Rodriguez Galicia v. Gonzales

• Decision Date: 02 September 2005
• Docket Number: No. 04-3138.,No. 03-3868.,03-3868.,04-3138.
• Parties: Maribel RODRIGUEZ GALICIA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

422 F.3d 529

Maribel RODRIGUEZ GALICIA, Petitioner, v. Alberto R. GONZALES,¹ United States Attorney General, Respondent.

No. 03-3868.

No. 04-3138.

United States Court of Appeals, Seventh Circuit.

Argued May 12, 2005.

Decided September 2, 2005.

Daniel W. Smith, Jenner & Block, Thalia L. Myrianthopoulos (argued), United States Court of Appeals, Seventh Circuit, Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Francis W. Fraser (argued), Jennifer J. Keeney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before RIPPLE, ROVNER and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

The Immigration and Naturalization Service ("INS") brought removal proceedings against Maribel Rodriguez Galicia. Ms. Rodriguez applied for asylum and withholding of removal and an Immigration Judge ("IJ") denied her application and the Board of Immigration Appeals ("BIA" or "Board") affirmed. She timely petitioned for review to this court and filed a motion to reopen with the BIA. The BIA denied her motion to reopen and she separately petitioned for review of this denial. For the reasons set forth in the following opinion, we grant her first petition, vacate the decision of the IJ and remand for further proceedings.

I BACKGROUND

A. Facts

Ms. Rodriguez was born in a rural Guatemalan town and later moved to Guatemala City, where she met and married her husband, university student Armando Flores. At the time, the nation was engulfed in a long-running civil war and, according to Ms. Rodriguez, Mr. Flores became sympathetic with one guerrilla group, the Unidad Revolucionaria Nacional Guatemalteca ("URNG"). She claims that Mr. Flores actively supported URNG in several ways: he used a car registered in her name to bring supplies to URNG guerrillas; he attended URNG meetings and distributed pamphlets for the group; and he participated in Huelga de Delores, an annual anti-government demonstration.

On January 21, 1995, Mr. Flores went to register for his university classes with a friend. The two never returned, and Ms. Rodriguez, who was pregnant with the couple's second child, contacted the police. The police had no information about Mr. Flores and told her that she could not file a missing person report until twenty-four hours passed. She and her father-in-law found Mr. Flores' body in a town morgue outside of Guatemala City; according to Ms. Rodriguez, his body had been found with that of his friend in an empty lot near a military base. Both men evidently had been tortured and then shot. A car allegedly registered in Ms. Rodriguez' name was found near the bodies, but she claimed that her registration papers were missing.

A neighbor told Ms. Rodriguez that Guatemalan security agents had come to her home while Ms. Rodriquez was looking for her husband. The neighbor knew that the men were associated with the government because their vehicle bore official license plates, which characteristically began with a "0" and consisted of just two or three numbers. According to Ms. Rodriguez, Guatemalans at the time paid close attention to license plates because they feared government agents. Moreover, she claimed that government agents often would intimidate the families of murdered dissidents; this tactic, she believed, motivated the visit to her home and the later appearance of two unknown men driving an official vehicle at her husband's funeral.

Four days after Mr. Flores' murder, Ms. Rodriguez registered at a clinic under an assumed name and gave birth to their son. Three individuals, again driving an official vehicle, came to the clinic looking for "Maribel de Flores" but were turned away by a nurse. According to Ms. Rodriguez a doctor advised her to leave the clinic for her own safety. Ms. Rodriguez, together with the newborn and a four-year-old child, moved in with her husband's parents, who lived in Guatemala City. Her living arrangements ran contrary to Guatemalan custom— generally a widow will return to the home of her own parents—but Ms. Rodriguez claimed that it was impractical to return to her home town and believed that the government would be less likely to find her if she was living with her in-laws. Nevertheless, she asserts that government agents found her and that she began to receive threatening telephone calls and death threats. She claims that the threats caused anxiety attacks that twice required hospitalization. Eventually, she left the home of her in-laws and moved in with an uncle who lived four hours away.

The uncle sought visas from the United States for Ms. Rodriguez and her children and helped her complete the application process. Soon after, in February 1996, he was kidnapped—by agents driving official vehicles— and murdered after apparently being tortured. She believes that the government murdered him for sheltering her. Ms. Rodriguez and the children left for the United States, entering with valid tourist visas on February 26, 1996. She returned to Guatemala in September 1997 to attend her father's funeral, traveling under an alias and a false passport. She was detained on October 12, 1997 when she attempted to reenter the United States. She told immigration officials that she feared harm if she was returned to Guatemala but falsely claimed that her children lived in Guatemala and that she obtained her passport there. At her credible fear interview nine days later, Ms. Rodriguez claimed to fear returning to Guatemala because her husband had been murdered by the government, though she did not mention his URNG ties and stated that he was not a member of a political party. The interviewer found that she demonstrated a credible fear of persecution upon return and her case was set for hearing before an IJ in Chicago, Illinois.

B. Agency Proceedings

1.

Ms. Rodriguez applied for asylum and alternatively for withholding of removal. She appeared for a hearing on her asylum request on September 28, 1998, which began more than an hour after it was scheduled.² Ms. Rodriguez testified to the facts described above. She claimed that she lied to immigration officials in her first interview "[b]ecause at that time, I was very anguished because I thought that the policeman was just filling out a form so that he could return me to Guatemala, because I did not want them to return me . . . under my true name, because I feared that when I returned there I would be persecuted." A.R.1410.³ She further stated that she did not understand the United States' asylum process; the concept of asylum is foreign to Guatemala. She attributed her denial of her husband's political activities to confusion about whether the URNG was a political party—confusion that remained after the IJ questioned her on the point.

Ms. Rodriguez sought to introduce the testimony of two experts in human rights and Latin America, Professors Daniel Rothenberg and Douglas Cassel; in addition, prior to the hearing Ms. Rodriguez entered an affidavit from Professor Rothenberg, but not from Professor Cassel, into evidence. Professor Rothenberg was unavailable to testify in person at the hearing, and Ms. Rodriguez had moved to present his testimony by telephone. The IJ denied her motion at the start of the hearing, stating simply, "No, I'm not going to hear any telephonic testimony, all right? We're going to start with the respondent now." A.R.1343. The IJ held Ms. Rodriguez to a strict time limit in presenting her evidence. As her direct examination neared its conclusion, the IJ asked her counsel:

Q: Anything further of this witness, counsel? You do have a time limit, unfortunately, and if you wish the Government to cross-examine, and you have a witness to present, I would suggest that you wrap it up.

A: Certainly, if I may just ask a few more questions.

Q: You may take as much time as you wish, but there's going to be a time that I'm going to pass the witness. If I have no time for your expert, that will be it. All right. I will not reset the case today. All right. So, you have a certain amount of time that you can present your case.

A.R.1395-96.

Ms. Rodriguez testified for approximately one hour. True to his prediction, the IJ commented that "time has evaporated" and refused to allow Professor Cassel's testimony, instead instructing Ms. Rodriguez to "make an offer of proof as to [her] expert witness if he were to testify . . . to preserve it for the record." A.R.1423. Ms. Rodriguez made an offer of proof for both Professors Rothenberg and Cassel. According to Ms. Rodriguez, Professor Rothenberg would testify that Mr. Flores' killing was consistent with and could only be the work of Guatemalan security forces, whose tactics often included the continuing intimidation of a murdered dissident's widow. Professor Cassel's proposed testimony mirrored Professor Rothenberg's and also indicated that university students like Mr. Flores were under particular scrutiny by the security forces. Both experts would testify that the practices that Ms. Rodriguez claimed to fear continued despite recent changes in the Guatemalan government.

The IJ denied Ms. Rodriguez' petition for asylum and withholding of removal after first determining that Ms. Rodriguez was not a credible witness because she failed adequately to explain discrepancies in her accounts. For instance, the IJ determined that Mr. Flores was not an active URNG sympathizer; Ms. Rodriguez had denied his political activities during the credible fear interview and the IJ found that her testimony about his activities at the hearing was an attempt to "`embellish' her story." A.R.1307. The IJ similarly found it suspicious that, in the same interview, Ms. Rodriguez had denied her husband's participation in Huelga de Dolores, and noted that she "lack[ed] familiarity with the URNG, including the fact that she referred to it as the URM G during the hearing." A.R.1308. Moreover, the IJ found it "deeply...