*1 MANIMBAO, MENDOZA Juan
Petitioner, ASHCROFT, Attorney John General, Respondent. 00-71329, INS-A70-184-349. Nos. Appeals, United States Court Ninth Circuit. Feb. 2002.* Submitted Aug. Filed * argument. without oral unanimously case able for decision panel This finds this suit- *2 Feldun,
Joseph L. Korenberg, Abra- Feldun, Encino, CA, mowitz & for the petitioner.
Cathy Appling, Attorney, Office of Im- migration Litigation, Department U.S. Justice, Division, DC, Washington, Civil for the respondent. TROTT, THOMAS,
Before WARDLAW, Judges. Circuit WARDLAW; Opinion by Judge Dissent by Judge TROTT.
OPINION
WARDLAW, Judge. Circuit Manimbao, Juan Mendoza a native and Philippines, petitions citizen of the for re- view of a final order of deportation issued by the Board of Immigration Appeals (“BIA”), denying asy- applications lum and under Immigration Nationality Act (“INA”) 243(h), sections 208 and 8 U.S.C. Hav- 1253(h) (1994), of the names of members. reinstating a list its §§ list, the NPA ing found Manimbao Immi- voluntary departure. period and killed family’s property looted (“IJ”) to make failed Judge gration Later, while night one their farm animals. credibility finding supported express *3 four the walking companions, with he was Concluding that cogent reasons. specific, heavily armed men. by was attacked group in the the central issue credibility was friends, resulting in four of his They shot for the IJ case, itself the BIA substituted Santos, one, injury Nick and the death of adverse—credibility its and made own— managed to es- to others. Manimbao the Because, case, in this determination. the captured by cape temporarily, but was issue, the dispositive the credibility was taken to a secluded area men and armed (1) failing to remand to the BIA erred in interrogated and beaten. he was where with finding, consistent an express IJ for names of other The demanded the NPA the regulations and its requirements the neighbor sought A Barangay members. (2) circuit; requiring Man- and law of our military him. The the rescued help and to corroborative provide evidence imbao if he returned application also stated that burden, when, if his meet his “killed for country he would be to his home credible, have had he would were deemed sure,” NPA “are still as members of the no to do so. obligation looking [him].” hearing January on deportation At his Background I. 21, 1997, an through Manimbao testified entered the United States Manimbao Philippines be- that he left interpreter visitor, 19, 1992, nonimmigrant aas June jeop- his life in placed cause the NPA had to remain until December with permission in Baran- ardy membership to his 1996, the INS April On 1992. joined he gay. explained He charging an Show Cause issued Order organization opposed Barangay, deportability section Manimbao with under NPA, supported government, and 241(a)(1)(B) INA, 8 U.S.C. confusing in In a collo- somewhat 1251(a)(1)(B) (1992), of his un- because quy, that “five of us were walk- he stated in the States. presence authorized United killed;” Nick ing when—when Santos 7, 1996, pro- August On He escaped. four shot and four were the factu- admitted to ceedings, Manimbao killed then “I was the one not stated: conceded his allegations, deportability, al or Manimbao the men spared.” surmised asylum, withholding of de- applied he members of the NPA because were voluntary departure. Man- portation, and Barangay and communicated helped application imbao’s stated military, the men asked noting with the joined organization he sometime if I was with and people him are the “who Barangay govern- to assist called the still He further organization alive.” campaign against ment its communist that he had informed 'the neither testified rebels,, People’s Army such as the New he was member of the attackers that (“NPA”). in the actively participated they He had asked him. The Barangay nor activities, including tak- Barangay’s public clarify who was IJ asked Manimbao Mar- many injured in 1983 the late President ing part killed and how were Man- against communist rebels. attack armed men. campaign night cos’s success, testimony, met an- clarified his stat- with some imbao earlier Barangay along had been shot ing rebels. When the that Santos gering the communist (Manimbao) he three other men Barangay, NPA it obtained learned killed, jority attempts was not because NPA wanted to remedy this defect Mm for additional informa- interrogate making an adverse credibility finding for Barangay. Manimbao tion about also the first time on appeal. Ninth Circuit men, stated that the three other than permit San- law does not us to do this. Abo tos, who had been shot survived. Follow- vian v. [219 F.3d 978] incident, ing Cir.2000); the NPA created prob- Campos-Sanchez v. town, (9th Cir.1999). harassing family
lems
his
businesspeople.
Manimbao believes Manimbao filed a timely petition for re-
will
if
the NPA
harm him he returns to view. He contends that the BIA
erred
country.
making an
adverse
determina-
*4
tion for the first time on appeal in violation
applications
The IJ demed Petitioner’s
of his Fifth Amendment right
pro-
to due
withholding
deportation,
for
of
cess.
granted voluntary departure.
but
The IJ
correctly recogmzed
applicant’s
II. Standard of Review
testimony
may
alone
sustain his burden of
“We review credibility findings
establishing eligibility
asylum.
for
The IJ
under a substantial evidence standard.”
then seized upon seeming inconsistencies
Aguilera-Cota
v. United States
914
(all
testimony
Manimbao’s
of which ac-
(9th
Cir.1990).
F.2d
Although
tually had been clarified and reconciled
we accord substantial deference to an IJ’s
within the transcript) to decide that Man-
credibility finding,
one,
the IJ must make
imbao’s
alone was not sufficient-
“specific,
and offer a
cogent reason
any
detailed,
ly
plausible,
complete
to meet
stated disbelief.” Hartooni v.
not, however,
his burden. The IJ did
find
Cir.1994).
“The IJ
that Manimbao was not credible.
must
not
articulate the basis for a
Both the government and the BIA rec-
negative credibility finding, but those rea
decision,
ognized this
flaw the IJ’s
but
sons must be substantial and bear a legiti
attempted nevertheless to circumvent both
mate nexus to the finding.” Aguilera-
BIA and Ninth
governing
Circuit law
Cota,
well-founded fear of persecu- [future] enough.”). tion....” Chairman Paul Wickham Schmidt dissented: III. Discussion The Immigration Judge did not make a Credibility A. Determination credibility finding that satisfies the stan- A-S,
dards we set forth in Matter
Petitioner
contends that
(BIA 1998).
I & N Dec. 1106
The ma-
erred in maMng
an adverse
de-
when,
and the IJ
after both the INS
clause
appeal.
time on
the first
termination
credible, the
petitioner
expressly found
argument di-
addressing this
Instead
BIA,
review of the
upon
independent
asks us to review
rectly, the Government
record,
asylum and
denied the
under
credibility determination
BIA’s
solely on
based
re-
standard. We
evidence
the substantial
credibility.
assessment of his
its adverse
request, agreeing
ject
the Government’s
case,
however,
where
had not
such
Campos-Sanchez,
dispositive.
below that
been advised
any discrepan-
or that
questionable,
that, to en
beyond
It is
debate
exist;
nor was he asked
appeared
cies
adminis
law is
sure that
substantive
any
perceived discrepan-
explain
such
pro
Fifth Amendment
fairly, the
tered
contrary,
INS
Quite the
both the
cies.
hearing”
fair
right
to a “full and
vides
Campos-
expressly found
and the IJ
*5
Campos-Sanchez
cases.
deportation
Thus, Campos-
to be
Sanchez
credible.
(9th Cir.1999);
INS,
448, 450
2
164 F.3d
the inconsis-
had no notice of
Sanchez
Pierce, Jr.,
Richard J.
Kenneth C. Davis &
BIA,
by the
and no
perceived
tencies
9.2,
at
Treatise
561
Administrative Law
them.
opportunity
explain
to
Wasserman,
ed.2002);
Immigra
Jack
omitted).
(citations
Id. at 450
(3d ed.1979);
and
217
tion Law
Practice
INS,
logic Campos-
the
Far
In Abovian
Are We That
Scaperlanda,
Michael
step
one
further.
was
Deporta
Sanchez
taken
Due Process and Secret
Gone?:
There,
credibility finding
no
the IJ
Pol’y
L. &
Rev.
made
Proceedings,
tion
Stan.
7
Abovian,
(1996).
Despite
F.3d at 975.
Therefore,
the
at all.
BIA
219
“[w]hen
silence,
an
BIA made
inde-
an inde
the IJ’s
“the
asylum
an
case ‘based on
decides
finding and de-
adverse,
credibility
adverse
credibility
pendent
determina
pendent,
IJ,
and
tion,
request
nied Abovian’s
contrary
by
to
reached
the
it
in
part
on this
give
petitioner
opportunity
to
must
deci-
Id. We overturned
BIA’s
that it
basis.”
explain any alleged inconsistencies
”
INS,
sion,
and con-
relying
Campos-Sanchez,
the first time.’ Abovian v.
raises for
(9th Cir.),
[peti-
cluded that
BIA violated
by
“[t]he
amended
219 F.3d
(2000)
making
rights
process by
tioners’]
1127 and
reversal was contrast, heavily upon In in a ease relied process certain due petitioner is accorded Government, Pal v. by the rights. (9th Cir.2000), BIA made an ad- on reasons cases, credibility finding verse based upon by In a relied both trilogy of Manimbao, by advanced the IJ divergent from we elabo- those Government and credibility determination. require- for its adverse upon process rated these due the IJ’s First, Id. at 938. We Campos-Sanchez, in we concluded ments. finding put petition- credibility the due adverse held that the violated choub, 1043; credibility notice that her was 257 F.3d at ample er on Shah v. Cir.2000); upheld ruling. the BIA’s Id. see also issue de However, Leon-Barrios v. relying upon at 939. in Pal for (9th Cir.1997) (“Generally, minor inconsis- argument its Manimbao was suffi- tencies and minor relating omissions ciently put credibility on notice that his unimportant facts support will not an ad- in jeopardy, the Government misses Therefore, verse credibility finding.”). the central distinction in this case. While credibility observation in passing made upheld is true that we the adverse credi- does not constitute a credibility finding bility determination made the BIA in sufficient for review under the standards Pal, previ- we did so because the IJ had we have developed. ously explicit made an credibility adverse determination, putting thus Aguilera-Cota, In questioned the IJ credibility on sufficient notice that her was petitioner’s credibility because his oral tes- issue, giving her the opportunity timony included information not set forth credibility question asylum application. address before the Aguilera-Cota, BIA, in briefing argument. Con- 1382. The IJ found that the petitioner was “not versely, rejected entirely we credible” BIA’s adverse witness, adopted and the BIA IJ’s Campos-San- determinations finding. Id. at 1382-83 & n. Although chez and very Abovian for the reason that we noted that the IJ’s determi- petitioners those cases had not been given deference, nation must be we also forewarned the IJ that their pointed to our holding case law that such a in question. determination must specific, cogent include Here, the IJ neither found Peti *6 reasons for Id. (citing disbelief. at 1381 tioner credible nor completely remained INS, (9th 1396, Turcios v. 821 F.2d 1399 Instead, credibility. silent as to his inas Cir.1987)); INS, see also Damaize-Job v. INS, Aguilera-Cota 1381, (9th Cir.1986) (trier 1332, 787 F.2d 1338 of the IJ found Manimbao’s alone rejects fact who a positive witness’s testi- proof insufficient to establish his burden of mony because it lacks must of- claim, asylum presumably his because disbelief); a specific, cogent fer reason for However, it him found less than credible. Schweiker, (9th 631, Lewin v. 654 F.2d 635 held, previously as we have credibility Cir.1981) (same). The credibility determi- findings supported by specific, must be nation is “the beginning not the end of our cogent reasons that are substantial and 1381; inquiry,” Aguilera-Cota, 914 F.2d at legitimate bear a nexus to the determina we must then examine the basis for that petitioner tion that the did not meet his determination to ensure it satisfies due establishing eligibility burden of asy Thus, process requirements. a passing lum deportation. and See Chebchoub v. reference to insufficiency or disbelief can- 1038, Cir.2001); not adequate credibility constitute an de- Osorio v. Cir. Aguil- termination. As was well-stated in 1996). Minor inconsistencies the record erar-Cota:
that do not relate to appli the basis of an this, important a matter as as if [O]n an alleged persecution, cant’s fear of go to the asylum rejected applicant’s plea is to be claim, heart or any reveal and he is to returned possibly be home— thing asylum applicant’s about an fear for to face threats to his life— renewed safety his are support insufficient to simply because IJ doubts his credibil adverse finding. ity, explicit See Cheb- must make a more IJ determinations, to make factual equipped untruthful that he is finding
and direct credibility. as to especially mere state- here. The made than was entirely is ‘not a ment in the context of the explained weAs enough. not is credible’ law administrative similarly-situated judge: Aguilera-Cota, the administrative Weight given [to] is agreed, government and the BIA As of judge’s determinations law legally sufficient to make the IJ failed that he or she for the obvious reason In a case such credibility determination. them testi- the witnesses and hears ‘sees credibility is a determinative this, where reviewing Board and the fy, while the factor, have remanded BIA should NLRB court look at cold records.’ proper determination. make IJ Co., Manufacturing 369 U.S. v. Walton Instead, compounded pro- the due 853, 855, 7 L.Ed.2d 82 S.Ct. required it corrobora- when cess violation (1962). the witness’s aspects All satisfy Manimbao’s burden tive evidence including expression demeanor— recognized a conclusion proof, stands, countenance, how he sits or in Ladha v. holding our inconsistent nervous, inordinately he is whether (9th Cir.2000), examination, during critical coloration evidence that corroborative held which we speech of his and pace the modulation or applicant has where required is may other non-verbal communication— credible. found been observing judge trial convince truthfully or testifying the witness the BIA should have re- view Our fac- falsely. very important These same credibility determination is manded however, tors, entirely are unavailable governing Under the stat- unremarkable. such as the transcript, a reader of the pro- conducting ute, the IJ Appeals. Board or the Court of oaths, receive administer ceedings “shall NLRB, Village, Inc. v. Penasquitos examine, evidence, interrogate, (9th Cir.1977). 1074, 1078-79 any wit- the alien cross-examine 1229a(b)(l). grant special def The im- This is the reason we 8 U.S.C. nesses.” *7 eyewitness observations duty developing erence to the IJ’s judge has the migration demeanor evidence. Parama regarding his or her decision on which the record 1047, reason, 2002 samy Ashcroft, v. 295 F.3d WL Id. For that based. must be (9th 1544588, 16, 2002); July inquiry at *3 Cir. judge special acts as a immigration l.l(i). v. § “These Paredes-Urrestarazu United States 8 C.F.R. officer. See (9th INS, 801, F.3d 818 & n. 19 Cir. obligations put immigration 36 statutory 1994). Moreover, long recognized to that of an we have position analogous in a judge interpretation may in re judge.... law Like the ad- that difficulties administrative inconsistencies, especially judge immigration seeming law sult ministrative cases, this, a such as where there is obligation to be informed has the judge INS, 212 See Maini v. language relevant to the decision barrier. the facts about (citations omitted). (2000) 1167, INS, 955, F.3d 1177 Fisher v. being made.” banc) Cir.1996) (en (Noonan, J., simply unable to dis appellate body An is 972 interview, observe Campbell, dynamics till the (citing Heckler v. dissenting) 1952, properly, 471, 1, interpreted 458, 76 whether words were n. 103 S.Ct. 461 U.S. J., (1983) (Brennan, hesitation or whether concur- whether there was L.Ed.2d 66 (i.e., inconsistency whether supposed best ring)). The IJ is the decisionmaker
859
killed)
race,
one man or four men
or
religion,
were shot
nationality, membership in a
misinterpretation,
was a matter of
confu- particular social group,
political opinion.
or
sion, or a true inconsistency.
1101(a)(42)(A);
§
See 8 U.S.C.
Elias-Za
carias,
at-481-82; Turcios,
502 U.S.
821
conclude, therefore, that
We
the IJ
“
F.2d at 1398. Persecution is
‘the inflic
should not be allowed to dance around the
tion of suffering
upon
or harm
those who
question
credibility, leaving
differ
...
in way
a
regarded as offen
(and
court)
eventually this
to resolve what
”
INS,
sive.’ Sangha
1482, 1487
v.
is
quint-essentially
issue for the trier of
(9th Cir.1997)
(ellipsis
original) (quoting
fact.
It
is the IJ who is
the best
Sagermark
649
determine,
position
conclusively
and ex
Cir.1985)).
plicitly, whether or not
is to
Canjura-Flores
be believed.
To establish a well-founded fear of
(9th Cir.1985) (“The
Immi
persecution, petitioners must show that
gration Judge
position
is
the best
to their fears are “both objectively reason
credibility findings
make
because he views
Ladha,
able and subjectively genuine.”
the witness as the
given.”);
(internal
quotation
marks
Hartooni,
(same).
see also
[ ]he return
pre
rebut this
long passage
the INS can
light
738. “Unless
In
eligible
asy
sumption, [petitioner]
Philippine’s polit
time and indications
lum.” Tarubac
than
may indeed be different
ical terrain
Cir.1999).
left,
he has
in 1992 when Manimbao
probability
a clear
not demonstrated
plac-
Here,
by improperly
BIA erred
he de
were
would resume
persecution
Manimbao,
proof
ing
burden
fear is well-
Although Manimbao’s
ported.
contained
stating
“the information
founded,
it is more
say
cannot
we
Country]
does not
[Philippine
Profile
persecuted
that he will be
likely than not
respondent’s
provide corroboration
*9
he
should
political
beliefs
based
his
claim,
provid-
has
respondent
...
the
therefore
Philippines. We
return to the
would corrobo-
ed no other evidence
depor
withholding of
for
Tarubac,
deny his request
rate his claim.” Cf.
Gui,
1230.
at
tation. See
Moreover,
provide
the BIA failed
IV.
Conclusion
exist;
peared to
nor was he asked to
explain any
perceived
such
discrepan-
asylum.
Manimbao is
for
eligible
We
Quite
cies.
contrary,
the
both the INS
remand to the BIA for an exercise of
and the
expressly
IJ
found Campos-
by
Attorney
discretion
General with
Sanchez to
Thus,
be credible.
Campos-
respect
asylum
to whether Manimbao’s
re-
Sanchez had no notice of the inconsis-
quest
granted,
should be
but deny
re-
his
tencies perceived by
BIA,
and no
quest
for
of deportation.
opportunity
explain
them.
PART,
IN
PETITION GRANTED
RE-
Campos-Sanchez,
ny. in addition to this credibili- he based people upon tencies which that three indicated later Pal, He killed. were ty finding. See Nick Santos were they that state on changed put that notice (noting Pal had been n. 3 Also, respondent the only wounded. the IJ in doubt credibility was that her it was he knew how explain could not who officer an INS as well as assessment also and he could NPA that attacked the veracity). her questioned was he the NPA knew how explain not the Moreover, understood Manimbao Also, respondent the Barangay. in the ques- veracity into to call his remarks IJ’s prob- other he suffered that indicated Appeal of Support Brief in tion. In his not offer but he did NPA the lems with BIA, argued at the Manimbao before prob- what these as to details specific credibility de- that the IJ’s adverse length only that his indicated He lems were. by sub- supported was not termination respondent The family was “disturbed.” any that explained He stantial evidence. therefore, testimony offered, has from resulted inconsistencies perceived only the disturbed as family was that Manimbao and mistake. nervousness Also, 1988. him since against threat credibility along that his was all knew lack the and the inconsistencies on based explain the attempted he question, and respon- that the details, I of would find BIA. before the inconsistencies perceived not testimony in dent’s suffi- itself detailed, complete and plausible ciently context, process required In this due support adequate alone to stand to be heard and an only opportunity notice his claim. got credibility. Manimbao issue of on the that the abundantly reflects record This he was due.1 process the credibility of Manimbao’s questioning IJ’s would credibility that his him on notice
put Specifically, BIA. the issue before an be that Manimbao’s warned the IJ plausible. or sufficiently detailed not worthy of “superficially “Plausible” means CREDIBLE,” Third Webster’s belief: of an constitute abuse Does this scenario not dic- majority’s footnote one is majority process by BIA? The ta, pur- rash inappropriate and dicta but affirmative; I certainly would answer us. not even before a case ports to decide As we that answer correct. said is doubt vio- briefing,” due "Briefing noor Abovian, power to does have the "The BIA following hypothetical: Consider lated? record, to of the a de novo review conduct makes no determination The IJ independently findings, own its make peti- issue and does address evi- sufficiency review credibility. Upon the BIA's inde- tioner’s dence,''[and] an the BIA decides "[w]hen however, record, pendent review independent, ad- on an case based determination, of the record the face contrary determines on verse dispositive IJ, petitioner's give is the it must reached petition- explain any orders that the opportunity and therefore issue supplemental brief- submit it raises perceived er and the INS inconsistencies (internal credibility. at 978 receiv- time.” ing After first issue omitted). Briefing quotations contemplating supplemental ing citations petitioner, provides a includ- petition on the BIA before briefing, the denies Manimbao, opportunity ing notice and credibility grounds.
Douglas Harik; Kyle Staples; Roxanna HARIK; Douglas Kyle Staples; Escalante; Contreras; Roxan Nance Patricia Guthrie; Raymond Richardson; Escalante; Contreras; Kar- na Nance Pa- Chavez; en Sheffield, Kim Plaintiffs- Guthrie; Raymond Richardson; tricia Appellees, Chavez; Sheffield, Karen Kim Plain-
tiffs-Appellants, California Association; Teachers McKinley Franklin Education Associ- ation; South San Francisco Teachers CALIFORNIA TEACHERS ASSOCIA- Association; Angeles County Los Ed- TION; McKinley Franklin Education Association; ucation Saddleback Val- Association; South San Francisco ley Association; Education Dinuba Association; Angeles Teachers Los Association; Teachers Chula Vista County Association; Education Sad Association; Education Association Valley dleback Education Associa Chino; City Of Yuba Unified Edu- tion; Association; Dinuba Teachers Association, cation Defendants-Appel- Capacity, in William his Official Su- lants, perintendent, Education, Board of City District; Yuba Unified School Larry Capacity Superinten- in his as Capacity, William in his Official Su- dent, McKinley perintendent, Elementary Education, Franklin Board of City District; Yuba Unified District; School Rigg, School Richard in his Larry Capacity Superinten- as Capacity Superintendent, as South dent, McKinley Elementary Franklin San Francisco Unified School Dis- District; Rigg, School Richard in his trict; Capacity Donald in his as Su- Capacity Superintendent, As South perintendent, Angeles County Los San Francisco Unified School Dis- Education; Office of Peter in his trict; Capacity Donald As Su- Capacity Superintendent, as Saddle- perintendent, Angeles County Los Valley District; back Unified School Education; Office of Peter in his Capacity Libia her Official as Su- Capacity Superintendent, as Saddle perintendent, Education, Board of Valley District; back Unified School Elementary Chula Vista School Dis- Capacity Libia in her Official as Su- trict, Dr.; Stan his Official Ca- perintendent, Education, Board of pacity Superintendent, as Board of Elementary Chula Vista School Dis- Education, Dinuba Unified School trict, Dr.; Stan his Official Ca- District; George in His Official Ca- pacity Superintendent, As Board of pacity Superintendent, as Chino Val- Education, Dinuba Unified School ley District, Dr.; Unified School District; George in his Official Ca- Association; Chula Vista Education pacity Superintendent, Chino Val- Chino, Association Defendants- ley District, Dr., Unified School De- Appellees. fendants. heard; requires
to be nothing more.