Medina v. Gonzales

• Decision Date: 14 April 2005
• Docket Number: Docket No. 02-4896.
• Citation: 404 F.3d 628
• Parties: Teresa M. MEDINA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

404 F.3d 628

Teresa M. MEDINA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States,¹ Respondent.

Docket No. 02-4896.

United States Court of Appeals, Second Circuit.

Argued: February 24, 2005.

Decided: April 14, 2005.

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Appearing for Petitioner: Stanley H. Wallenstein (Alan Michael Strauss, of counsel), Law Office of Stanley H. Wallenstein, New York, NY.

Appearing for Respondent: Andrew M. McNeela, Assistant United States Attorney (James L. Cott, Assistant United States Attorney, of counsel) for David N. Kelley, United States Attorney for the Southern District of New York.

Before: LEVAL, CABRANES, KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

The central question presented by this petition is whether false oral statements made under oath during an asylum interview can constitute "false testimony" within the meaning of 8 U.S.C. § 1101(f)(6). Because we find that Congress did not directly speak to this issue in the Immigration and Nationality Act, we consider whether the Board of Immigration Appeals ["BIA"]'s construction is permissible and hold that it is and that, as a result, any alien who makes false oral statements under oath during an asylum interview with the subjective intent of obtaining immigration benefits is per se ineligible for suspension of deportation due to want of "good moral character." Additionally, because we find that substantial evidence supports the determination that the petitioner gave "false testimony" within the meaning of 8 U.S.C. § 1101(f)(6), we DENY the petition for review.

I. BACKGROUND

On September 2, 1993, the petitioner, Teresa M. Medina, filed an application for asylum and withholding of deportation. In a sworn declaration attached to that application, Medina claimed that she was seeking relief because there was a "significant probability" that, if forced to return to her native Philippines, she would "once more be subjected to persecution by the Communist [P]arty of the Philippine/New People's Army (CPP/NPA)." She thereupon described, in elaborate detail, how the CPP/NPA previously persecuted her for refusing to broadcast anti-government, pro-Communist propaganda when she worked as a newscaster with the Eagle Broadcasting Station in Quezon City.

Medina claimed that she first "drew attention" from the CPP/NPA in early 1998, when she was "enjoying a heyday" in her job with Eagle Broadcasting. At that time, Medina alleged, the CPP/NPA attempted to recruit her through "an underground faction," an attempt that left her "extremely agitated." Shortly thereafter, according to Medina, she again came into conflict with the CPP/NPA. In February 1998, two freelance photographers with whom she was acquainted — and who had encouraged her to attend what she later discovered were CPP/NPA recruitment seminars — asked her to read an announcement during her show. Medina at first agreed to take the paper without checking the contents. When she got into the broadcasting booth, however, Medina claimed she was "shocked to discover" that what the photographers had asked her to read was a "report on military abuses, consisting of a tally of political detainees within the quarter, including names and their places of detention." Medina stated that she did not read the announcement because doing so would "get me into trouble."

Medina further stated that after the show, the photographers "furiously attacked me with words for not complying with their demand." She then claimed to have told them that their request was illegal, that complying with it would jeopardize her job, and that she could not "allow the CPP/NPA to turn [her] into a puppet on a string because [she had her own] ideals and beliefs." Thereupon, Medina claimed, the argument became "heated up to the point that the two shook [her] up and threatened [her] of harm [sic] for being arrogant and for misleading them that [she] would join their camp." Medina "begged them" to leave her alone.

After this incident, according to Medina, at the request of certain church elders, she read a "press release" on the air that, inter alia,"disclosed my brush with the CPP/NPA, as well as my stand against their terrorism and banditry." Her candor, Medina claimed, prompted even more harassment from the CPP/NPA, including harassing phone calls and threatening notes, all of which led her to believe she had no choice but to flee and go into hiding. While underground, Medina claimed, the CPP/NPA began visiting and harassing her family, even warning them that, if ever discovered, she would be "shot on sight." This, she alleged, led her to flee to the United States in September 1998.

On April 17, 1996, almost three years after she first filed her asylum application, Medina was interviewed by an asylum officer. During the course of that interview, Medina repeated — under oath — the story of political persecution detailed in the affidavit she had previously filed along with her asylum application. Since, however, the asylum officer deemed her "not credible in material respects" — a quite prescient determination, we might add — he declined to grant Medina asylum, and her case was thereupon referred for a hearing before an immigration judge.

The road to full hearing in the matter was quite rocky. There were numerous adjournments and, more seriously, a substitution of counsel in the wake of the immigration judge's finding that Medina was "the victim of ineffective assistance of counsel" — a finding the immigration judge made because, inter alia, Medina's initial counsel had failed to timely file certain documents. Full hearing on Medina's claim finally took place, however, on April 5, 1999, with Maryna Lansky, Esq. as Medina's new counsel.

On direct examination, Medina testified, inter alia, to her work experience in the Philippines, to her ties to the United States, and to the hardship she and her family would endure if she were deported — all of which testimony was given in support of her suspension of deportation claim.² On cross-examination, however counsel for the INS, Heath A. Bender, Esq., probed Medina on the statements she had initially given in support of her asylum claim. And it quickly became clear that Medina's harrowing story of political persecution was nothing more than that — a story, a total fabrication. Seizing on the fact that Medina testified, on direct examination, to having worked only at the Hyatt Hotel in the Philippines from 1985 to the time she left that country, Bender asked Medina if she had previously submitted an asylum application indicating that she was a newscaster for Eagle Broadcasting during some of that time. Medina largely evaded the question, stating, at one point, "My lawyer did that." Bender then asked whether Medina had signed the statement that described her work for Eagle Broadcasting and whether Medina had understood English at the time she filled that out. Medina answered these questions affirmatively.

Ultimately, Bender elicited an express admission from Medina that the addendum to her original asylum application was completely fabricated:

Q. Ma'am, is this application, this statement, which mostly talks about your career of broadcasting for the Eagle Broadcasting Station for 1987, and the troubles that you had as a result of that job, is that a lie? Is that made up?

A. Yes, it is made up.

Q. And you knew it was made up at the time you submitted this application, didn't you?

A. Yes. Through my lawyer's, according to my lawyer, he said he thought it would be a good thing to put on it.

Q. So, you yourself knew it was false, even though your lawyer told you to do it?

A. Yes.

Bender then elicited a further admission from Medina that she repeated her same "false story" — under oath — to an asylum officer during her asylum interview in April 1996:

Q. Okay. Now, in 1996, three years later, you had an interview with an asylum officer, isn't that true?

A. That's correct. Q. And during that interview, or at the time of that interview, you were sworn to tell the truth before that asylum officer, is that right?

A. Correct.

Q. And did you in fact tell the truth to that asylum officer?

A. Well I told (inaudible) whatever is in the papers that my lawyer coached me to.

Q. So, you told the asylum officer a false story, is that right?

A. Whatever I read.

Q. Well, just answer yes or no. Did you tell him the false story?

A. Yes.

When pressed to explain why she gave false statements to the asylum officer, Medina stated that her attorney at the time, Avelino Halagao, Esq., "told me that this should work for a political asylum status," and she obliged his entreaties to "say whatever is in the papers" because she "just wanted to be able to work here in the United States. And he told me that this would be a good way. I didn't mean to lie."

On February 4, 2000, the immigration judge held that while Medina had satisfied the continuous physical presence and extreme hardship requirements for suspension eligibility, she could not establish that she was a person of good moral character. This was because, the immigration judge explained,

[t]he respondent, in essence, has admitted in testimony before this Court that when she appeared at an asylum interview in 1996, the respondent essentially presented false testimony to an asylum officer. This was sworn testimony that the respondent gave. The respondent explained that at the time of the asylum interview, she testified under oath consistently with information in her asylum application but that the information in her asylum application had been essentially made up by her prior attorney and that she knew that the asylum application contained this false information.

The immigration judge held that, in light of the BIA decision In re R-S-J-, 22 I & N Dec. 863 (BIA 1999) — a decision that interpreted the then-relevant provisions of the Immigration and Nationality Act ("INA" or "Act") — he was compelled to find that Medina...