Tun v. Gonzales, No. 06-1477.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Melloy
• Citation: 485 F.3d 1014
• Parties: Naing TUN, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Docket Number: No. 06-1477.
• Decision Date: 21 May 2007

485 F.3d 1014 Naing TUN, Petitioner,
v.
Alberto GONZALES, Attorney General of the United States, Respondent. No. 06-1477. United States Court of Appeals, Eighth Circuit. Submitted: October 20, 2006. Filed: May 21, 2007.

[485 F.3d 1016]

Rachel E. Groneck, argued, St. Louis, MO, for petitioner.

August E. Flentje, argued, Washington, DC (Peter D. Keisler and Leonard Schaitman, on the brief), for respondent.

Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Naing Tun ("Petitioner") conceded removability and sought asylum, withholding of removal, relief under the Convention Against Torture ("CAT"), and voluntary departure. An Immigration Judge ("IJ") denied all forms of relief, and the Board of Immigration Appeals ("Board") affirmed. Petitioner now seeks review of the Board's order.

The Board determined that asylum relief was unavailable because Petitioner failed to file his asylum application within one year after entering the United States. We are without jurisdiction to review that determination. See Yakovenko v. Gonzales, 477 F.3d 631, 635 (8th Cir.2007) (holding that a finding of untimeliness is a factual finding shielded from our review by 8 U.S.C. § 1158(a)(3)). The denial of relief on the withholding of removal and CAT claims was based on an adverse credibility determination. As to these claims, we reverse and remand for further proceedings. We hold that the improper and prejudicial exclusion of evidence coupled with unreliable translation denied Petitioner a fair hearing in violation of his due process rights under the Fifth Amendment of the United States Constitution.¹ We need not address the parties' arguments as to whether we have jurisdiction to review the Board's denial of voluntary departure. Our remand on the other issues moots the Board's ruling on voluntary departure and requires a reopening of the record.

I. Background

A. General Background

Petitioner is a native and citizen of Burma and a member of Burma's minority Arakan ethnic group. He entered the United States in February 1997 at New

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York, New York, as a non-immigrant crewman in transit with authorization to remain in the United States until March 6, 1997. He overstayed this authorization, was found removable, and sought relief alleging torture, past persecution, and a fear of future persecution. The IJ handling his case excluded a physician's affidavit and testimony that would have explained how scars and markings on Petitioner's body, as well as Petitioner's current medical and psychological symptoms, were consistent with claims of torture at the hands of Burma's ruling military regime. The IJ also excluded an affidavit from a country conditions expert. The expert's affidavit spoke directly to a critical, contested issue in the case, namely, the degree of surveillance exercised by the military regime over mail and communications and the difficulty of obtaining and sending documents from Burma. Also, at Petitioner's hearing before the IJ, a native speaker of Burmese interrupted the proceedings to inform the IJ that the official translator was not correctly translating the questions and answers. Consistent with these claims of translation problems, Petitioner repeatedly had trouble understanding the questions asked by the IJ and attorneys and frequently provided answers that did not make sense in light of the questions that were asked. After the hearing, Petitioner submitted an affidavit from the native speaker detailing alleged translation errors, but the IJ declined to accept the affidavit, found no evidence of translation errors, found Petitioner non-credible, and denied relief. The Board affirmed in a four page opinion.

Because this case involves a challenge to an adverse credibility determination, alleged translation errors, excluded evidence, and an alleged deprivation of due process, it is necessary to review in detail the applications, affidavits, testimony, and other evidence admitted into and excluded from the proceedings below.

B. Application, Amended Application, and Accompanying Affidavits and Documents

Petitioner filed an initial pro se application, an amended application with a supporting affidavit, and supporting documents. The documents included a 1996 letter from Han Nyunt, a man who claimed that he protested in Burma with Petitioner in December 1996. Nyunt also claimed that military police arrested him, showed him pictures of Petitioner, and questioned him about Petitioner. Other documents included: State Department Human Rights Reports on Burma for 1997, 1998, and 2003; a document Petitioner identified as a Burmese warrant for his arrest dated October 1998; a March 2002 membership card for a pro-democracy opposition group in Burma, the National League for Democracy; and a July 2002 document stating that Petitioner was a member of a group called the Arakan League for Democracy. Petitioner also submitted a written report from Dr. Sharon Frye, a physician Petitioner offered as an expert in physical and psychological trauma. Finally, Petitioner offered a written report regarding country conditions in Burma prepared by Professor David Steinberg, the Director of Asian Studies at Georgetown University's School of Foreign Service.

In his initial, pro se application, Petitioner made the following claims. His younger brother was killed in a 1988 student demonstration. Also in 1988, Petitioner "[a]ctively took part in the mass demonstrations as a member of [the] Local Citizen's Committee of my township of South Okkalapa." Petitioner joined a group called the National League for Democracy after a 1988 coup that brought the present military regime to power in Burma. In

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1990, before an election, he was arrested with other workers from the Local Citizen's Committee and incarcerated for nearly three years at Insein Prison, where he "faced persecution, interrogations, threats and [was] forcibly put into solitary confinement." He took part in demonstrations in late 1996, shortly before he left the country in February 1997.

In his amended application, prepared with the assistance of counsel, Petitioner stated, "In 1990 I was arrested, beaten, and interrogated because of my political activities. I was incarcerated for over three years during which time I was tortured, interrogated, and forced to do hard labor. I was released only after signing a document stating that I would abstain from politics." He also claimed that a warrant was issued for his arrest in 1998, and security agents still visited his family and asked about him. He feared "indefinite incarceration, beatings and torture" because of his race, political activities and memberships in the National League for Democracy, the Arakan League for Democracy (which he joined after arriving in the United States) and the Local Citizen's Committee. He did not apply for relief immediately upon arrival in the United States because he "wanted to see if the situation in Burma improved." He applied for relief in June 1999. This was shortly after the INS issued its notice to appear and shortly after the date he alleges that he learned of the 1998 arrest warrant.

In his affidavit accompanying the amended application, Petitioner provided additional details regarding alleged abuse and torture that followed his 1990 arrest. Petitioner alleged he was arrested by military agents and detained for several months at Tauck Kyant military headquarters near Rangoon. There, he was asked about his political activities. When he refused to respond, his persecutors hanged him naked from the ceiling, beat him with bamboo batons, electrically shocked his back, chest, genitals, and shoulders, sodomized him with a rough wooden pole, beat him with rubber batons, and kicked and punched him. He was denied medical attention and still bears physical scars and suffers headaches and memory loss as a result of the torture. He then faced trial without counsel and without any appeal rights. He was convicted of political agitation and imprisoned at a prison facility called Insein where, again, he was beaten. He was later moved to a work camp where he was subjected to forced labor. He was required to break rocks, mix feces for fertilizer, and plant trees, all while wearing shackles on his legs and a collar around his waist.

C. Expert Opinions

As the first order of business at an April 29, 2004 hearing before the IJ, the government objected to the use of Professor Steinberg's report on conditions in Burma. The government did not suggest that Professor Steinberg was in any manner unqualified to offer insight regarding current conditions in Burma nor did it suggest that any evidence existed to indicate bias, lack of credibility, or lack of qualifications on the part of Professor Steinberg. Rather, the government argued that Petitioner should not be allowed to use Professor Steinberg as an expert because Professor Steinberg was not made available for cross-examination. Counsel for Petitioner noted that the immigration court in St. Louis had recognized Professor Steinberg as an expert on at least four prior occasions and that his credentials showed on their face that he was well-qualified to address country conditions in Burma. Professor Steinberg was a former employee of the U.S. Department of State, had published more than twelve books and forty articles about Burma and East Asia,

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and had taught numerous classes on Burma and East Asia. Notwithstanding these qualifications, the IJ concluded, "since the Government doesn't have the opportunity to cross-examine him, that document will not be given any weight."

As the next order of business, counsel for Petitioner sought to enter Dr. Frye's written report and have Dr. Frye testify as an expert in the fields of physical and psychological trauma. In her written report, Dr. Frye explained the background information Petitioner had given to her regarding his time in Burma. That information...