Pronsivakulchai v. Gonzales, 05-2662.

• Decision Date: 29 August 2006
• Docket Number: No. 05-2662.,05-2662.
• Citation: 461 F.3d 903
• Parties: Vatcharee PRONSIVAKULCHAI, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 903

461 F.3d 903

Vatcharee PRONSIVAKULCHAI, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2662.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2006.

Decided August 29, 2006.

Brian E. Neuffer (argued), Matthew J. Sullivan, Winston & Strawn, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, Greg D. Mack, Jonathan F. Potter (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, KANNE, and SYKES, Circuit Judges.

BAUER, Circuit Judge.

Vatcharee Pronsivakulchai, a citizen of Thailand, was arrested in Bangkok in October of 2000 based on a United States warrant for drug trafficking. She spent seven months in a Thai prison and was then extradited to the United States to face trial. Once in United States' custody, Pronsivakulchai assisted the Drug Enforcement Administration ("DEA") in a criminal investigation by writing letters to Thai gang members she had met in prison as well as other known gang members from her hometown, Ranong. At the direction of a DEA agent, her letters falsely stated that she had won her case, she was out of jail, and she was interested in buying narcotics. Maintaining her innocence to the charges against her, Pronsivakulchai refused a plea deal with the government but agreed to assist them in their investigation. On the day she was to stand trial, March 15, 2004, the government moved to dismiss the charges against her. The government now seeks to deport Pronsivakulchai back to Thailand.

Pronsivakulchai filed applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). She testified that if she is returned to Thailand, she will be killed by the gang members that she contacted while serving as an informant for the DEA. At the immigration hearing, the government argued that Pronsivakulchai was ineligible for asylum and withholding of removal because they had reason to believe she had committed a crime in Thailand. Agreeing with the government, the Immigration Judge ("IJ") denied Pronsivakulchai's application. The IJ concluded that there was reason to believe that Pronsivakulchai had committed a non-political crime outside of the United States, which would make her ineligible for asylum or withholding of removal. The BIA affirmed and adopted the IJ's opinion. On appeal, Pronsivakulchai argues that the IJ denied her due process because, among other reasons, she was not afforded a reasonable opportunity to present evidence on her behalf and rebut the government's evidence that she had committed a drug trafficking crime in Thailand. She further argues that the IJ erred in finding that she did not qualify for CAT protection. We agree that Pronsivakulchai was denied a fair hearing, and since Pronsivakulchai was not afforded a reasonable opportunity to present evidence on her behalf, we are unable to make a determination as to her eligibility for CAT protection. Thus, we grant her petition for review, vacate the BIA's decision, and remand for further proceedings.

I. Background

On April 11, 2000, a United States Magistrate Judge issued a warrant for Pronsivakulchai's arrest. In October of 2000, Pronsivakulchai was arrested in Thailand based on the warrant issued in the United States. She was then incarcerated at Lad Yao prison in Bangkok for seven months until she was extradited to the United States. While she was detained at Lad Yao, she witnessed rampant corruption, such as open narcotics trafficking and guards forcing inmates to pay for their food or for places to sleep. The prison guards also beat her.

On May 7, 2001, she first appeared in a United States District Court for the charges against her. Here, the prosecutors and the DEA contacted her about assisting with a drug trafficking investigation in Thailand. DEA Agent Kirk Meyer asked Pronsivakulchai to write letters to various people she had met in prison whom the DEA believed to be drug traffickers. Pronsivakulchai agreed when the prosecutors and the DEA told her that if she cooperated, they would help her with her case.

Pronsivakulchai wrote in the letters that she had won her case in the United States and offered to buy drugs from these individuals in exchange for cash payments, which the prisoners could use to bribe their way out of Lad Yao. Pronsivakulchai prepared the letters and sent them to Agent Meyer. He in turn sent the letters on to the targeted individuals imprisoned in Thailand.

Agent Meyer then told Pronsivakulchai that he needed her assistance in gathering more information for the investigation. Pronsivakulchai agreed and asked her sister, who was still in Thailand, to help gather more information on the drug traffickers. She testified that in her hometown, many drug traffickers could be identified by real estate and other luxury items they owned. Pronsivakulchai's sister collected the addresses of the homes where it appeared the drug traffickers lived. Pronsivakulchai then wrote similar letters to these individuals.

Specifically, Pronsivakulchai wrote a letter to Siang Yoksap. She knew that Yoksap was involved in illegal activity because Yoksap had previously attempted to sell Pronsivakulchai "protection." Yoksap was a member of the Kon Nakorn gang, and was killed three to four weeks after Pronsivakulchai gave her letters to Agent Meyer to send to Thailand. Shortly after Yoksap's death, "Cheet," a member of the Kan Nakorn gang, came to Pronsivakulchai's sister's home in Ranong looking for Pronsivakulchai. Cheet visited her sister many times to inquire about Pronsivakulchai's whereabouts. Pronsivakulchai believed that these persistent inquiries stemmed from the letters she wrote Yoksap as part of the DEA investigation.

Pronsivakulchai applied for asylum because she believes she will be killed by the individuals she "informed on," specifically the Thai gangs or drug dealers. She explained that there is rampant corruption in Thailand and the gangs and police often share information and work in conjunction with one another. Since the gangs operate both in and outside of prison, Pronsivakulchai believes that she will likely be killed whether or not she is in prison.

In January of 2004, the prosecutor offered Pronsivakulchai a plea deal. She refused to take it because she maintained her innocence. On the day Pronsivakulchai's case was set for trial, the government moved to dismiss the case against her. After spending three and a half years in jail in both Thailand and the United States without being tried for a crime, Pronsivakulchai was turned over to the Department of Homeland Security.

On May 27, 2004, Pronsivakulchai had a master calendar hearing in immigration court. The government argued that Pronsivakulchai was ineligible for asylum because, they claimed, she was a drug trafficker in Thailand. As evidence, the government submitted a partial and uncertified translation of a Thai warrant. The IJ gave the government another opportunity to obtain a certified translation of the Thai warrant. The IJ also asked for all the documents related to the dismissed criminal case and wanted a DEA agent to testify regarding Pronsivakulchai's help with the DEA's investigation.

The next master calendar hearing took place on July 22, 2004, and for reasons that are not clear to us, the record contains no transcript of this hearing.¹ What we can conclude from the record is that the IJ admitted the translated Thai arrest warrant over Pronsivakulchai's objection. The Thai warrant, which was issued on April 21, 2000, by a police lieutenant colonel, states that it is for the arrest of "Mrs. VATCHAREE whose last name is unknown." Pronsivakulchai said she had never seen the Thai warrant until it was entered as an exhibit in the immigration proceedings against her. Since there is no transcript of this hearing in the record, it is unclear if the government complied with the IJ's request to turn over all the documents against Pronsivakulchai in the United States' dismissed criminal case. It is also unclear from the record whether the DEA agent ever testified regarding Pronsivakulchai's assistance in the drug trafficking investigation.

Pronsivakulchai finally had a merits hearing on her application for asylum, withholding of removal, and protection under CAT, on August 11, 2004. Because it was her first merits hearing, Pronsivakulchai thought she could present evidence refuting the Thai warrant and rebutting the government's contention that there was a reason to believe she had committed a non-political crime in Thailand. Pronsivakulchai tried to present this evidence but the IJ refused to consider rebuttal testimony or evidence addressing the government's contention that she was inadmissable under Section 212(a)(2)(c) of the Immigration and Nationality Act ("INA") as someone they believed was trafficking in narcotics, 8 U.S.C. § 1182(a)(2)(C)(I). The IJ made clear that she would not consider testimony addressing Pronsivakulchai's applications for asylum or withholding of removal because she decided that the government had reason to believe that Pronsivakulchai was a drug trafficker, and that foreclosed Pronsivakulchai's eligibility for asylum. To preserve the record, the IJ did allow limited testimony. Pronsivakulchai explicitly denied that she was involved in drug trafficking and testified that she had never bought or sold drugs in Thailand. Pronsivakulchai also testified that she had never been arrested in Thailand other than for the dismissed United States case that led to her extradition and her cooperation with the DEA. Pronsivakulchai also offered several human rights reports, news articles, and affidavits in support of her application.

II. Analysis

A petitioner's claim that the immigration hearing was procedurally insufficient is reviewed de novo. Boyanivskyy v. Gonzales, 450 F.3d 286, 291 (7th Cir.2006). For...