 1002 (Washington, D.C. GPO, 1993) ("Country Reports"). It is a "major abuser of human rights." Id. at 999. Among those who have been singled...

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