Amadou v. Immigration and Naturalization Service

• Decision Date: 13 June 2000
• Docket Number: No. 99-3824,99-3824
• Citation: 226 F.3d 724
• Parties: (6th Cir. 2000) Mamadou Amadou, Petitioner, v. Immigration and Naturalization Service, Respondent. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 724

226 F.3d 724 (6th Cir. 2000)

Mamadou Amadou, Petitioner, v. Immigration and Naturalization Service, Respondent.

No. 99-3824

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 13, 2000

Decided and Filed: September 12, 2000

On Petition for Review of an Order of the Board of Immigration Appeals. No. A73 624 555.

Bryan Scott Hicks, Cincinnati, Ohio, for Petitioner.

Joan E. Smiley, Karen Fletcher Torstenson, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., for Respondent.

Before: JONES, BOGGS, and MOORE, Circuit Judges.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Petitioner Mamadou Amadou challenges the Board of Immigration Appeals' denial of his applications for asylum, withholding of deportation, and voluntary departure. In denying Amadou's applications, the Board upheld the ruling of the immigration judge, who found Amadou not credible because of his alleged inconsistent testimony, dispassionate demeanor, and failure to establish conclusively his identity and citizenship. Amadou asserts that he was prejudiced and denied his due process right to a full and fair hearing because the interpreter was incompetent. For the reasons that follow we REVERSE the Board's decision and REMAND for a rehearing.

I.

Amadou was born in 1965 and claims to be a citizen of Mauritania.¹ He entered the United States on June 13, 1994 at New York City without valid entry documents. On August 15, 1996, Amadou was charged as a deportable alien under § 241(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(A). Amadou applied for asylum on the grounds that he feared persecution if he returned to his native country.

A deportation hearing was conducted on May 6, 1997 with the aid of an interpreter fluent in English and Amadou's native language of Fulani. Although Fulani is a common language in West Africa, it has many dialects. The interpreter, who was from Sierra Leone, spoke a different dialect of Fulani than Amadou. On several occasions during the hearing the interpreter commented that he did not understand what Amadou had said.

Counsel first asked: "Of what country are you a citizen?" to which Amadou responded "Senegal." The question was repeated and reexplained by the interpreter, at which point Amadou indicated that he was a citizen of Mauritania. Amadou then testified that while in Mauritania on May 20, 1989, he and his family were arrested in their native village of Bagodine by government officials or armed police because they are black. They were beaten and shoved into large trucks and transported to open-air concentration camps in M'Bagne. They were held there for fifteen days and then released and expelled from the country. Amadou first claimed he fled to Senegal and lost his identity papers while in transit, but shortly thereafter stated that he lost his papers while Mauritanian officials were loading him onto the truck. Amadou further testified that he resided in Haraforte, Senegal for four years working with farmers. He then moved to Dakar, Senegal and remained there one year before coming to the United States. When asked why he left Senegal, Amadou testified, "I didn't like it there." J.A. at 59. Amadou saved his money and bought a plane ticket to the United States, using a friend's passport to enter and mailing the passport back to the owner. He testified that he had no political ambitions in the United States, Senegal or Mauritania. Amadou's parents still live in the village in Haraforte, which according to him is not a refugee camp. He has had no contact with his parents since his departure from Senegal.

A second witness, Bocoum Hamadi, testified at the hearing that he studied Arabic with Amadou for three years in Mauritania. Hamadi is from Symari, Mauritania, and testified that he met Amadou when he was nineteen. Hamadi could not recall the dates of their Arab tutoring. He also testified that he knew Amadou's mother, father, and brother in Bagodine. Hamadi last saw Amadou in Mauritania in 1987.

Based on the testimony, the immigration judge denied Amadou's application for asylum, concluding that Amadou did not meet the evidentiary burdens of proof and persuasion required for a grant of asylum or withholding of deportation. The judge deemed Amadou not credible, citing several inconsistencies in the testimony. After concluding that Amadou failed to show a level of mistreatment that could be characterized as past persecution or that he would face future persecution if he returned to Mauritania, the judge denied Amadou's asylum application. According to the judge, Amadou's sincerity was doubtful because he demonstrated a limited knowledge and lack of familiarity with the ethnic groups of Mauritania and a readiness to use fraudulent documentation to gain entrance to this country. After determining that Amadou failed to show the clear probability of persecution necessary for a grant of asylum, the judge also denied Amadou's application for withholding of deportation.

Finally, the judge rejected Amadou's application for voluntary departure, instead ordering that he be deported to Senegal. The judge labeled Amadou's conduct "reprehensible,"J.A. at 32, finding that he "had provided false testimony within the parameters of §101(f)(6)" and that Amadou "put together a saga in an attempt to obtain a benefit from the Government from the United States." J.A. at 31.

Amadou appealed the judge's ruling to the Board of Immigration Appeals. The Board, after deferring to the judge's adverse credibility findings, affirmed the decision. The Board was not persuaded by Amadou's assertion that he provided credible testimony at his asylum hearing and that he was prejudiced by the incompetence of the interpreter. The Board also found that Amadou failed to meet his burden of proof to establish his asylum claim because the Mauritanian birth certificate he offered was not properly translated or authenticated. Finally, the Board affirmed the judge's exercise of discretion in denying Amadou's application for voluntary departure, noting that there is no indication in the record that Amadou had the appropriate funds or that he would leave the United States if given the opportunity. The Board subsequently dismissed Amadou's appeal. Having exhausted all administrative remedies, Amadou timely filed a Notice of Appeal requesting this Court's review of the Board's decision.

II.

Amadou argues on appeal that his due process right to a full and fair hearing was violated because the interpreter was incompetent. According to Amadou, the interpreter's difficulty translating the questions and answers prejudiced him by causing the immigration judge and Board to find that he was not credible. We review de novo the Board of Immigration Appeals's legal determinations. See Hamama v. INS, 78 F.3d 233, 235 (6th Cir. 1996).

We find that Amadou was deprived of his due process right to a full and fair hearing because of the incompetence of the interpreter. See Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir. 2000)(alien's deportation proceedings found to violate due process right to "full and fair hearing" because an incompetent translation prevented him from presenting relevant evidence and caused the Board to find that his testimony was not credible); see also Augustin v. Sava, 735 F.2d 32 (2d. Cir. 1984). In Gonzales v. Zurbrick, 45 F.2d 934 (6th Cir. 1930), we held that an alien was not accorded a full and fair opportunity to be heard where, notwithstanding successive substitutions of interpreters because of the alien's failure to understand them, the alien was ordered deported on consideration of the whole record. In that case, a...