Singh v. I.N.S.

• Decision Date: 15 August 2003
• Docket Number: No. 02-71594.,02-71594.
• Citation: 340 F.3d 802
• Parties: Malkit SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

340 F.3d 802

Malkit SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-71594.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2003.

Filed August 15, 2003.

COPYRIGHT MATERIAL OMITTED

Jonathan M. Kaufman, San Francisco, CA, for the petitioner.

Robert D. McCallum, Richard M. Evans, and Marion E. Guyton, United States 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. A72-020-928.

Before Susan P. Graber, Kim McLane Wardlaw, and Richard R. Clifton, Circuit Judges.

OPINION

WARDLAW, Circuit Judge.

We must decide whether the Board of Immigration Appeals ("BIA") erred in dismissing an appeal when the petitioner dutifully followed all regulations and procedures pertaining to filing his Notice of Appeal, but the BIA itself deprived him of the opportunity to timely file his brief by sending the briefing schedule and transcripts of proceedings to the wrong address.

Although the answer to this question seems self-evident, the Immigration and Naturalization Service ("INS") contends that the BIA's decision, dismissing petitioner's appeal from the denial of asylum solely on adverse credibility grounds, should be affirmed despite the BIA's failure to provide any notice and any opportunity to be heard. Because these minimal due process requirements are clear and fundamental, and petitioner was prejudiced by an adverse credibility determination unsupported by substantial evidence, we grant the petition.

I.

Malkit Singh provides a credible account of persecution on political and religious grounds. Singh fled his native India after suffering persecution due to his support of religious and political rights for the Sikh minority in the Punjab province of India. He entered the United States without inspection in November of 1995 and filed an application for asylum. On September 26 1996, the INS commenced deportation proceedings against him.

In his asylum application, and during seven subsequent hearings before an Immigration Judge ("IJ") held over the course of more than four years, Singh described his activism on behalf of the Sikh separatist movement in Punjab, including his membership in the All India Sikh Student Federation ("AISSF") and his support of the Akali Dal Party.

At the age of nineteen, Singh became involved with the AISSF after an attack on the Sikh Golden Temple, which was believed to be the work of Indian security forces. In 1988, Singh was arrested during an AISSF rally that he organized in Jallhandar. He was held in jail for fifteen days, while being beaten and tortured by the police. He was never charged with a crime nor brought before a judge.

In January of 1992, Indian police again arrested Singh without a warrant. He was held for twenty days, beaten with a bamboo stick, punched, kicked, and threatened with death if he did not end his affiliation with the AISSF. The police told him he was arrested because of his association with Sikh militants, even though he adamantly denied any such association.

In August 1993, Singh was arrested for a third time, along with three other AISSF members, while leaving the Sikh temple in his village. He was held by the police for thirteen days, during which time he was beaten until he lost consciousness. His head was shaved, an affront to Sikh religious practice, and he was then forced to stand for hours under the hot summer sun.

In April 1995, Singh testified that he was arrested for a fourth and final time while distributing party posters and collecting party funds. This time, he was held in jail for thirty-five days, again without being charged with a crime or taken before a judge. While in jail, he was tortured, humiliated, and threatened with death if he continued to support the AISSF.

After Singh's release, his father arranged for him to leave the country through an agent who secured a fake passport and transportation for him. He traveled via Singapore to Mexico, and then entered the United States.

II.

On December 8, 2000, the IJ denied Singh's asylum application, finding his testimony internally inconsistent and inconsistent with his application. Singh timely appealed the IJ's decision to the BIA. He had recently moved to a new address and, following the form's instructions, he provided his new mailing address on the Notice of Appeal. Accordingly, the BIA sent the receipt for the filing of the appeal to that mailing address. However, on April 24, 2001, nearly a year and a half after Singh filed his appeal, the BIA sent the briefing schedule and transcript of his deportation hearings to his former address.

On July 16, 2001, seven weeks after the deadline contained in the misaddressed briefing schedule had passed, Singh learned of the error and filed an unopposed motion for an extension of time to a file a brief. On April 8, 2002, the BIA denied Singh's motion as untimely, so he was unable to file a brief.

Six weeks later, over a dissent by Board Member Rosenberg, the BIA dismissed the appeal, stating that Singh failed to provide "any specific and detailed arguments about the contents of his testimony and why he should be deemed a credible witness." Singh timely petitioned for review.

III.

We have jurisdiction over a final removal order pursuant to 8 U.S.C. § 1252(a)(1). We review for substantial evidence the decision that an alien has not established eligibility for asylum. Cardenas v. INS, 294 F.3d 1062, 1065 (9th Cir.2002) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Adverse credibility findings are also reviewed for substantial evidence. Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir.2001) (per curiam). We reverse the BIA's decision "only if the evidence that the petitioner presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002).

IV.

This is not the typical case in which a petitioner does not receive notice, is deported in absentia, and is before us attempting to explain his (or, as is more usually the case, his attorney's) failure to appear or to comply with the address requirements, deadlines, or any of the other complex INS regulations. In this case, it is the INS that has been foiled by its own byzantine rules.

The BIA's refusal to allow Singh to file a brief explaining his allegedly inconsistent testimony violated his right to due process. Indeed, "the BIA must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum." Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999); see also Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003) (due process satisfied when petitioner has "the opportunity to address the credibility question before the BIA, in briefing and in argument"). Denying Singh the opportunity to file a brief plainly violates this well-established due process right.

The BIA, after sending the briefing schedule and transcript to an incorrect address, justified denying Singh's motion to file a late brief by asserting that the motion was untimely. However, "[t]o comport with due process requirements, the notice afforded aliens about deportation proceedings must be reasonably calculated to reach them." Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir.2002). Notice mailed to an address different from the one Singh provided could not have conceivably been reasonably calculated to reach him. As Singh was not afforded notice of the deadline, the BIA's reasoning that his motion was untimely is patently insufficient. The INS argues that notice was sent to the proper address, and it is Singh who is at fault for failing to properly inform the BIA of any change of address. However, the very instructions provided on the BIA's Notice of Appeal form, EOIR-26, require immigrants to file a Change of Address form, EOIR-33, only if they wish to change the address they provided on the Notice of Appeal. The manual the BIA provides to help aliens navigate these treacherous bureaucratic waters clarifies: "When an appeal is filed, the Board relies on the address for the alien that appears in the Notice of Appeal (Form EOIR-26) until such time as a change of address is reported through the filing of a Change of Address form (Form EOIR-33/BIA)." Board of Immigration Appeals, Practice Manual 16 (2002).¹ True to its word, the BIA at first relied on the address Singh provided on his Notice of Appeal and sent receipt of the filing there, leaving Singh with no reason to suspect that the BIA was unaware of his current address. Indeed the INS frequently makes Singh's very argument to us when it sends notice to the address on the Notice of Appeal and either the petitioner has moved without providing a Change of Address form, or he expected notice to be sent to his counsel's office.

The INS also argues that Singh's failure to exhaust his administrative remedies robs us of jurisdiction to hear this argument. According to the INS, the BIA requires that a late-filed brief accompany the motion for an extension of time, and Singh "apparently chose not to follow these instructions." The INS concludes that Singh's failure to file a brief before the BIA indicates that he has not exhausted his administrative remedies.

As his motion to the BIA and all his briefing in this case reveal, however, Singh had not received the transcript of the IJ proceedings before he moved for an extension of time. We are at a loss as to how Singh could file a brief clarifying the testimony that the IJ deemed inconsistent without having access to the transcript of that very testimony. It is axiomatic that one need not exhaust administrative remedies that would be futile or impossible to exhaust. See Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir.2002) (plaintiffs need not...