Podio v. I.N.S., 97-4254

• Decision Date: 25 August 1998
• Docket Number: No. 97-4254,97-4254
• Citation: 153 F.3d 506
• Parties: Vladimir PODIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 506

153 F.3d 506

Vladimir PODIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-4254.

United States Court of Appeals, Seventh Circuit.

Argued July 7, 1998.

Decided Aug. 25, 1998.

Heidi L. Widell (argued), Azulay & Azulay, Chicago, IL, for Petitioner.

Janet Reno, United States Attorney, Office of the United States Attorney General, Washington, DC; Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL; Holly Gimbel (argued), David M. McConnell, Michele Y.F. Sarko, Kristal A. Marlow, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, ESCHBACH, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

Vladimir Podio is a 42-year-old native and citizen of Ukraine. An immigration judge and the Bureau of Immigration Affairs ("BIA") determined that Podio was ineligible for asylum or withholding of deportation because he had not suffered past persecution and did not have a well-founded fear of future persecution. See 8 U.S.C. §§ 1158, 1253(h). Podio challenges those determinations, arguing that he was persecuted on account of his religion--he has been a Baptist all his life--and that he has a well-founded fear of future persecution for the same reason. Podio also contends that his due process rights were violated during his deportation hearing. Although the record as it stands does not compel us to conclude that Podio is eligible for asylum or withholding of deportation, we find that his deportation hearing did not comport with the requirements of due process. Podio was not allowed to complete his own testimony or to present witnesses to corroborate his testimony. Accordingly, we reverse and remand for further proceedings consistent with this decision.

I.

Podio entered the United States on a tourist visa in 1990 and in 1992 applied for asylum with the Immigration and Naturalization Service ("INS"). The INS has discretion to grant asylum to applicants who qualify as refugees. A "refugee" is a person who is unable or unwilling to return to his country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). In 1995, the INS denied Podio's application and issued an Order to Show Cause. On May 7, 1996, Podio appeared before an immigration judge and admitted deportability but requested asylum, withholding of deportation or, alternatively, voluntary departure.

At his deportation hearing, which was conducted through an interpreter, Podio maintained that he had been persecuted on account of his religious beliefs. Podio testified that his entire family was Baptist and that he had practiced that religion since his childhood; that he was inducted by force into a military construction battalion where he logged timber for two years; that he was falsely accused of various crimes and arrested "many times" merely because he was a Baptist; and that as a consequence of the false accusations he was sentenced to four years in prison and sent to Siberia to serve this term. Podio testified that he suffered a concussion during his years of "persecution" and as a result continues to experience memory lapses. It is not clear whether this alleged injury was received in Siberia or elsewhere. When Podio's attorney attempted to question Podio about the treatment he allegedly received in prison, the immigration judge intervened and admonished that he did not "want to hear anything about what happened in prison."

Podio testified that in 1989 he went into hiding at his parents' house. In 1990, he said, other Baptists helped him obtain tourist papers so he could come to the United States. Podio testified that in 1992, well after his arrival in the United States, he received letters from his wife and parents telling him that the police were looking for him. While at the hearing Podio did not have copies of those letters or other written documentation of his alleged travails, he did propose to corroborate his story through the testimony of his brother and sister. These two individuals were present at the deportation hearing. Apparently at some point after 1991, they had followed Podio to the United States, and both had been granted asylum. But the immigration judge refused to allow them to testify, stating: "I don't care about them. They've got nothing to do with this case."

The immigration judge denied Podio's application for asylum or withholding of deportation but granted him voluntary departure. The judge reasoned that Podio's testimony was "generalized, selfserving and uncorroborated by any credible evidence." Moreover, the judge explained that even if Podio's testimony were considered truthful and even if the events it described amounted to past persecution, all of those events occurred before the breakup of the Soviet Union in 1991. Therefore, in light of new conditions described in the State Department's September 1995 Country Profile on Ukraine, the judge found that there was little likelihood that Podio would be subject to future persecution should he return home.

On appeal to the BIA, Podio argued that the immigration judge had violated his due process rights by systematically cutting short his testimony and by not allowing his brother and sister to take the stand in order to corroborate his testimony. Podio asserted that, if the judge had allowed him to testify regarding his imprisonment in Siberia, he would have testified that he had been tortured. Podio also argued that what little testimony he did succeed in giving at the hearing was itself sufficient for him to qualify for asylum.

The BIA disagreed. The Board conceded that the immigration judge "occasionally became frustrated over a failure on the part of [Podio] to give direct, responsive answers to his attorney's questions," but concluded that the judge's interruptions "appear to have been efforts on his part to keep the testimony focused on the issues in the case." The Board also concluded that Podio had at most been the victim of discrimination during his military service, and that he had failed to set forth a factual basis for his belief that he had been charged with various crimes because he was a Baptist. Similarly, the Board explained that Podio's testimony failed to persuade it that the harshness of the imprisonment in Siberia was not due to some "aggravating factor" in the crime with which Podio had been charged. Finally, the Board pointed to the State Department's view that conditions in Ukraine had shown "major improvements" after 1991, and that evangelicals "are no longer denied religious freedom." Thus, the Board concluded that, even assuming that the judge had "violated some of the respondent's procedural rights," there was no evidence that the violation affected the outcome of the case. Accordingly, the Board dismissed Podio's appeal.

II.

Podio contends that the immigration judge violated his due process rights by denying him the opportunity to testify about pertinent facts and to present evidence in his favor. Because Podio's deportation proceedings began before April 1, 1997, we review them under the statutory provisions as they existed prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act. See Bereza v. INS, 115 F.3d 468, 470 n. 2 (7th Cir.1997). We review the BIA's conclusions of law de novo. See Borca v. INS, 77 F.3d 210, 214 (7th Cir.1996). The BIA's determination that the immigration judge did not violate due process by denying Podio the right to testify about certain facts and by refusing to allow his brother and sister to testify is a conclusion of law. Therefore we review the determination de novo.

We frequently have emphasized that the requirement of due process applies to deportation proceedings. Torres v. INS, 144 F.3d 472, 473 (7th Cir.1998); Chow v. INS, 113 F.3d 659, 667 (7th Cir.1997); see Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."). A deportation hearing "must satisfy currently prevailing norms of fairness." Batanic v. INS, 12 F.3d 662, 666 (7th Cir.1993). Although the Supreme Court has never specifically defined the requirements of due process in a deportation hearing, Congress has set forth minimal procedural requirements including, notably, the reasonable opportunity to examine the evidence and to present witnesses, and a decision based on reasonable, substantial, and probative evidence. Id.; see 8 U.S.C. § 1252(b).

On appeal, the INS admits that the immigration judge did not allow Podio's siblings to testify, and concedes that he may have "interrupted" Podio's testimony. The INS argues, however, that there are other reasons why the record does not support Podio's claim that he was persecuted and has a well-founded fear of persecution. According to the INS, Podio's answers at his deportation hearing were not always "straightforward," and the events he described would not, in themselves, demonstrate that he was persecuted or that he has a well-founded fear of persecution. We are troubled by the implication of this argument, for it asks us to disregard Podio's contention that, at his hearing, he was not permitted to present the evidence that he was entitled to present. ¹ We will not marginalize or bracket the requirements of due process in assessing the reasonableness of the immigration judge's decision. The issue we address here is not whether the evidence as it stands supports the result reached by the immigration judge and the BIA. Rather, the issue is whether the original deportation hearing was conducted in a fair enough fashion for one to determine that the BIA's decision was based on reasonable, substantial, and probative evidence.

While "the [i]mmigration [j]udge has broad discretion to control the manner of...