Mendoza Manimbao v. Ashcroft

• Decision Date: 01 August 2002
• Docket Number: No. 00-71329.,00-71329.
• Citation: 329 F.3d 655
• Parties: Juan MENDOZA MANIMBAO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.3d 655

Juan MENDOZA MANIMBAO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 00-71329.

United States Court of Appeals, Ninth Circuit.

Submitted February 5, 2002.^*

Filed August 1, 2002.

Amended May 20, 2003.

Joseph L. Feldun, Korenberg, Abramowitz & Feldun, Encino, CA, for the petitioner.

Cathy Appling, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A70-184-349.

Before: TROTT, THOMAS, and WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Dissent by Judge TROTT.

ORDER AND AMENDED OPINION ORDER

The Opinion and dissent filed August 1, 2002, slip op. 10857, and appearing at 298 F.3d 852 (9th Cir.2002) are AMENDED. The attached Amended Opinion and Dissent shall be filed. The panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

WARDLAW, Circuit Judge.

Juan Mendoza Manimbao, a native and citizen of the Philippines, petitions for review of a final order of deportation issued by the Board of Immigration Appeals ("BIA"), denying his applications for asylum and withholding of deportation under the Immigration and Nationality Act ("INA") sections 208 and 243(h), 8 U.S.C. §§ 1158, 1253(h) (1994), and reinstating a period of voluntary departure. The Immigration Judge ("IJ") failed to make an express credibility finding supported by specific, cogent reasons. Concluding that credibility was the central issue in the case, the BIA substituted itself for the IJ and made its own — adverse — credibility determination. Because, in this case, credibility was the dispositive issue, the BIA erred in (1) failing to remand to the IJ for an express credibility finding, or as a constitutional minimum affording Manimbao due notice that his credibility was at issue and a fair opportunity to respond; and (2) requiring Manimbao to provide corroborative evidence to meet his burden, when, if his testimony were deemed credible, he would have had no obligation to do so.

I. Background

Manimbao entered the United States on June 19, 1992, as a nonimmigrant visitor, with permission to remain until December 18, 1992. On April 11, 1996, the INS issued an Order to Show Cause charging Manimbao with deportability under section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B) (1992), because of his unauthorized presence in the United States.

On August 7, 1996, at deportation proceedings, Manimbao admitted to the factual allegations, conceded his deportability, and applied for asylum, withholding of deportation, and voluntary departure. Manimbao's asylum application stated that sometime in 1978 he joined an organization called the Barangay to assist the government in its campaign against communist rebels, such as the New People's Army ("NPA"). He actively participated in the Barangay's public activities, including taking part in 1983 in the late President Marcos's campaign against communist rebels. The Barangay met with some success, angering the communist rebels. When the NPA learned of the Barangay, it obtained a list of the names of its members. Having found Manimbao on the list, the NPA looted his family's property and killed their farm animals. Later, one night while he was walking with four companions, the group was attacked by heavily armed men. They shot four of his friends, resulting in the death of one, Nick Santos, and injury to the others. Manimbao managed to escape temporarily, but was captured by the armed men and taken to a secluded area where he was interrogated and beaten. The NPA demanded the names of other Barangay members. A neighbor sought help and the military rescued him. The application also stated that if he returned to his home country he would be "killed for sure," as members of the NPA "are still looking for [him]."

At his deportation hearing on January 21, 1997, Manimbao testified through an interpreter that he left the Philippines because the NPA had placed his life in jeopardy due to his membership in the Barangay. He explained that he joined the Barangay, an organization that opposed the NPA, and supported the government, in 1978. In a somewhat confusing colloquy, he stated that "five of us were walking when — when Nick Santos was killed;" four were shot and four escaped. He then stated: "I was the only one not killed or spared." Manimbao surmised the men were members of the NPA because he helped the Barangay and communicated with the military, noting the men asked him "who are the people I was with and if the organization is still alive." He further testified that he had neither informed the attackers that he was a member of the Barangay nor had they asked him. The IJ asked Manimbao to clarify who was killed and how many were injured the night of the attack by armed men. Manimbao clarified his earlier testimony, stating that Santos had been shot along with three other men and that he (Manimbao) was not killed, because the NPA wanted to interrogate him for additional information about the Barangay. Manimbao also stated that the three men, other than Santos, who had been shot survived. Following this incident, the NPA created problems in his town, harassing his family and the businesspeople. Manimbao believes the NPA will harm him if he returns to his country.

The IJ denied Petitioner's applications for asylum and withholding of deportation, but granted voluntary departure. The IJ correctly recognized that the applicant's testimony alone may sustain his burden of establishing eligibility for asylum. The IJ then seized upon seeming inconsistencies in Manimbao's testimony (all of which actually had been clarified and reconciled within the transcript) to decide that Manimbao's testimony alone was not sufficiently detailed, plausible, and complete to meet his burden. The IJ did not, however, find that Manimbao was not credible.

Both the government and the BIA recognized this flaw in the IJ's decision, but attempted nevertheless to circumvent both BIA and Ninth Circuit law governing the standards for credibility determinations by concluding that the IJ had made an "implicit" finding. The BIA acknowledged "that the credibility of [Manimbao's] testimony is central to this case," and found that the IJ "implicitly" determined Manimbao was not credible. It then scoured the record to find support for the adverse credibility decision the IJ had failed to make. Finally, the BIA dismissed Manimbao's petition for failure "to meet his burden of establishing past persecution or a well-founded fear of [future] persecution...." Chairman Paul Wickham Schmidt dissented:

The Immigration Judge did not make a credibility finding that satisfies the standards we set forth in Matter of A-S, 21 I & N Dec. 1106 (BIA 1998). The majority attempts to remedy this defect by making an adverse credibility finding for the first time on appeal. Ninth Circuit law does not permit us to do this. Abovian v. INS, (9th Cir.2000); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999).

Manimbao filed a timely petition for review. He contends that the BIA erred in making an adverse credibility determination for the first time on appeal in violation of his Fifth Amendment right to due process.

II. Standard of Review

"We review credibility findings under a substantial evidence standard." Aguilera-Cota v. United States INS, 914 F.2d 1375, 1381 (9th Cir.1990). Although we accord substantial deference to an IJ's credibility finding, we will do so only if the IJ has made an express credibility finding and has offered a "specific, cogent reason for any stated disbelief." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). "The IJ must not only articulate the basis for a negative credibility finding, but those reasons must be substantial and bear a legitimate nexus to the finding." Aguilera-Cota, 914 F.2d at 1381. "[W]hen the IJ provides specific reasons for the questioning of a witness's credibility, this court may evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible." Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). When the IJ makes implicit credibility observations in passing, however, this does not constitute a credibility finding. See Aguilera-Cota, 914 F.2d at 1383 ("The mere statement that a petitioner is `not entirely credible' is not enough.").

III. Discussion

Petitioner contends that the BIA erred in making an adverse credibility determination for the first time on appeal. Instead of addressing this argument directly, the Government asks us to review the BIA's credibility determination under the substantial evidence standard. We reject the Government's request. In the absence of an express adverse credibility finding by the IJ, the BIA violated Manimbao's right to due process by making an adverse credibility determination without providing him with notice that his credibility was at issue and in what specific respect his credibility was being questioned.

It is beyond debate that, to ensure that the substantive law is administered fairly, the Fifth Amendment provides a right to a "full and fair hearing" in deportation cases. Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999); 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 9.2, at 561 (4th ed.2002); Jack Wasserman, Immigration Law and Practice 217 (3d ed.1979); Michael Scaperlanda, Are We That Far Gone?: Due Process and Secret Deportation Proceedings, 7 Stan. L. & Pol'y Rev. 23, 25 (1996). Therefore, "[w]hen the BIA decides an asylum case `based on an independent, adverse, credibility determination, contrary to...