Mayo v. Ashcroft, 02-2368.

• Decision Date: 27 January 2003
• Docket Number: No. 02-2368.,02-2368.
• Citation: 317 F.3d 867
• Parties: Geronima MAYO, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

317 F.3d 867

Geronima MAYO, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 02-2368.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2002.

Filed: January 27, 2003.

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Richard L. Breitman, argued, Bloomington, MN, for petitioner.

Michael T. Dougherty, U.S. Dept. of Justice, argued, Washington, DC, (Robert D. McCallum, Jr., Richard M. Evans, on the brief), for respondent.

Before WOLLMAN, LAY, and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Geronima Mayo appeals a decision from the Board of Immigration Appeals (BIA) finding that she is not eligible for admission into the United States. The BIA reversed an immigration judge's ruling that found Mayo did not materially misrepresent herself and was thus eligible to enter the country. We hold the BIA did not set forth sufficient grounds for rejecting the immigration judge's credibility determinations. We thus reverse and remand to the BIA for consideration of this matter in accordance with this opinion.

I.

Geronima Mayo is a native of the Philippines. She sought admission to the United States on May 10, 1987. She obtained an immigrant visa and attempted to enter the country as the unmarried daughter of a lawful permanent resident. See 8 U.S.C. § 1152(e)(2) (1988). After arriving in San Francisco, California, the Immigration and Naturalization Service (INS) deferred her entry because an INS agent found pictures suggesting that she was married. Her case was transferred to Minnesota, where she had relatives. While Mayo remained in Minnesota, INS agents conducted an investigation in the Philippines. The INS discovered a marriage application, marriage license, and marriage contract bearing the names of Geronima Mayo and Juan Gamboa.

The INS commenced an exclusion hearing against Mayo on June 16, 1988. Immigration Judge Vinikoor presided over the hearing. Mayo was without counsel and had difficulty speaking English. The INS did not provide a translator at the hearing. The INS claimed Mayo falsely obtained a visa by concealing her marriage to Juan Gamboa in violation of 8 U.S.C. § 1182(a)(19) (1988) and 8 U.S.C. § 1182(a)(20) (1988). Mayo claimed the documents discovered in the Philippines constituted only a proposal of marriage — not an officially certified marriage. Judge Vinikoor did not find Mayo's statements credible and ruled that she had made a material misrepresentation by concealing her marriage. He ordered her excludable from the United States. Thereafter, the INS detained Mayo in jail for twenty-two months.

Mayo appealed Judge Vinikoor's decision to the BIA. She claimed for the first time on appeal that the marriage was void because her marriage ceremony took place before her marriage license was issued. Under Filipino law, this would make the marriage void. The BIA refused to consider this evidence and affirmed Judge Vinikoor's order.

Mayo then obtained counsel who filed a petition for a writ of habeas corpus in the United States District Court for the District of Minnesota. The district court affirmed the BIA but did so on different grounds than what the BIA had held. Mayo then filed a petition for a temporary stay with this court. We granted the stay and released Mayo into the custody of her sister in Brainerd, Minnesota.

Thereafter, this court reversed the district court. See Mayo v. Schiltgen, 921 F.2d 177 (8th Cir.1990). We held that the district court was without authority to affirm the BIA for different reasons than the BIA used. Id. at 180. We also remanded the case to the BIA for a new evidentiary hearing. Id. at 181. We found her initial hearing before Judge Vinikoor deficient because Mayo did not have an attorney or a translator. Id. We also found that the INS violated 8 C.F.R. § 3.30 (1989) because it submitted an investigator's report to the immigration judge without giving Mayo a copy of the report. Id. We remanded the case, taking note that Mayo should be afforded an attorney and a translator at the new hearing. Id.

On May 23, 1991, the BIA ordered a new hearing pursuant to our direction. The hearing took place before Immigration Judge John M. Bryant. Testimony was taken by telephone and in person through the latter part of 1991 and parts of 1992. On May 13, 1993, Judge Bryant issued his decision and found that Mayo should not be deported. He described Mayo's testimony as "straightforward and credible." He determined that Mayo honestly believed that she was not married to Mr. Gamboa, and therefore did not willfully misrepresent her marital status to the BIA. Judge Bryant thus granted Mayo a Section 212(k) waiver of admissibility.

Judge Bryant also ruled that even if a marriage ceremony took place, the ceremony was void because it was performed before the issuance of a marriage license. The INS attempted to prove the validity of the marriage through the testimony of Mayor Valencia. The Mayor claimed that he performed the marriage immediately after issuing a valid marriage license. Judge Bryant did not find the Mayor's testimony credible because the Mayor's statements were inconsistent with his prior affidavit. Accordingly, Judge Bryant did not rely upon any of the Mayor's statements. He instead ruled that the marriage was void because it was performed without a valid marriage license.

The INS appealed Judge Bryant's decision on May 29, 1993. Nine years later, on April 29, 2002, the BIA reversed Judge Bryant's decision. The BIA said that it "need not be so quick to find the applicant credible." The BIA ruled that Mayo had continually and materially misrepresented her marital status to authorities. The BIA also ruled that Mayor Valencia provided Judge Bryant with accurate and credible testimony. On that basis, the BIA declared Mayo had entered into a valid marriage and thus was not eligible for admission into the United States. The BIA reversed Judge Bryant and issued an order excluding Mayo from the United States.

Mayo filed a petition for review in this court on May 29, 2002.

II.

A. Credibility Determinations

We first address the BIA's standard of review over an immigration judge's credibility determinations. Past BIA decisions recognize that the Board "accords deference to the Immigration Judge's findings concerning credibility...." In re A-S-, 21 I. & N. Dec. 1106, 1109 (1998). The BIA bestows such deference even when it reviews a case de novo. Id. The BIA usually does not disturb an immigration judge's credibility finding. In re V-T-S, 21 I. & N. Dec. 792, 798 (1997). It gives the findings "significant weight." Id. See also Paramasamy v. Ashcroft, 295 F.3d 1047, 1050 (9th Cir.2002) (stating "immigration judge's demeanor findings are accorded substantial deferential review"); Rusu v. I.N.S., 296 F.3d 316, 323 (4th Cir.2002) (recognizing that the BIA accords deference to an immigration judge's credibility findings).

The BIA grants deference to an immigration judge's credibility findings because the judge personally observes the petitioner's testimony. In re A-S-, 21 I. & N. Dec. at 1109. The BIA, in contrast, does not hear evidence. Chae Kim Ro v. I.N.S., 670 F.2d 114, 116 (9th Cir.1982). It is well settled that "an immigration judge is in the best position to make credibility findings because he sees the witness as the testimony is given." Hartooni v. I.N.S., 21 F.3d 336, 342 (9th Cir.1994). Accordingly, the BIA is required to have a "legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Id.

In the present case, the BIA began its analysis by citing the proper standard for reviewing credibility determinations. It then rejected Judge Bryant's credibility findings. The BIA gave three reasons for rejecting Judge Bryant's findings. It said: 1) Judge Vinikoor's hearing established Mayo's "continuous misrepresentations to the authorities;" 2) the Eighth Circuit's previous opinion agreed with Judge Vinikoor's credibility determination and ruled that Mayo was not credible; and 3) Judge Bryant qualified his credibility determination by saying that Mayo's "story stretches the truth." We find these reasons do not sufficiently justify the BIA's decision. The BIA overlooked that this court vacated Judge Vinikoor's findings and remanded the case for a new hearing. The BIA failed to give Judge Bryant's findings proper deference.

The BIA's decision exclusively relied upon Judge Vinikoor's original ruling. However, we previously held that Judge Vinikoor's hearing was faulty because it contained a number of procedural defects. We also found that Mayo "proceeded initially without counsel and with a marginal command of the English language." Mayo, 921 F.2d at 181. We noted that "[t]he hearing transcripts are replete with colloquies between Mayo and counsel that illustrate her inability to understand questions or to express herself." Id. We further noted that the INS violated 8 C.F.R. § 3.30 (1989) by submitting an investigator's report to the judge without first revealing it to Mayo. Id. These procedural defects prohibited Mayo from receiving a fair hearing. Accordingly, we remanded the case to the BIA to have a new evidentiary hearing before an immigration judge.

Our opinion emphasized that the new hearing would be analogous to a new trial. We instructed the immigration judge to consider "all aspects of Mayo's eligibility" during the new hearing. Id. at 182. Mayo was to be afforded a translator and counsel to ensure proper communication with authorities. We intended to correct the procedural defects of the first hearing and give Mayo "a fair opportunity to make her case for eligibility." Id.

Judge Bryant made new credibility determinations and did not rely upon any of the evidence from the earlier hearing. Judge Bryant acknowledged his de novo review of the case: "I found and wish to emphasize, that the Eighth Circuit clearly envisioned a de novo `evidentiary...