Kaur v. Ashcroft

• Decision Date: 12 November 2004
• Docket Number: No. 02-74196.,No. 03-73783.,02-74196.,03-73783.
• Citation: 388 F.3d 734
• Parties: Manjit KAUR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.3d 734

Manjit KAUR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-74196.

No. 03-73783.

United States Court of Appeals, Ninth Circuit.

Submitted October 8, 2004.^*

Filed November 12, 2004.

Jagdip Singh Sekhon and Jagprit Singh Sekhon, Sekhon & Sekhon, San Francisco, CA, for the petitioner.

Douglas E. Ginsburg, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petitions for Review of Orders of the Board of Immigration Appeals. Agency No. A72-176-675.

Before: HALL, BRUNETTI, and GRABER, Circuit Judges.

GRABER, Circuit Judge:

Petitioner Manjit Kaur petitions for review of the Board of Immigration Appeals' (BIA) denial of her application for asylum and withholding of deportation. Kaur argues that the BIA's decision is not supported by substantial evidence and that the immigration judge (IJ) denied her a full and fair hearing because he did not allow a percipient witness, Petitioner's son, to testify in support of her asylum claim. We agree that the IJ denied Kaur a full and fair hearing. Accordingly, we grant the petition for review and remand to the BIA with instructions to order a new hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Manjit Kaur is a Sikh and is a native and citizen of India. She entered the United States on April 6, 1994, and applied for asylum and withholding of deportation several months later. In her application, Petitioner presented a detailed account of her alleged persecution. The application stated that Petitioner participated regularly in political activities, was a senior member of the Sikh Student Federation, and was beaten by police in front of her children.

In 1998, Petitioner had an interview with an immigration official regarding her asylum application. During the interview, Petitioner affirmed the truth of her application. She also supplemented the application with supposed documentation that she had been gang-raped.

Sometime after Petitioner came to the United States, her son Jagdip Singh followed. In 2000, about a year before Petitioner's hearing, Jagdip was granted asylum. His application detailed the persecution that he and his family had suffered in India. Jagdip also pointed out significant discrepancies between his and his mother's applications and stated that his mother would submit an amended declaration to reflect accurately her claim for asylum.

In 2001, shortly before her hearing, Petitioner filed an amended declaration in which she disavowed her original asylum application. She was not, in fact, politically active or a high-ranking Sikh party official, and she had never been beaten in front of her children or gang-raped. The amended declaration described entirely different events constituting alleged persecution, and Petitioner testified in her hearing to the events recounted in the amended declaration.

Petitioner brought her son Jagdip to her hearing so that he could testify, as an eyewitness, to her amended claim of persecution. Before Petitioner gave her testimony, the IJ acknowledged that "the son is here to testify" and asked Jagdip to leave the courtroom until he was called in as a witness.

Petitioner testified to the following facts. Her husband belonged to Akali Dal (Mann), a political party advocating the secession of the Punjab province from India, although Petitioner had never been politically active herself. In 1990, her husband began to shelter militants from the Khalistan Liberation Force, who also desired to establish a Panjabi state, Khalistan. For this activity, he was arrested three times and severely beaten; he eventually fled India for Nepal. After her husband left, police came to Petitioner's home weekly and questioned her about his whereabouts. The police arrested Petitioner twice. The first time, soon after her husband fled, she was detained for one day. During her first detention the police slapped her, verbally abused her by calling her names such as "bitch," "dog," and "Khalistani," and interrogated her about her husband. Petitioner was arrested a second time in March of 1994 and, this time, was detained for two days. She was interrogated, slapped, called names, beaten with sticks, and threatened with death and rape. After her release, Petitioner went into hiding and left India for Canada, later entering the United States.

Petitioner also admitted that she had submitted a false asylum application originally and that she had lied to the asylum officer during the 1998 interview. She explained that she had submitted the false application because she was alone, could not afford a lawyer, and could not understand English, and she testified (through a translator):

I felt very bad that I spoke the lie. I did this [amended] application to show that I was, I am truthful. I knew that it won't be in my favor, but still I wanted to tell the truth. Now my son is with me. What will he think about my lying? And according to the Sikh faith, it tells you that you should only speak the truth.

At the end of Petitioner's testimony, the IJ denied Petitioner's request for asylum and withholding of deportation. He made an adverse credibility finding premised mainly on Petitioner's admitted earlier falsehoods, on the resulting inconsistencies in her claims, on Petitioner's delay in recanting, and on a lack of corroboration. With regard to Jagdip, the IJ said that,

[w]hile her son was available to testify, the Court notes that when the events occurred to [Petitioner's] son, he was age 14, and when the events occurred to [Petitioner] in India, it was in 1994, when[Petitioner's] son was substantially younger. The Court finds that [Petitioner's] son's testimony regarding any evidence which would have happened to [Petitioner] to be weak at best.

The BIA dismissed Petitioner's appeal, relying largely on the reasoning of the IJ and adding that Petitioner's testimony was "confusing, implausible, and inconsistent."

Petitioner timely sought review in this court.

STANDARD OF REVIEW

When the BIA adopts an IJ's decision, but also adds its own reasoning, as occurred here, we review both decisions. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). We review de novo a due process claim. Hartooni v. INS, 21 F.3d 336, 339 (9th Cir.1994).

DISCUSSION

An alien like Manjit Kaur "who faces deportation is entitled to a full and fair hearing of [her] claims and a reasonable opportunity to present evidence on [her] behalf." Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). See also Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir.2003) (holding that a remand is called for when an alien was prevented from reasonably presenting his or her case); 8 U.S.C. § 1229a(b)(4)(B) (providing that an alien has a right to present evidence). As the Supreme Court has explained, the Fifth Amendment's "Due Process Clause applies to all `persons' within the United States, including aliens." Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Indeed, it is an IJ's duty to develop the record fully and fairly. Jacinto v. INS, 208 F.3d 725, 733 (9th Cir.2000).

Petitioner presented her son Jagdip at her asylum hearing as a corroborating witness to testify on her behalf. Rather than allowing Jagdip to testify, however, the IJ made a decision without taking his testimony. Without having placed Jagdip under oath or having questioned him, the IJ reasoned that Jagdip's testimony would not help Petitioner because Jagdip had been only about 8 or 9...