Perez Lastor v. INS

• Decision Date: 31 March 2000
• Docket Number: PEREZ-LASTO,P,No. 98-70266,98-70266
• Citation: 208 F.3d 773
• Parties: (9th Cir. 2000) MARTINetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 773

208 F.3d 773 (9th Cir. 2000)

MARTIN PEREZ-LASTOR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70266

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 5, 1999

Decided March 31, 2000

[Copyrighted Material Omitted] COUNSEL: Simon Salinas, Tustin, California, Celia Salinas, Law School Graduate, San Francisco, Californai, for the petitioner.

Mary Jane Candaux (argued) and Francis W. Fraser (brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Before: Harry Pregerson, John T. Noonan, and Diarmuid F. O'Scannlain, Circuit Judges.

PREGERSON, Circuit Judge:

Martin Perez-Lastor petitions this court for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA affirmed an Immigration Judge's ("IJ") determination that Perez-Lastor failed to establish his eligibility for asylum or withholding of deportation because his testimony was not sufficiently consistent, specific, and credible to meet his burden of proof. The BIA also ruled that the quality of the translation provided at the hearing did not violate Perez-Lastor's right to due process. Although the existing record does not compel us to conclude that Perez-Lastor is eligible for asylum or

withholding of deportation, we find that his deportation hearing did not satisfy the requirements of due process. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I

Martin Perez-Lastor is a citizen of Guatemala and Quiche Indian. His native language is Quiche. He entered the United States without inspection on February 20, 1993, and one year later filed an application for asylum. Two of his brothers, Avelino Perez and Tomas Perez Lastor, also reside in the United States and have been granted asylum.

In his asylum application, Perez-Lastor stated that the guerrillas harassed, threatened, and persecuted him and his family on account of political opinion and membership in a social group; that government officials detained and interrogated him, explaining that it was "for [his] own protection" and "routine work due to the guerrilla presence in the zone"; that he and his father were members of the civil defense units and stationed in Laguna Seca, El Quiche; and that his father was killed. In response to a question asking for any additional information relevant to the case, Perez-Lastor stated that he would bring additional information to his interview.

A merits hearing was held on March 11, 1997 at which a Quiche language translator was provided.¹ At the beginning of the hearing, the IJ refused to admit into the record an English language declaration signed by Perez-Lastor. The IJ reached this decision after asking the following questions to PerezLastor:

IJ: Mr. Perez, is this your signature on the declara tion?

PL² Yes.

IJ: Now, here is why I question it. You do not read or write English, do you?

PL: No.

IJ: Well, I'm not surprised nor am I being critical. It's not your native language. But as you can see, sir, your statement is in English. So here's my question. How is it that you, who do not speak English read English or write English -how is it that you were able to sign a declaration on English? How can you sign a declaration when you are not familiar with its contents?

PL: I just don't understand.

IJ: Do you understand what's in this statement in front of you now? Yes or no?

PL: No.

Immediately following this exchange, Perez-Lastor repeated twice that he could "barely understand " the translator. The IJ then instructed Perez-Lastor and the translator to talk off the record to determine whether they spoke the same dialect of Quiche. After this pause, the translator and PerezLastor informed the IJ that Perez-Lastor could understand the translator if the IJ spoke more slowly, enabling the translator to translate more slowly. When the IJ resumed questioning Perez-Lastor, he did not ask him again whether he understood the contents of the declaration.

The declaration that the IJ refused to admit into the record reads:

I was born in Laguna Seca, Municipality of Chiche, province of El Quiche, Guatemala. My family and I are indigenous and I have been victims of discrimi nation and harassment. Problems came for me since I was a child, because the military saw my family as members of the guerrillas. I can remember that I had to live hidden from place to place, and my family and I were discriminated by ladinos because of my origins. We were accused of being members of the guerrillas and wanted by the authorities because they claimed we were criminals. My father was killed by common delinquents in 1979.

Later, my older brother and my family from Laguna Seca to La Costa Escuintla Chontel; from Chontel to the city of Guatemala. I lived with my family in the city of Guatemala for two years and later we had to move to Antigua Guatemala. From Antigua Guate mala to Mazatenango, Suchitepequez, Zacapa, Chiquimula, Puerto Barrios, Bananera, Chimalte nango, Esquipulas. I was never a happy child because I could not have friends due to the fact that their parents called me a son of murderers. People recognized me because my mother wore indigenous clothes. In the other hand, we were victims of the guerrillas because many members of my family were killed. Guerrillas killed my uncles Pablo Xirum, Pedro Salvador Velasquez and his wife. Soldiers wanted to kill my whole family because of the politi cal conflicts in my country and they had thought we were guerrilla members. They took us as revolution aries. The police and members of the civil Defense left many propaganda in many places of Laguna Seca which mentioned that my family and I were members of the E.G.P.³ and threatened us to death.

The Civil Defense and members of the army of Gua temala killed my grandmother, Tomasa Velasquez Tecum. They left her body and the dogs, pigs and other animals ate her body. My great Aunt Xia was killed too, and we cannot recover her body because she was completely devourer by the animals. My aunt Josefa Perez and her husband were killed. She was seven months pregnant, and she was tor turated by the soldiers. Soldiers took out her baby from her stomach. My relatives Diego Perez and his son of eight years of age were killed with machetes and Diego's tongue was cut out as part of the torture.

My other relatives, Pedro Perez and Juan Perez were also killed in Santa Lucia Cotzumalguapa, Escuintla of La Costa Sur. Even though I was a child, I can remember my mother's face crying and imploring God to save my life. There were many years that I had to put up with threats, harassments and discrimi nation that I lived. My family was separated and my brothers fled my country before me. I did not flee the country with them because one of my uncles joined the Civil Defense as protection from the military and the guerrillas and I felt a little safe, but it was impos sible to continue living in my own country. I decided to flee my country and join my brothers because I would like to live in peace without persecutions, harassments, and discriminations. . . . My mother continues living in Guatemala, and she still lives hid den because her life is in danger.

Perez-Lastor did not testify at the hearing about any of his relatives' deaths, except for his father's death. He stated that an uncle was harmed, but that he was not killed. He also stated that the military and civil patrols threatened him and his family and accused them of being guerrillas, but his testimony is confusing and disjointed. He testified that he received a death threat or heard a rumor that he would be killed, but could not remember the precise date and year. He also testified that he was not a member of a political party, a guerrilla group, the army, or a civil defense unit in Guatemala.

II

The Due Process Clause applies to deportation hearings. See Hartooni v. INS, 21 F.3d 336, 339-40 (9th Cir. 1994) (citing Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50 (1950)). Deportation proceedings violate due process if the alien does not receive a "full and fair" hearing and suffers prejudice as a result of the inadequate proceedings. See Acewicz v. INS, 984 F.2d 1056, 1063 (9th Cir. 1993). We review de novo claims of due process violations in deportation proceedings. See Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998). When our review is de novo, we conduct an independent examination of the record. See Saballo-Cortez v. INS, 761 F.2d 1259, 1265 (9th Cir. 1985).⁴ We hold that PerezLastor did not receive due process at his deportation hearing because an incompetent translation prevented him from presenting relevant evidence and caused the BIA to find that his testimony was not credible.

A Competence of the Translation

It is long-settled that a competent translation is fundamental to a full and fair hearing. If an alien does not speak English, deportation proceedings must be translated into a language the alien understands. See Tejada-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980); see also Matter of Thomas, 19 I. & N. Dec. 464, 465 (BIA 1987). Moreover, an incorrect or incomplete translation is the functional equivalent of no translation: the alien must be able to understand the questions posed to him and to communicate his answers to the IJ. See Hartooni, 21 F.3d at 340 (A hearing is not "full and fair" unless the proceedings are "competently translated into a language [the alien] can understand.") (emphasis added); Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984) ("[T]ranslation services must be sufficient to enable the applicant to place his claim before the judge. A hearing is of no value when the alien and the judge are not understood."); Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930) ("The right to a hearing is a vain thing if the alien is not understood. . . . [I]t is...