Colmenar v. INS
| Decision Date | 11 February 2000 |
| Docket Number | No. 98-70422,98-70422 |
| Citation | 210 F.3d 967 |
| Parties | (9th Cir. 2000) GIL ILANO COLMENAR,Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
COUNSEL: Daniel P. Hanlon, Reeves and Hanlon, Pasadena, California, for the petitioner.
Laura A. Smith, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.
Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A70-193-463
Before: Frank J. Magill,2 Michael Daly Hawkins and Sidney R. Thomas, Circuit Judges.
Gil Ilano Colmenar petitions for review of the Board of Immigration Appeals' ("BIA") denial of his application for asylum and withholding of deportation. Colmenar argues that the BIA's decision is not supported by substantial evidence and that he was denied a full and fair hearing before the Immigration Judge ("IJ"). We agree that the IJ denied Colmenar a full and fair hearing and that this prejudiced Colmenar's ability to present evidence in support of his asylum claim. Accordingly, we grant his petition for review and remand to the BIA with instructions to order a new hearing before the IJ.3
Colmenar, a native and citizen of the Philippines, entered the United States in May 1992 and applied for asylum and withholding of deportation several months later. In his application for asylum, Colmenar presented a detailed account of his alleged persecution. He stated that he was working as a dentist for the Armed Forces of the Philippines when a 17-year-old boy came to him for treatment at a dental clinic. Colmenar administered a local anesthetic to the boy, who reacted to the drug and went into shock. Colmenar and the senior dentist revived the boy and sent him home with instructions to return in a week. When the boy did not return, Colmenar assumed that he no longer needed treatment.
Several weeks later, Colmenar received a letter from "very unhappy people." The letter contained a black ribbon, a symbol to Colmenar that it was sent by the New People's Army ("NPA"), and stated that the boy had died several weeks after being treated by Colmenar. The letter also stated that the boy had been the son of a high-ranking NPA leader and that Colmenar would pay "very dearly" for the boy's death. Colmenar reported the letter to the police, who said they would investigate the matter.
Sometime after receiving this letter, Colmenar was walking home from a friend's house when a man on a motorcycle passed by. The man stopped about 20 feet ahead of him and threw a Molotov cocktail that exploded at Colmenar's feet. Colmenar was taken to a hospital, where he underwent surgery to remove the shards from his feet. He stayed in bed for two weeks and was on crutches for two months. Then, fearing for his safety, he moved to Manila to live with an aunt.
One month later, he was walking back from church when he saw two men standing by the gate of his aunt's house, talking and pointing at the gate. This frightened Colmenar so he hid behind a bush and waited for them to leave. Two days later, he saw the same men parked in a jeep in front of the house. The men saw Colmenar, and one of them chased after him. Colmenar's aunt was backing out of the driveway in her car, and when he screamed for help, she rescued him and drove him back to his hometown. His parents then decided that Colmenar should leave the country, so he filed an indefinite leave of absence from his job and departed for the United States.
In his written application, Colmenar also explained why he thought these things had happened to him:
Because I was an intern with the Armed Forces of the Philippines, the NPA believes, and rightfully so, that I am opposed to their movement. While I have never spoken out against the NPA, in my own way, I support the government and resist the communist forces.
When the son of the NPA leader died . . . the NPA feared that because I was with the government that I was planted as an informant and intentionally killed the teenager to help destroy the CPP and the NPA. When I reported the incident to the police, this confirmed their fears that I opposed the NPA. I refused to side with them or be loyal to them, even after threats to my life, by keeping the incident quiet or by placating them with financial donations. I do not want to support the NPA in any way, and my opposition, evidenced by the so-called "murder" of the NPA leader's son, is overt in the eyes of the NPA.
Colmenar's deportation hearing was held on January 24, 1997, before Immigration Judge Jay Segal. At the start of the hearing, his attorney asked for a continuance because Colmenar's wife had applied for an adjustment of status. The IJ denied this request, stating that he wanted to resolve the case that day. He also stated, The IJ then swore in Colmenar as a witness and asked whether everything in his written application was true. When Colmenar replied yes, the IJ turned the questioning over to Colmenar's attorney.
The attorney started with a few preliminary questions and then asked Colmenar why he feared returning to the Philippines. Colmenar briefly described his encounter with the man on the motorcycle. He said he was walking home from a friend's house when the man passed by, stopped about 20 feet away, "took a good look" at Colmenar's face and then threw a Molotov cocktail that exploded at Colmenar's feet. At this point in his testimony, the following exchange occurred between Colmenar, his attorney, and the IJ:
Attorney: And to your knowledge, who was this man?
Colmenar: To my knowledge, it was members of the New People's Army.
Colmenar: Yes, Your Honor.
IJ: What did he say to you?
Colmenar: He said that I would pay for what happened to his son.
IJ: When did he say that, as the blast was going off, or before?
Colmenar: No, Your Honor. It was prior to that incident.
IJ: On that incident, the question was do you know who the man on the motorcycle was?
Colmenar: No, Your Honor.
IJ: All right, thank you.
Go ahead.
Attorney: Who do you think the man on the motorcycle was?
Attorney: Well, we'll establish a foundation then, sir.
What were you doing in the Philippines in 1991?
Colmenar: At that time I was -- I belonged to a group conducting medical and dental missions to people -- well, to indigent people who could not afford such treatment.
Attorney: And what was your position with this group?
Colmenar: I was a voluntary intern conducting various dental treatments.
Attorney: Are you a dentist?
Colmenar: Yes, I am.
Attorney: And prior to this incident, who were you treating?
Attorney: Well, your Honor, if that is your finding, I don't see any purpose in continuing the trial.
Attorney: I believe it is.
IJ: Well, I think -- I find you're wrong.
Attorney: Well, since everything he is prepared to testify to regarding his injuries and who he believes caused the injuries and why is in the application, at this point I will simply qualify my client for voluntary departure.
IJ: Fine, go ahead.
After his attorney qualified Colmenar for voluntary departure, the government attorney asked to question Colmenar. The government attorney asked Colmenar whether he wanted to say anything else that would substantiate his fear of returning to the Philippines. Colmenar asked to speak to his own attorney about the question, but the IJ denied this request. Colmenar hesitated, and the IJ repeated the government's question. Colmenar responded by saying, "Well, first and foremost, Your Honor, with the alleged medical malpractice, . . ." He then attempted to defend his treatment of the 17-year-old patient. The IJ explained that the court was not adjudicating his competence as a doctor and then stated,"But I know you wish to exculpate yourself and make a statement on that, and go ahead." When Colmenar finished defending his treatment, the IJ said, "All right, thank you," and the testimony ended.
The IJ denied Colmenar's request for asylum and withholding of deportation. He found that the attacks against Colmenar were motivated by the death of the 17-year-old boy, not by Colmenar's political opinion. On appeal to the BIA, Colmenar argued that he met the statutory requirements for asylum and that the...
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