Kheireddine v. Gonzales, 04-2328.

• Citation: 427 F.3d 80
• Decision Date: 25 October 2005
• Docket Number: No. 04-2328.,04-2328.
• Parties: Mohammad Adnan KHEIREDDINE; Hassane Adnan Kheireddine, Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

427 F.3d 80

Mohammad Adnan KHEIREDDINE; Hassane Adnan Kheireddine, Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-2328.

United States Court of Appeals, First Circuit.

Submitted September 14, 2005.

Decided October 25, 2005.

Daniel F. Cashman, Susanna L. Shafer, and Cashman & Lovely, P.C. on brief for petitioners.

Aixa Maldonado-Quiñones, Assistant United States Attorney, and Thomas P. Colantuono, United States Attorney, on brief for respondent.

Before SELYA and LYNCH, Circuit

Judges, and RESTANI,^* Judge.

LYNCH, Circuit Judge.

This petition seeks review of the decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge's (IJ's) decision to deny applications for asylum by two Lebanese brothers ("petitioners"). While the petitioners attack the merits of the denial of asylum on the basis that the IJ made serious errors of law, the most significant claim asserted is that the BIA violated their due process rights by deciding their appeal when a portion of the transcript of the testimony of their expert witness was missing.

The IJ had found the petitioners' claims not to be credible and had noted their failure to provide corroboration for their claims. Petitioners say the missing transcript is material because it contained the expert's opinion as to why they could not reasonably be expected to corroborate their testimony.

If petitioners were correct that they were denied due process by the transcription failure, we would likely not proceed to review the merits of the BIA decision, but would rather remand to the agency. Because the problem of missing portions of transcripts is a recurring one, we set the parameters here for evaluation of such claims.

I.

The evidence at the removal hearing consisted of the testimony of petitioner Hassane Adnan Kheireddine, a brief statement by his brother, petitioner Mohammad Adnan Kheireddine, that he agreed with Hassane's testimony and did not wish to correct it, and the testimony of their expert witness, Professor Dirk Vandewalle of Dartmouth College. The documentary evidence consisted of the applications for asylum, an affidavit by Professor Vanderwalle, and a State Department Country Conditions Report on Lebanon. All of this testimony was recorded and transcribed, save for a portion of the direct and the entire cross-examination of the expert, as well as the closing arguments of both sides. The BIA had before it the incomplete transcript and the remainder of the administrative record.

As to the petitioners' testimony, we give a brief précis. The two brothers entered this country illegally from Mexico on June 30, 2001, and flew to Boston, where they lived until they were apprehended by the INS. They conceded removability but sought asylum, withholding of removal, and relief under the UN Convention Against Torture. They contended that they were former soldiers in the South Lebanon Army (SLA)¹ and, as a result, suffered past persecution at the hands of the Lebanese government and Hezbollah.² They claimed that when the Israeli Army withdrew from South Lebanon in 2000, Hezbollah kidnapped them and held them for a week, during which they were interrogated about their service with the SLA. When Hezbollah turned them over to the Lebanese Army, the brothers went from the frying pan into the fire. The Lebanese Army mistreated them badly, beating and torturing them, and interrogating them about the SLA and its relationship with the Israeli Army. However, when asked whether either he or his brother had needed medical care after any of the incidents of torture and mistreatment, Hassane replied, "Of course, not. That was nothing."

After a month in Lebanese Army custody, petitioners were tried, convicted, and sentenced to six months in jail for certain crimes. The grounds for their conviction in Lebanon are somewhat unclear. Hassane testified that he and his brother were charged with either treason, for their alleged support of Israel through his membership in the SLA, or failure to comply with the Lebanese Army draft laws, or both.

In any case, Hassane testified that Hezbollah felt that the brothers "got off easy" with their six-month sentences given their participation in the SLA. After petitioners were released from jail in January 2001, masked gunmen arrived at their home and manhandled them and other family members. The men kidnapped the petitioners, took them away, and threatened to kill them. Petitioners were beaten before being released. After their release, they returned to work at their father's hardware store. Their father, upset by the incidents just described, arranged for the brothers to leave the country.

The testimony recounted that one week after the brothers fled Lebanon, the remaining family members were interrogated as to the whereabouts of the brothers and threatened that the brothers would be harmed if they were found. When, at the hearing, petitioners' counsel was asked whether this event were referred to in the asylum applications, counsel replied, "I don't think it is, Judge." The asylum applications do both state: "[Hezbollah] have already threatened our father to kill us if we should return." Counsel for the government suggested that this "minor statement" might be construed to be a reference to the interrogation of the family after the brothers fled. The IJ acknowledged that explanation, but rejected it, finding that these events were in fact not mentioned in the applications.

When the IJ asked Hassane why he had not corroborated his testimony (for example, with a letter from his father, who remained, living as normal, in Lebanon) Hassane replied that he did not think he needed it. Hassane had been represented by counsel for over a year. When the IJ inquired of counsel as to the failure to introduce corroborative evidence, counsel replied he was not sure anything was available, and that there might be authentication difficulties. The IJ knew the counsel from an earlier case and recalled that he had been generous in allowing the attorney to submit corroborative evidence in that case.

The IJ found the petitioners had not met their burden as to any of their claims because they were not credible.³ The IJ noted that they had made no effort to buttress their credibility with corroborative evidence. The BIA affirmed and also rejected the petitioners' due process claim based on the missing transcript.

II.

This is the second occasion for this court to deal with a claim arising out of a failure to transcribe a portion of a proceeding before an IJ. See Ibe v. Gonzales, 415 F.3d 142 (1st Cir.2005) (finding no denial of due process where the IJ inadvertently failed to record the testimony of two witnesses). Our review of petitioners' due process claim is de novo. See id. at 144 (citing Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir.1999)).

At least in the context of criminal prosecutions, due process requires a record of the trial proceeding in order to allow meaningful and effective appellate review. See Entsminger v. Iowa, 386 U.S. 748, 752, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967); Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); United States v. Cashwell, 950 F.2d 699, 703 (11th Cir.1992). While this case involves the failure of transcription in an immigration proceeding, the respondent does not deny that the due process principle is the same: due process demands a "reasonably accurate, reasonably complete transcript," or an adequate substitute, to allow for meaningful and adequate appellate review. Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir.1993); see also Marincas v. Lewis, 92 F.3d 195, 203-04 (3d Cir.1996) (holding that "two of the most basic of due process protections" are "a hearing before a neutral immigration judge" and a "complete record of the proceedings").⁴ Absence of such a record of proceedings below hampers the ability of an alien to mount a challenge to the proceedings that were conducted before the IJ. In addition, the lack of such a transcript may foreclose "effective administrative and judicial review." Marincas, 92 F.3d at 203. In McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), for instance, the Court considered the INS's administration of the "special agricultural worker" amnesty program. It found that "because of the lack of recordings or transcripts of... interviews and the inadequate opportunity for [special agricultural worker] applicants to call witnesses or present other evidence on their behalf, the administrative appeals unit of the INS ... and the courts of appeals ... have no complete or meaningful basis upon which to review application determinations." Id. at 496, 111 S.Ct. 888.

The Immigration and Nationality Act (INA) provides that in removal proceedings "a complete record shall be kept of all testimony and evidence produced at the proceeding." 8 U.S.C. § 1229a(b)(4)(C). For removal proceedings, the agency's own regulations provide: "The hearing shall be recorded verbatim except for statements made off the record with the permission of the immigration judge." 8 C.F.R. § 1240.9. Neither the INA nor the regulation speak of transcripts, but in practice, the BIA has generally required transcription of testimony. See Ortiz-Salas, 992 F.2d at 106. The agency, however, appears to have minimal formal procedures for correcting or supplementing inaccurate or incomplete transcripts. See 8 C.F.R. § 1003.1(e)(2) (providing that "a single [BIA] member may adjudicate ... a case where remand is required because of a defective or missing transcript").

In contrast, the Federal Rules of Appellate Procedure supply a detailed provision on how missing or incomplete transcripts are to be handled:

If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The...