Kaur v. Holder

• Decision Date: 01 April 2009
• Docket Number: No. 06-71048.,06-71048.
• Citation: 561 F.3d 957
• Parties: Rajwinder KAUR; Harpal Singh Cheema, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

561 F.3d 957

Rajwinder KAUR; Harpal Singh Cheema, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 06-71048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 21, 2008.

Filed April 1, 2009.

Robert B. Jobe (argued), Arwen A. Swink and Lina Baroudi, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioners.

Christopher C. Fuller, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. A072-484-174, A072-484-175.

Before: JOHN T. NOONAN, M. MARGARET McKEOWN and JOHNNIE B. RAWLINSON, Circuit Judges.

McKEOWN, Circuit Judge:

Harpal Singh Cheema and his wife Rajwinder Kaur appeal from the Board of Immigration Appeals' ("BIA") decision denying Cheema asylum and withholding of deportation¹ and denying Kaur asylum. We dismiss Cheema's appeal as moot. We reverse the BIA's denial of asylum for Kaur and remand for further proceedings.

Kaur found herself in a fundamentally unfair posture on her second trip to the BIA. The Board relied on classified evidence without giving her the barest summary notice required by the regulations, and the Board overrode the Immigration Judge's ("IJ") affirmative credibility finding by sanctioning the IJ's passing, unspecified reference to "lack of candor." These errors go to the heart of the asylum ruling and require a remand to the Board.

BACKGROUND

The petitioners were before this court in Cheema v. Ashcroft, 383 F.3d 848 (9th Cir.2004), which describes the lengthy immigration proceedings involving this couple and the government's allegations that they engaged in terrorist activity. We held that "the Board erred in determining whether Cheema was `a danger to the security of the United States,'" and we remanded for determination under the correct legal standard. Id. at 859. We affirmed denial of Cheema's claim under the Convention Against Torture ("CAT"). Because we were "compelled to conclude that there is no evidence that Kaur engaged in terrorist activity," id., her case was remanded for the Attorney General to exercise his discretion as to her asylum claim. We granted Kaur's petitions for withholding of deportation and relief under CAT.

On remand, the BIA took into account evidence classified as "secret" that was presented to the IJ in the original hearings —evidence that the BIA had set aside in its first decision. The BIA held Cheema to be a danger to the security of the United States and Kaur to be unworthy of a discretionary grant of asylum.

Both Cheema and Kaur petitioned for review. Cheema also filed a petition of habeas corpus in the Northern District of California, challenging his detention by the Department of Homeland Security ("DHS") in various county jails for the past eight years; the petition was granted but, on the government's motion, stayed. In February 2006, Cheema told the IJ that it would be better "to die in a real jail in front of his people" than to continue his confinement in this country. At his request, deferral of removal was terminated and he was deported on April 30, 2006.

In India, Cheema was promptly prosecuted before a Designated Court under the Terrorist and Disruptive Activities Act ("TADA"), the Explosive Substances Act of 1884, and the Explosive Substances Act of 1908 for offenses committed in 1992. He was acquitted of offenses under TADA and the Explosive Substances Act of 1884, but was convicted in 2007 under the Explosive Substances Act of 1908. On appeal, the Supreme Court of India noted that a prosecution in a Designated Court (a species of special tribunal set up under TADA) required the authorization of the Inspector General of Police or the Commissioner of Police. Because the required authorization had not been given, the Designated Court had tried Cheema without jurisdiction. Cheema's conviction was set aside in December 2007. Harpal Singh v. State of Punjab, 1 M.L.J. 875 (India 2008). No further proceedings affecting him in India are known to this court.

ANALYSIS

Cheema. Now that Cheema has been determined to be a danger to the security of the United States and has been deported, the question is whether his claim for withholding of deportation is moot. We agree with the government that we cannot give Cheema any relief with respect to withholding because he has already been deported and he suffers no collateral consequence from the withholding decision. There is simply no live controversy. See Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir.2007) (holding that "for a habeas petition to continue to present a live controversy after the petitioner's release or deportation ... there must be some remaining `collateral consequence' that may be redressed by success on the petition.").

Cheema urges us that he falls under the collateral consequences exception to mootness. See Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (holding that an exception to mootness arises where a petitioner would suffer collateral legal consequences from the challenged ruling). Citing a Third Circuit case, Chong v. INS, Cheema argues that he suffers a collateral consequence of the BIA's denial of his application for withholding: he cannot return to the United States for ten years, a consequence sufficient to keep his case alive. See Chong v. INS, 264 F.3d 378, 385 (3d Cir.2001). Cheema's reliance on Chong, in which the only bar to reentry was the temporal tenyear bar, is flawed. Cheema's inadmissibility to the United States is not a collateral consequence of the BIA's denial of withholding of deportation; rather, it is a collateral consequence of the Board's unchallenged determination under 8 U.S.C. § 1182(a)(3)(B)(i)(I) that Cheema is an alien who engaged in terrorist activities. See Abdala, 488 F.3d at 1064-65 (holding that "a petitioner subject to the collateral consequence of a ten-year bar to reentry did not present a cognizable claim where the petitioner was also permanently barred from reentry on a wholly separate ground"). With the Board's holding as to terrorist activities undisturbed, the alleged collateral consequence of inadmissibility does not arise from the withholding decision. Cheema's case is moot and should be dismissed.

Kaur. Following our remand in 2004, the BIA found that Kaur had not been "completely candid" in her testimony and that she had engaged in conspiracy to commit "immigration fraud." The BIA found these two negative factors outweighed the positive factors favoring the exercise of discretion to grant asylum. We conclude that the BIA abused its discretion on two fronts: (1) by using secret evidence without giving Kaur sufficient notice about the parameters of that evidence to allow her to defend against it; and (2) by holding, in the absence of an adverse credibility finding, that Kaur was not candid.

Kaur's petition comes to us in an unusual posture. When the IJ issued her decision in 1999, she granted relief to Kaur on all of her applications—asylum, withholding of deportation, and withholding of removal under the CAT. The government's appeal to the BIA focused primarily on the allegations regarding terrorist activity, although it mentioned immigration fraud in passing. Specifically, the government's brief to the BIA claimed that since Kaur "admits attempting to smuggle her daughter, Roopi, into the United States, and also admits paying a friend $3,000 to get her nephew into the United States," she should be denied relief even though the IJ found that "the hardships she has already endured and her well-founded fear of future persecution outweigh these negative factors."

In its first decision, dated May 8, 2002, the BIA relied solely on unclassified information and focused exclusively on Kaur's engagement "in terrorist activity since entering the United States" and the fact that she was "a danger to the security of the United States." The BIA made no reference to immigration fraud, and it accepted the IJ's determination that Kaur "was a credible witness."

On appeal to this court, we determined that Kaur had not engaged in terrorist activity, granted her petitions for withholding of deportation and relief under CAT, and remanded for the BIA to exercise its discretion in determining whether to grant asylum to Kaur. Cheema, 383 F.3d at 859-60. The issues of immigration fraud and candor were not before us in the first appeal. Id.

After remand, the BIA issued an unclassified decision and a classified attachment to that decision.² In the unclassified decision, the BIA stated that "as argued by the DHS, the unclassified summary of classified evidence relating to the female applicant states that `reliable confidential sources have reported that Kaur has conspired to engage in alien smuggling; has attempted to obtain fraudulent documents; and has engaged in immigration fraud by conspiring to supply false documents for others.'" This statement, coupled with a reference to lack of candor, was the only basis for denial of asylum, at least as articulated by the BIA.

In this second appeal to our court, in addition to challenging the DHS's weighing of hardship factors, Kaur challenges the proceeding as unfair because of the use of secret evidence and argues that the BIA abused its discretion in finding that she had not been completely candid.

1. Secret Evidence

The regulations governing immigration proceedings permit the use of classified information. See 8 C.F.R. § 1240.33(c)(4) ("The Service counsel for the government may call witnesses and present evidence for the record, including information classified under the applicable Executive Order."). In 1956, the Supreme Court sanctioned the use of confidential or secret information in connection with discretionary decisions in immigration proceedings. Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). The continuing viability of Jay has been disputed, but we do not need to resolve that question here....