No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. DAOHUA YU, A Petitioner,

Transcription

1 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 1 of 21 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAOHUA YU, A Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. ON PETITION FOR REVIEW FROM AN ORDER OF THE BOARD OF IMMIGRATION APPEALS OPENING BRIEF FOR THE PETITIONER and CERTIFICATE OF SERVICE Law Offices of Manuel Q. Diones, LLLC MANUEL Q. DIONES # South King Street, Suite 202 Honolulu, Hawaii Telephone: (808) Facsimile: (808) dioneslaw@gmail.com Attorney for Petitioner DAOHUA YU NOT DETAINED

2 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 2 of 21 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii I. STATEMENT OF JURISDICTION AND VENUE... 1 II. STATEMENT OF THE ISSUES... 2 III. SHORT ANSWER 2 IV. STATEMENT OF FACTS AND PROCEDURAL HISTORY 2 V. STANDARD OF REVIEW... 6 VI. ARGUMENTS.. 6 A. PETITIONER S FIFTH AMENDMENT RIGHT TO A FAIR HEARING WERE VIOLATED BY THE GOVERNMENT S FAILURE TO MAKE THE AUTHOR OF PETITIONER S ASYLUM INTERVIEW NOTES AVAILABLE FOR CROSS-EXAMINATION AND THE IMMIGRATION JUDGE S SUBSEQUENT CONSIDERATION OF THE NOTES. B. THE IJ S CONCLUSION THAT THE PETITIONER S TESTIMONY WAS INCONSISTENT AND DISCREPANT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. VII. CONCLUSION. 13

3 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 3 of 21 TABLE OF AUTHORITIES U.S. CONSTITUTION Page U.S. CONST., Amend. V 2,8 U.S. SUPREME COURT CASES INA v. Elias-Zacarias, 502 U.S. 478 (1992) 6 NINTH CIRCUIT CASES Bandari v. INS, 227 F.3d 1160 (9 th Cir. 2000). 9 Cinapian v. Holder, 567 F.3d 1067 (9 th Cir. 2009).. 8, 11 Colmenar v. INS, 210 F.3d 967 (9 th Cir. 2000) 8 Cunanan v. INS, 856 F.2d 1373 (9 th Cir. 1988)... 8, 11 Hernandez-Gil v. Gonzales, 476 F.3d 803 (9 th Cir. 2007) 6 Hosseini v. Gonzales, 471 F.3d 953 (9 th Cir. 2006). 6 Joseph v. Holder, 600 F.3d 1235 (9 th Cir. 2010).. 6 Kaur v. Ashcroft, 379 F.3d 876 (9 th Cir. 2004). 9 Khan v. Holder, 584 F.3d 773 (9 th Cir. 2009)... 6, 12 Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9 th Cir. 2003)... 6 Ren v. Holder, 648 F.3d 1079 (9 th Cir. 2011) 7 Shrestha v. Holder, 590 F.3d 1034 (9 th Cir. 2010) 7 Singh v. Gonzales, 439 F.3d 1100 (9 th Cir. 2006). 9 BOARD OF IMMIGRATION APPEAL CASES Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).. 6 STATE CASES FEDERAL STATUTES 8 U.S.C. 1101(a)(42)(A) U.S.C. 1158(b)(1)(B)(iii) U.S.C. 1182(a)(6)(A)(i) 3 ii.

4 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 4 of 21 8 U.S.C. 1229a(b)(4)(B) U.S.C U.S.C. 1252(a) U.S.C. 1252(b) U.S.C. 1252(b)(1) U.S.C. 1252(b)(2) U.S.C. 1252(b)(4)(B).... 6, 12 FEDERAL REGULATIONS 8 C.F.R (b)(3) 1 IMMIGRATION AND NATIONALITY ACT INA 212(a)(6)(A)(i) 3 INA 242(a).. 1 INA 242(b)(1). 1 INA 242(b)(2). 1 STATE STATUTES iii.

5 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 5 of 21 PETITIONER S OPENING BRIEF I. STATEMENT OF JURISDICTION AND VENUE Petitioner Daohua Yu ( Petitioner ) petitions for review the Board of Immigration Appeals ( Board ) decision and order dated March 11, Certified Administrative Record ( CAR ) 1-5. The Board dismissed the Petitioner s appeal of the Immigration Judge s ( IJ ) decision denying his applications for asylum and withholding of removal on May 29, CAR The Board s jurisdiction arose under 8 C.F.R (b)(3), which grants the Board appellate jurisdiction over decisions of Immigration Judges in removal cases. This Court has jurisdiction over the instant petition for review pursuant to Immigration and Nationality Act ( INA ) 242(a), 8 U.S.C. 1252(a). Petitioner timely filed this petition for review on April 8, 2011, within thirty days of the Board s March 11, 2011 decision and order. See INA 242(b)(1), 8 U.S.C. 1252(b)(1) ( The petition must be filed not later than 30 days after the date of the final order of removal. ). Venue properly lies in this Court because Petitioner s hearing was completed before the Immigration Judge ( IJ ) within this jurisdictional circuit in Honolulu, Hawaii. See INA 242(b)(2), 8 U.S.C. 1252(b)(2) ( The petition for 1

6 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 6 of 21 review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. ). II. STATEMENT OF THE ISSUES 1. Did the Immigration Judge deny the Petitioner a right to a fair hearing under the Due Process Clause of the Fifth Amendment? 2. Was the adverse credibility finding by the Immigration Judge and adopted by the Board supported by substantial evidence? III. SHORT ANSWER Yes. The Immigration Judge s action, of admitting into evidence and heavily relying on the asylum officer s interview notes despite the Government s failure to make the asylum officer available for cross-examination, deprived the Petitioner of his Fifth Amendment due process right. No. The adverse creditability finding, made by the IJ and adopted by the Board, was not supported by substantial evidence. IV. STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY Petitioner is a 33 year old native and citizen of China. CAR 2, 77, 337. His claim for asylum is based on political opinion in resisting the coercive population birth control policy of China and based on past persecution. CAR , ,

7 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 7 of 21 Petitioner s education is limited to the completion of elementary school. CAR 97. He married Shou Ling Xue on December 26, 2000 and had a son on July 11, CAR Petitioner specifically testified he resisted China s birth control policy by attempting to have a second child with his wife in violation of the local birth control policy. He further testified that he confronted the birth control officials before his wife s abortion. Id. Despite his resistance, Petitioner s unborn child was aborted. Id. He left China on or about January 24, 2006, CAR 25, 314, and entered the U.S. on or about April 26, On July 7, 2006, with the assistance of an attorney, Petitioner filed a form I-589 Application for Asylum and Withholding of Removal within one year of his entry into the United States. CAR 314. On March 29, 2007, Petitioner was interviewed by an asylum officer. CAR 64, 314, 322. Following the interview on October 1, 2007, Petitioner s I-589 application was denied and he was subsequently served with a notice to appear ( NTA ). CAR He was charged and conceded removability pursuant to 212(a)(6)(A)(i) of the INA as an alien present in the United States without inspection or parole. 8 U.S.C. 1182(a)(6)(A)(i); CAR 77. Petitioner s merit hearing was scheduled for May 7, Petitioner participated in the hearing with the assistance of an attorney and a Mandarin language interpreter. During this hearing and for the first time, the attorney for the 3

8 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 8 of 21 Department of Homeland Security ( DHS ) introduced written notes, to the Immigration Court and to the Petitioner, purported to be authored by the asylum officer during the March 29, 2007 interview with the Petitioner. CAR 103. The IJ pointed out the inconsistency of the Petitioner s court testimony and the interview notes factual accounts of a described detention. CAR Petitioner s attorney questioned the accuracy of the notes, stated his objection to its introduction, and requested a cross-examination of the author of the proffered evidence either by telephonic or in-person examination. CAR , 139. The DHS attorney represented to the immigration court that she would find out the identity of the asylum officer and stated, I can call them as a witness--. CAR The IJ specifically adjourned the May 7, 2009 hearing for a threeweek period to allow the DHS attorney to make some kind of arrangements to obtain the asylum officer as a witness in order to allow the Petitioner to crossexamine the purported author of the interview notes. CAR 139. Interestingly, the IJ comments on the record and states, Well, I m actually kind of, curious to hear from the asylum officer. And, I certainly don t want a remand to do that. CAR 143. During the continued hearing on May 29, 2009, the DHS attorney failed to produce the asylum officer s testimony and simply represented to the court that, the CIS legal counsel for that area of the country, who said that they were unable 4

9 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 9 of 21 to contact the asylum officer. So, at this point in time, I would just ask that the notes be admitted, with the representation that the, the maker is unavailable to testify. CAR 150. Over Petitioner s counsel s articulated objections, the IJ admitted the notes into evidence as a business record. Id. After closing the record for evidence and hearing the parties closing arguments, the IJ issued an oral decision denying Petitioner s application for asylum, withholding of removal, and protection under the Convention Against Torture ( CAT ). CAR In her oral decision, the IJ cited two major discrepancies as the basis of her adverse credibility finding: (1) conflicting evidence between the purported officer s hand written notes and Petitioner s testimony regarding non-detention; and (2) Petitioner s testimony regarding events on the day of his wife s abortion on or about October 8, CAR The Petitioner timely filed an appeal to the Board on June 23, CAR 52. The Board dismissed Petitioner s appeal on March 11, 2011 holding that Petitioner s due process rights were not violated, he was not credible, and that he failed to meet his burden of proof to establish his claim. Petitioner filed a timely petition for review on April 8, 2011 and is not currently detained. 5

10 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 10 of 21 V. STANDARD OF REVIEW Although the Board did not specifically cite its decision in Matter of Burbano, 20 I&N Dec. 872 (BIA 1994), it did not express disagreement with any part of the IJ s findings and adopted the IJ s decision it its entirety. See Joseph v. Holder, 600 F.3d 1235, 1239 (9 th Cir. 2010). Where the BIA conducts its own review of the evidence and law, the court s review is limited to the BIA s decision, except the extent the IJ s opinion is expressly adopted. Id citing Hosseini v. Gonzales, 471 F.3d 953, 957 (9 th Cir. 2006). Factual determinations by the IJ and the Board are reviewed under a substantial evidence standard and are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. 1252(b)(4)(B); see also Khan v. Holder, 584 F.3d 773, 776 (9 th Cir. 2009). The IJ and the Board s determination that Petitioner failed to meet his burden is also subject to the application of that same standard. INA v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Constitutional due process challenges to immigration decisions are reviewed de novo. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9 th Cir. 2003). Questions of law are reviewed de novo. Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 (9 th Cir. 2007). 6

11 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 11 of 21 VI. ARGUMENTS To be eligible for a grant of asylum, the Petitioner must carry the burden of showing that he is a refugee, who is unable or unwilling to avail himself to the protection of his native country of China because of persecution or a well-founded fear of persecution on one of the five articulated protected grounds. 8 U.S.C. 1101(a)(42)(A). The determination of the credibility of an alien, such as the Petitioner who submits an asylum application on or after May 11, 2005, is governed by the corroboration standards established in the REAL ID Act 1. Although the REAL ID Act expands the bases on which an IJ may rest an adverse credibility determination, it does not give a blank check to the IJ enabling him or her to insulate an adverse credibility determination from our review of the reasonableness of that determination. Ren v. Holder, 648 F.3d 1079 (9 th Cir. 2011) citing Shrestha v. Holder at Despite the applicability of the heightened standard of the REAL ID Act, it was erroneous for the IJ to make an adverse credibility finding where: (1) Petitioner was denied a right to a full an fair hearing and Petitioner was prejudiced 1 The REAL ID Act abrogated the rule that inconsistencies that do not go to the heart of an applicant s claim may not support an adverse determination. 8 U.S.C. 1158(b)(1)(B)(iii); Shrestha v. Holder, 590 F.3d 1034 (9 th Cir. 2010). 7

12 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 12 of 21 by the IJ s violation of his due process rights; and (2) the IJ s determination was not supported by substantial evidence. A. Petitioner s Fifth Amendment Due Process Rights To A Fair Hearing Were Violated By the Government s Failure To Make The Author of Petitioner s Asylum Interview Notes Available For Cross-Examination and the Immigration Judge s Subsequent Consideration of the Notes. The Petitioner was entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf. Cinapian v. Holder, 567 F.3d 1067 (9 th Cir. 2009); Cunanan v. INS, 856 F.2d 1373 (9 th Cir. 1988). An alien in removal proceedings must have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien s own behalf, and to cross-examine witnesses presented by the Government. 8 U.S.C. 1229a(b)(4)(B). The Due Process Clause of the Fifth Amendment bestows the right to a fair hearing on every alien in removal proceedings. Cinapian v. Holder, 567 F.3d 1067, 1074 (9 th Cir. 2009); see also Colmenar v. INS, 210 F.3d 967, 971 (9 th Cir. 2000). The Court must conclude that insofar as any discrepancies or inconsistencies actually exist, the Petitioner must be given a fair opportunity to fully present his case to the Court and the IJ must issue a reasoned decision in which he or she has fully heard, considered, and addressed the Petitioner s arguments or explanations 8

13 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 13 of 21 for any identified discrepancies. Singh v. Gonzales, 439 F.3d 1100, (9 th Cir. 2006); see also Kaur v. Ashcroft, 379 F.3d 876, 887(9 th Cir. 2004). Petitioner s right to confront and to cross-examine Government witnesses become increasingly significant considering that this Court has recognized that asylum hearing frequently generate mistranslations and miscommunications. Bandari v. INS, 227 F.3d 1160, 1166 (9 th Cir. 2000). The Petitioner called into question the possibility of this type of inaccuracy and the veracity of the notes when he clearly states he did not tell the asylum officer that he was detained by testifying as follows: Q. And, and, why, why did the official, I mean, the asylum officer wrote on your application that you were detained for 15 days? A. At the time, I was trying to talk with the officials, seeing if there was a way to solve this, by having me pay the fine. But, the officials didn t agree. They said don t make any trouble. If you do, I m going to detain you for 15 days. Q. So, you, you did not tell the asylum officer that you were actually physically detained for 15 days. Is that correct? A. No, I didn t tell him that. CAR On cross-examination the Petitioner again affirms his prior testimony in further testifying: Q. Okay. So, are you now saying that you did tell the, asylum officer that you were detained? A. I m saying that the officials warned me, saying that if I kept doing things like that, they would detain me in the future, for, for 15 days. 9

14 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 14 of 21 Q. Okay. There s, there s two things. The first is, again, were you ever detained? A. No. Q. And, the second thing is did you ever tell the asylum officer that you were detained? A. No.. Q. According to the notes in the file, it says you told the asylum officer that you were detained, that you arrived about 3 o clock p.m., at the detention facility, which was the public security branch in your town. Do you remember that statement? A. No, I don t. CAR Yet despite the Petitioners steadfast and continued testimony that he did not tell the asylum officer he was detained while in China, despite the IJ s finding that, There was nothing in [Petitioner s] demeanor that detracted from his credibility, and despite the fact that the IJ herself was curious to hear from the asylum officer, both the IJ and the Board found it reasonable to give great deference to the notes without corroboration by the purported author. Further, the Board is incorrect in finding that reasonable steps were made to make the asylum officer available for the hearing. The transcript of proceedings indicate that the DHS attorney only notified the immigration court and Petitioner that the maker would not be available for cross-examination during the 10

15 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 15 of 21 continued May 29, 2009 hearing despite making prior representations that the asylum officer would be called by the Government as a witness. CAR 150. How is this considered a fair hearing for the Petitioner? Petitioner s counsel relied on the Government s prior representations and specifically prepared to cross-examine the asylum officer to refute the contents of the interview notes. No documentary evidence was provided by the DHS attorney to corroborate the asylum officer s unavailability nor was the Petitioner given advance notice. In Cunanan v. Immigration & Naturalization Service, the petitioner was unaware of an affidavit harmful to his claim and ignorant to the necessity of crossexamining the affiant. Cunanan v. INS, 856 F.2d 1373 (9 th Cir. 1988). The petitioner in Cinapian was similarly unprepared to refute evidence against him where the government did not disclose forensic evaluations of documents in advance of the merits hearing. Cinapian v. Holder, 567 F.3d 1067 (9 th Cir. 2009). Cunanan and Cinapian are analogous to the instant case in that Petitioner essentially did not have a fair or reasonable opportunity to prepare for the absence of the Government s witness in advance of the hearing. B. The IJ s Conclusion That the Petitioner s Testimony Was Inconsistent and Discrepant Was Not Supported By Substantial Evidence. The IJ commits clear and plain error in finding that the Respondent s testimony was at odds with the wife s letter to the Immigration Court by, saying 11

16 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 16 of 21 she went directly to the hospital as opposed to stopping at gynecological examination that was conducted elsewhere. CAR Under the substantial evidence standard a reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. 1252(b)(4)(B); Khan v. Holder, 584 F.3d 773, 776 (9 th Cir. 2009). The IJ s supposition is no way supported by the record or evidence. Both the Board and the IJ seemed to have completely ignored Petitioner s unmistakable testimony of: After them forcefully having my wife go through the checkup, they found out she was pregnant. And, right away, they took her to hospital, and have her have the abortion operation. CAR 24. Later, when the Petitioner is again cross-examined in a line of questioning about whether the gynecological examination occurred at the hospital, he clarifies that she had never gone for a regular gynecological exam. CAR 115, line He then clarifies that the checkup or the pre-abortion examination was not done in the hospital, She had the checkup done in the village. CAR 115, line Petitioner s former counsel was correct in stating that no reasonable factfinder would find inconsistencies between the wife s letter to the Immigration Court and Petitioner s testimony. CAR The IJ s concern over major discrepancies between the documentary evidence and Petitioner s testimony cannot constitute a valid ground for denying 12

17 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 17 of 21 Petitioner s claim especially when the IJ s conclusions are erroneous and based on insubstantial evidence. CONCLUSION For the foregoing reasons, Petitioner respectfully requests that this Court grant the instant petition and reverse the IJ and Board s findings that the Petitioner was not credible. At a minimum, Petitioner s case should be remanded for further proceedings on his application for asylum, withholding of removal, and protection under the Convention Against Torture. DATED: Honolulu, Hawaii August 13, 2012 Respectfully Submitted, /s/ Manuel Q. Diones MANUEL Q. DIONES Law Offices of Manuel Q. Diones, LLLC 8 South King Street, Suite 202 Honolulu, Hawaii Tel: (808) Fax: (808) Attorney for the Petitioner DAOHUA YU 13

18 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 18 of 21 CERTIFICATE OF COMPLIANCE I certify that, pursuant to Federal Rules of Appellate Procedure Rule 32(a)(7)(A) and Circuit Rule 32-1, Petitioner s Opening Brief is proportionally spaced, has typeface of 14 points, contains 3,164 words (which is less than the 14,000 word limit for opening briefs), and has 17 pages (which is less than the 30 page limit and complies with FRAP Rule 32(a)(7)(B) and (C)). DATED: Honolulu, Hawaii August 13, /s/ Manuel Q. Diones MANUEL Q. DIONES Law Offices of Manuel Q. Diones, LLLC 8 South King Street, Suite 202 Honolulu, Hawaii Tel: (808) Fax: (808) Dioneslaw@gmail.com Attorney for the Petitioner DAOHUA YU

19 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 19 of 21 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule , counsel for the Petitioner is not aware of any related cases pending before the Court. Dated: Honolulu, Hawaii, August 13, /s/ Manuel Q. Diones MANUEL Q. DIONES Law Offices of Manuel Q. Diones, LLLC 8 South King Street, Suite 202 Honolulu, Hawaii Tel: (808) Fax: (808) Dioneslaw@gmail.com Attorney for the Petitioner DAOHUA YU

20 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 20 of 21 STATEMENT OF CUSTODY STATUS Petitioner is not detained in the custody of the Department of Homeland Security, and he has not moved the Board of Immigration Appeals to re-open or applied to the district court for an adjustment of status. DATED: Honolulu, Hawaii, August 13, /s/ Manuel Q. Diones MANUEL Q. DIONES Law Offices of Manuel Q. Diones, LLLC 8 South King Street, Suite 202 Honolulu, Hawaii Tel: (808) Fax: (808) Dioneslaw@gmail.com Attorney for the Petitioner DAOHUA YU

21 RESTRICTED Case: , 08/13/2012, ID: , DktEntry: 13-1, Page 21 of 21 CERTIFICATE OF SERVICE I, Manuel Q. Diones, certify that on this date of August 13, 2012, one (1) copy of the Petitioner s Opening Brief and all attachments thereto was served upon Counsel for the Respondent, by placing it in a United States mailbox, first class paid, addressed to: U.S. Department of Justice Civil Division Office of the Immigration Litigation P.O. Box 87, Ben Franklin Station Washington, D.C., I Manuel Q. Diones, further certify that on this date of August 13, 2012, I caused the foregoing Petitioner s Opening Brief to be electronically filed with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit via the Appellate ECF system. /s/ Manuel Q. Diones MANUEL Q. DIONES Law Offices of Manuel Q. Diones, LLLC 8 South King Street, Suite 202 Honolulu, Hawaii Tel: (808) Fax: (808) Dioneslaw@gmail.com Attorney for the Petitioner DAOHUA YU