Meihua Huang v. Mukasey, 520 F.3d 1006

Meihua Huang v. Mukasey

520 F.3d 1006

9th Cir.

2008

Check Treatment

Docket

MEIHUA HUANG; Mingyan Qiu, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 04-73309.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 2008. Filed March 24, 2008.

1006 | 1007 | 1008

ways a longshot, though, and we only made it because Whaley seems like such a dangerous guy that we wanted to do everything we could to keep him away from young children. In fact, we wouldn‘t have liked our chances at the state supreme court—if we were a betting state, our money would have been on reversal. So, this court should conclude that the supreme court would probably have given Whaley a hearing on the merits. Since he didn‘t ask for one in the right way, he procedurally defaulted.”²

This argument is not manifestly inconsistent or directly contradictory with the state‘s prior contention that Whaley‘s claims were moot. Accordingly, the doctrine of judicial estoppel does not apply.

Russell v. Rolfs does not suggest otherwise, contrary to the majority‘s view. In Russell, the state of Washington first represented to the federal court that state remedies existed in the form of a “Personal Restraint Petition,” then persuaded the state courts—including the state supreme court—that such a petition was procedurally defective because it raised the same issues that the petitioner had asserted on direct appeal. 893 F.2d at 1034-35, 1037. When the petitioner returned to federal court with a second habeas petition, we held that the state was estopped from arguing that he was procedurally barred. Id. at 1037-38. Estoppel was appropriate because the state‘s positions were irreconcilable—it first argued a state remedy existed, and then, after the petitioner attempted to avail himself of this remedy, contended that it was foreclosed. As I explained above, no such inconsistency exists in this case.

IV.

The majority‘s application of judicial estoppel means that whenever the government of a state convinces one of its lower or intermediate courts that a petition for post-conviction relief is procedurally defective, the petitioner is free to abandon all action at the state level and proceed immediately to federal court. This result does violence to the concerns for comity, federalism, and orderly administration of justice that underlie the procedural bar doctrine. See Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1617, 137 L.Ed.2d 771 (1997); Reed v. Ross, 468 U.S. 1, 10-11, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). I find no support for this view and therefore, respectfully, dissent.

Danning Jiang, Fremont, CA, for the petitioners.

Roger W. Wenthe, Assistant United States Attorney, Las Vegas, NV, for the respondent.

Before: ALFRED T. GOODWIN, DIARMUID F. O‘SCANNLAIN, and W. FLETCHER, Circuit Judges.

PER CURIAM:

Meihua Huang and his wife, Mingyan Qiu, natives and citizens of China, petition for review of a Board of Immigration Appeals (“BIA“) order. The order dismissed their appeal from an Immigration Judge‘s (“IJ“) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture. We grant the petition for review in part, dismiss in part, and remand for further proceedings consistent with this opinion.

In an oral decision, the IJ denied relief because “[b]ased on the numerous, significant inconsistencies in [Huang‘s] representations of record, the Court reluctantly concludes that he has failed to discharge his burden of proving past persecution based on religion or a well-founded fear of the same.” The IJ conflated what he may have intended as an adverse credibility finding based on “numerous, significant inconsistencies” with a finding that Huang and Qiu failed to prove past or a well-founded fear of future persecution. However, the IJ never stated that he did not believe Huang‘s testimony or that a specific claim was not credible. We conclude that the IJ failed to make a credibility finding. See Mendoza-Mendoza v. Ashcroft, 329 F.3d 655, 658-59 (9th Cir. 2003) (“When the IJ makes implicit credibility observations in passing ... this does not constitute a credibility finding.“).

Instances where the IJ conflates an adverse credibility finding with an adverse decision on the merits appear before this court with increasing frequency. In Hartooni v. INS, 21 F.3d 336 (9th Cir. 1994), we remanded to the BIA a case in which the IJ had failed to make an explicit credibility finding. Id. at 342-43. The IJ did not make clear whether his decision was based on a finding against petitioner‘s credibility or a determination that the petitioner failed to prove persecution. Id. The BIA then “compounded” the error when its decision relied on the IJ‘s nonexistent credibility finding. Id.

In the case at bar, the BIA adopted and affirmed the IJ‘s decision, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Under Burbano, the BIA may adopt and affirm the IJ‘s decision in its entirety, or only in part, when it agrees with the IJ‘s reasoning and result. Id. The BIA stated that “[i]n our review, we agree with the Immigration Judge that [Huang] is not a credible witness,” and then denied relief based on an adverse credibility finding, without addressing the IJ‘s finding that Huang and Qiu failed to meet their burden of proving persecution. The BIA should not have approved the IJ‘s “finding” because the IJ made none. The BIA should have addressed the IJ‘s finding that Huang and Qiu failed to prove past or a well-founded fear of future persecution, or it could have remanded the case to the IJ for a credibility finding.

Guided by the Supreme Court‘s decision in INS v. Orlando-Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam), we will not address an IJ‘s finding “without giving the BIA the opportunity to address the matter in the first instance in light of its own expertise.” Id. at 17, 123 S.Ct. 353. When the BIA has not yet considered an issue, “the proper course ... is to remand to the agency for additional investigation or explanation.” Id. at 16, 123 S.Ct. 353 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). In these circumstances, we must remand so that the agency may consider, on review, the IJ‘s finding that Huang and Qiu failed to prove past or a well-founded fear of future persecution. The BIA may choose to remand the case to the IJ for a credibility finding.

We dismiss Huang and Qiu‘s claims that incompetent translation and denial of an opportunity to testify at the deportation hearing violated their due process rights because these claims were not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004) (explaining that due process claims, procedural in nature, must be exhausted).

PETITION GRANTED in part; DISMISSED in part; REMANDED. Neither party to recover costs in this appeal.

Notes

2. In its brief, for example, the state argues that:

“[P]etitioner could have opposed the state‘s motion to dismiss, arguing that his case was not moot.... Indeed, [P]etitioner was obligated under the exhaustion doctrine to oppose the state‘s motion and then seek review on that basis by the Oregon Supreme Court.... If he had been successful, the Court of Appeals would have considered his claim on the merits. Accordingly, it was petitioner‘s own choice, not the state‘s actions or the absence of a corrective state process, that is the cause of his procedural default.”