Cinapian v. Holder

• Decision Date: 03 June 2009
• Docket Number: No. 05-72445.,05-72445.
• Citation: 567 F.3d 1067
• Parties: Aghavni CINAPIAN; Norek Cinapian; Akop Cinapian; Gevork Cinapian, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

567 F.3d 1067

Aghavni CINAPIAN; Norek Cinapian; Akop Cinapian; Gevork Cinapian, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-72445.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2009.

Filed June 3, 2009.

Dr. Willie Jordan Curtis, Assistant Dean for Student Affairs and Associate Clinical Professor of Law, and Brooke Mickelson, Maria Mendoza and Victoria Diaz, Law Students, The University of Arizona, James E. Rogers College of Law, Tucson, AZ, for the petitioners.

Brooke M. Maurer and Stephen J. Flynn, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A75-678-173, A75-678-174, A78-015-327, A95-633-719.

Before: MICHAEL DALY HAWKINS, MARSHA S. BERZON and RICHARD R. CLIFTON, Circuit Judges.

HAWKINS, Circuit Judge:

Concluding Petitioners' right to a fair hearing was violated and their asylum applications prejudiced by the government's failure to make the author of an adverse forensic evaluation of Petitioners' documents available for cross-examination or to disclose the existence of the report to Petitioners until the day of their hearing and by the Immigration Judge's ("IJ") insistence on proceeding in the face of those failures, we grant the petition for review.

Factual and Procedural Background

Petitioners are Aghavni Cinapian ("Aghavni"), her husband Norek Cinapian ("Norek"), and their two sons, Akop and Gevork Cinapian (collectively "Petitioners"). They seek review of the decision of the Board of Immigration Appeals ("BIA") affirming the denial of asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

Petitioners testified they are natives and citizens of Iran, ethnic Armenians, and Christians who suffered religious persecution in Iran because they discussed the tenets of the Christian faith with a thirteen-year old Muslim boy, Ali. Ali saw a picture of Jesus Christ in a Bible in Petitioners' home and asked them questions about Christianity, which they answered. Ali apparently discussed the conversation thereafter because, on August 20, 1999, the Iranian police forcibly broke down Petitioners' door and beat and arrested Aghavni and Norek in front of their children, accusing them of "trying to convert this M[u]sl[i]m boy." The police threatened Petitioners, saying "you know what is waiting for you," and grabbed and tore Aghavni's bible.

According to Petitioners' testimony, after being detained and interrogated by the Iranian police for two days, Aghavni and Norek were charged with attempting to convert a Muslim to Christianity. They were released after their cousins posted bond. They then hired a lawyer, who advised them that the charge was "equivalent to killing an Iranian" and punishable by death or a lengthy prison sentence. Fearful for their lives, they arranged for a smuggler to help them cross the border into Turkey. From there, they boarded a plane to Mexico, where they later entered the United States.

Once here, Aghavni submitted an application for asylum, withholding of removal, and protection under the CAT, naming her husband Norek as a derivative applicant. See 8 U.S.C. § 1158(b)(3)(A) ("A spouse or child ... of an alien who is granted asylum under this subsection may ... be granted the same status as the alien if accompanying, or following to join, such alien."). Aghavni's application was referred to the Immigration Court, and removal proceedings were commenced against them.

Meanwhile, Akop and Gevork, who initially stayed behind with relatives in Iran, traveled to Moscow. Using a false passport, Akop joined his parents in the United States approximately two years after they had first arrived. He was followed by Gevork approximately one year later. In an interview with U.S. immigration officials, Akop stated that he was born in Armenia and was a citizen of Armenia. According to his mother, Akop did so because he was afraid they would otherwise return him to Iran. Gevork denies that airport officials questioned him about his citizenship. Later, however, after removal proceedings had been initiated against Gevork, his now-deceased lawyer, Harry Zekian ("Zekian"), admitted to "all the allegations" in the Notice to Appear (which had alleged that Gevork was an Armenian citizen) and stated in a Motion to Change Venue that Gevork "escaped his native country of Armenia." Both Akop and Gevork were charged with removability. Their proceedings were consolidated with their parents', and their claim to relief is derivative of Aghavni's asylum application as well. See 8 U.S.C. § 1158(b)(3)(A).

Aghavni testified that she told Zekian that they were from Tehran, Iran, and that she did not know why Zekian stated that Gevork was from Armenia. Zekian died in a motorcycle accident shortly thereafter and thus could not testify at the hearing whether the admission was based on his conversations with Petitioners or the result of his own mistake.

In support of her application for asylum, Aghavni submitted a Christianity Certificate prepared by an Armenian church in Iran certifying that she had been born in Tehran, Iran and was a member of the Armenian Apostolic Church. She also submitted a photocopy of her birth certificate and an original birth certificate for Akop. The photocopied birth certificate was not suitable for forensic analysis, but the other documents were forwarded by the Department of Homeland Security ("DHS") to a forensic laboratory for analysis.

The forensic reports evaluating Petitioners' documents, disclosed to Petitioners for the first time at their asylum hearing brought the documents' authenticity into question. According to the Forensic Document Examiner, the "letterheads, stamp impressions, authorizing signatures, and most of the body" of the Christianity Certificates "were prepared using color copier technology," but the "individualizing entries are original typewriting." Such "constructed documents" are usually made by copying a master (original and possibly genuine) document and eradicating the main entries and replacing them with other entries. The Forensic Document Examiner concluded that Akop's birth certificate was "counterfeit" because it did "not conform to a comparable genuine specimen and reference material on file in the FDL reference library" and its background design appeared to have been produced using color inkjet technology and a rubber stamp device.

At the hearing, the IJ stated that the government should have provided the DHS forensic reports to Petitioners prior to the hearing, given that they were written several months earlier. However, the IJ made clear that she would not "reset this case" and "cannot and will not give you a continuance." Petitioners' counsel objected to the reports because she "should have had an opportunity to review [them and] to be able to discuss [them] at length with [her] client[s]" and because she had no "opportunity to cross-examine" the author of the reports. Then, faced with the IJ's refusal to continue the hearing to another date, Petitioners' counsel asked that the reports be given "no weight at all."¹ The IJ acknowledged the concern, but admitted the DHS forensic reports while promising to take Petitioners' concerns into consideration in deciding how much weight to give the reports.

When questioned regarding the documents, Aghavni stated she and Norek paid their cousins in Iran to send the documents, did not inspect them carefully, and did not know they were not genuine. The IJ found that Petitioners were not credible, in large part because of "major inconsistencies and problems" related to "where they are from," which she concluded went "to the heart of their claim." The IJ's oral decision extensively discussed Aghavni's responses to questions about the documents' origins and Aghavni's inability to present additional evidence to corroborate that she and her family had lived in Iran. Based on her adverse credibility finding, the IJ held that Aghavni failed to establish the date of her arrival in the United States, and thus that she had not shown that she submitted her asylum application within one year of her arrival as required by 8 U.S.C. § 1158(a)(2)(B). The IJ therefore pretermitted Petitioners' asylum claim as untimely. The IJ then went on to hold that Petitioners also failed to establish their eligibility for withholding of removal and protection under the CAT because they had not credibly "show[n] where they are from." The IJ denied all relief and ordered Petitioners removed "to either Iran or Armenia."

The BIA "adopt[ed] and affirm[ed]" the IJ's denial of asylum, citing Matter of Burbano, 20 I & N Dec. 872, 874 (B.I.A.1994), "on the basis of [Petitioners'] failure to provide clear and convincing evidence that their applications for asylum were timely filed." The BIA also "adopt[ed] and affirm[ed]" the IJ's denial of withholding of removal and CAT protection, specifying that it agreed with the IJ's finding that Petitioners failed to "provide credible testimony and evidence to establish their alienage and thus carry their burden of proof" for either withholding or CAT protection. Petitioners timely appealed.

Scope and Standard of Review

Constitutional due process challenges to immigration decisions are reviewed de novo. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003). Where the BIA cites Matter of Burbano and does not express any disagreement with the IJ's decision, we review the IJ's decision as if it were the BIA's. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc).

Before reaching the merits, we first decide a question of the scope of our jurisdiction. In its Notice To Appear, the government alleged that Aghavni last arrived in the United States on September 26, 1999. Aghavni's asylum application is dated November 9, 1999—less than a year...