*1 of other as the assurances ings as well that the investments
public officials
safe. we of the entire record
From our review genuine that there are is- persuaded
are fact as to what of material
sues standard, industry whether
appropriate and, with that standard
Ough complied complied he importantly,
more whether controlling expansive
with the more and as to prudence, of reasonable
standard investigative and disclosure re-
both his There is also an issue
sponsibilities. any departure by him from the
whether was so extreme as
applicable standard of scienter under the
satisfy the element regula-
securities antifraud statutes 1564, 1568- Hollinger,
tions. See the district Accordingly, we reverse summary judgment
court’s and remand proceedings.
further REMANDED.
REVERSED and
Quirino Canedo OCHAVE Ochave, Pagador
Petitioners, AND
IMMIGRATION SERVICE,
NATURALIZATION
Respondent.
No. 99-70739. Appeals,
United States Court
Ninth Circuit. April 2001*
Submitted
Filed June * 34(a)(2). R.App. panel unanimously P. finds this case suitable argument. without oral Fed. for decision *3 California, Wood, Angeles, L.
Judith Los petitioners. for the Division, Candaux, Of- Mary Jane Civil Immigration Litigation, fice of United Justice, Department Washington, States D.C., respondent. for the FERNANDEZ, PREGERSON, Before: GRABER, Judges. Circuit GRABER; by Opinion by Judge Dissent Judge PREGERSON.
GRABER, Judge: Circuit (Felicitas) Petitioner Ochave husband, Quirino Petitioner and her citi- (Quirino), who are natives and Ochave asylum and Philippines, sought zens deportation. Their claims withholding of and denied consolidated for (IJ). review, immigration judge On (BIA) Immigration Appeals the Board of affirmed the IJ’s decision. Petitioners that wе seek review. For the reasons below, petition for deny we discuss part part. it in review in and dismiss OF REVIEW STANDARD for substantial evi We review peti- that a a factual determination dence claims for or other eligibility failed to demonstrate Petitioners’ has tioner 1105a(a)(4). dependent § relief both are on the claim of 8 U.S.C. claim, turn, evidence, Felicitas. Her is based on substantial reviewing for When that, 1986, and her she findings unless uphold the IJ’s we must raped by armed men. daughter were two only supports, but com the evidence not application, In her she asserted contrary findings. INS v. Elias-Za pels, carias, 1, of a two were members Marxist 481 n. S.Ct. 502 U.S. (1992). Where, People’s guerrilla organization, the New as L.Ed.2d Army, and that attack was on account here, simply adopted BIA the IJ’s imputed political opinion arising of an from it findings reasoning, is the IJ’s deci position “Municipal her father’s Coun- evi sion that we review substantial *4 INS, region Philippines: in their of the selor” Singh-Kaur dence. 183 F.3d (9th Cir.1999); 1147, Lopez-Reyes v. My employed by govern- father was (9th Cir.1996). 908, year rape ment occurred. raped my daughter
The two men who I guerrillas and were members of the AND PROCEDURAL FACTUAL trying gov- who were to overthrow the BACKGROUND title, my a ernment. Because father had Ochave, Quirino husband and Felicitas Counselor”, “Municipal my family was wife, and citizens of and are natives being reactionary in viewed as Philippines. They lived with their four eyes guerril- Marxist of the Communist Pangasinan, in a town in children small las. province Philippines. application contained no information Quirino ship. a cook on a In worked as why concerning Felicitas believed that the ship docked in Texas. August his rape politically motivated. using He States a 29- entered United hearing, At the she was asked about her day pass, crew member’s and he remained believing reasons for that there awas con- month, following here. The Felicitas en- nection and testified as follows:1 tered the on a visitor’s visa. United States Q. you Do have at all of notion stayed Their children in Manila with four why guerrillas might raped Felicitas’ brother. After Felicitas’ visa ex- you? Quirino pired, with in the she remainеd they A. Because wanted to have lead- United States. ership region. deportation In the INS initiated Q. Why rape give would a them lead- and, Quirino sepa- proceedings against ership, raping you particular? rately, They against Felicitas. admitted market, A. coming We were from deportability requested asylum, but with- my daughter. me and We were holding deportation, voluntary depar- of heading home late about afternoon. ture, suspension deportation. or Their We encountered two men. consolidated for a on hearing cases were the merits. >jj s}: >si ble, testimony dramatically IJ found Felicitas’ at the because it differed from a credible, application to be so we take testimo- number statements his ny purposes petition challenge as true for of this Petitioners do not Quirino review, hearing. credibility finding review. also testified at the on and we there- Quirino’s testimony. The IJ found that his was not credi- fore do not consider walking two women alone hack Q. happened? So what the market? from shouting, shouting They A. started they pulled they wanted us so A. job ap- That is their whenever dusk rape and then the occurred. us pears they people. comes harass Q. they they rape us ex- Did Q. Okay, people anything —did —tell did these do happened.
actly what say they going other than us, rape you? lie down They pulled A. asked us to they what want—(cid:127) they аnd told us A. They would kill us we would if they us. We could not want report this to the authorities. They pro- anything do to be free. Q. just random act It was vio- they wanted to to do what ceeded lence? it. do and that is what started Maybe. A. raping you Q. they completed After Q. Okay, you peo- and said that other say your daughter, they did ple being raped ivere also you? anything to threatened? A. Yes. Yes, *5 A. there are occasions.
Q. they say? did What added.) (Emphasis They they getting A. said are satisfied they get. wanted to what Felicitas also testified that she did not attack, rapists that know the before (cid:127)t' sfc identify any in they did not themselves Q. you guerrillas] [the How did know attack, they and that were way during the in hiding? were mountains,” not from “people from the go not They they A. do do not— town which she lived. She further testi- or it’s daylight town when it’s broad (or fied that she saw the once not when light. They only go to town all) without rape, apparently at after the it’s dawn or dusk. them.2 any passing words between Q. you comings know their and How do rape, moved from her After the Felicitas goings? her children town to Manila. She and taking place A. That is what there incident, there, nearly without for a lived things a lot like that. and there is of came to the United States. year before she Q. you say there are a lot of When application for rejected The IJ Felicitas’ that, you are talk- things like what (and Quirino’s applica- asylum derivative ing about? First, tion), the IJ con- for two reasons. only they raped. A. us had It was had not established cluded that Petitioners people There were a lot also who of pro- a and a connection between raped. were Although Felicitas made ground. tected $$$$$$ po- governmental reference to her father’s sition, Notv, any connection” Q. you were she “did not make why you do think rape. just that fact and the singled rape? out Was it between for once, again, perhaps had them application, stated that she them seen In her Felicitas discrepancy rape. "everyday” after the after the The IJ noted had seen her attackers that Felici- rape. hearing, and credited the version of events At the she recanted that state hearing. presented that she had seen tas ment and testified never alternative, the documents be- dent’s assertion from Second, the IJ relied relo- fore us. voluntary and successful Felicitas’ on denying a for ground Manila as cation to however, event, Quirino’s In Manila, she had lived Because of Felicitas’ claim for is derivative incident, year nearly for before without applications were consolidat claim. Their States, the IJ con- the United coming to appli appeal. on Both ed for cluded, had not established wheth stand or fall on the cations persecution future fear of
well-founded
rаpe,
daughter
Felicitas and her
er the
of
Philippines.
imputed political
“on account of’ an
Quirino and
his conclusion that
Based on
here,
Where,
opinion.
the IJ and
failed to establish the
Felicitas had
applications
asy
spouses’
BIA address
that
asylum,
the IJ concluded
grounds
appeal.
lum
we do the same on
together,
had failed to meet
they necessarily
1069 n.
Chand
for with-
proof required
higher standard
(9th Cir.2000).
circumstances, Re
In the
deportation.
holding
peti
spondent’s argument
single
to confer
tion for review is insufficient
suspension
respect
Finally, with
petition
ar
jurisdiction over Felicitas’
—an
found that Felicitas
deportation,
the IJ
Respondent offers nо
gument for which
continuously in
Quirino had resided
authority
not well taken.
—is
they
had
since
the United States
character,
good moral
demonstrated
Asylum
B.
they
and that
had no
they
employed,
found,
The IJ also
how-
1. Past Persecution
history.
criminal
ever,
they
not demonstrate
could
outset,
catalogue
At the
it is useful to
*6
hardship” if
they
suffer “extreme
would
what
not at issue:
is
a
is re-
they
deported,
showing
were
that
(1)
may apply
A husband
for
1229(b).
§
For that
quired under 8 U.S.C.
beneficiary
appli-
of his wife’s
a derivative
reason,
the
declined to exercise his
IJ
1158(b)(3).
§
cation. 8 U.S.C.
depor-
a
grant
suspension
discretion
tation.
(2) Rape
the kind of infliction of
is
suffering
may support
or harm that
a find
review, the BIA affirmed the IJ’s
On
provided thаt the
ing
past persecution,
adopted
findings
his
and rea-
decision and
rape
applicant demonstrates that the
soning.
granted voluntary
The BIA
de-
protected
statutorily
on account of a
parture
appeal.
and dismissed the
imputed political opin
ground, such as an
timely petition
This
for review followed.
INS,
v.
99 F.3d
Lopez-Galarza
ion.
Cir.1996).
(9th
958-59
DISCUSSION
(3) Petitioners bear the burden of estab-
here,
A. Jurisdiction
lishing
eligibility
asylum;
their
they
establishing
the burden of
bear
matter, Respondent
a threshold
As
rape
imputed
was “on account of’ an
argues
jurisdiction
that we lack
over Feli-
208.13(a).
§
political opinion. 8 C.F.R.
review,
Petition
petition
citas’
because
(4)
rapists
single petition
a
for review in
Felicitas testified
ers filed
Quirino’s
guerrillas.
ques-
The IJ
only.
petition
name
for re were Marxist
testimony,
part
appeal
on
tioned the basis for that
but
view is not
of our record
and,
on another
verify Respon-
ultimately resolved
case
accordingly, we cannot
title,
review,
my
Because
father had
we ac-
ernment.
purposes of
For
ground.
Counselor”, my family was
“Municipal
assertion
cept Felicitas’
reactionary
being
viewed as
guerrillas.
guerril-
eyes
Marxist
Communist
(5)
consider evi
The IJ must
las.
application for
in Felicitas’
dence contained
together
that statement
with
We consider
required; an
Testimony is not
at the
determin-
if
application,
may rest on her
applicant
finding
whether the IJ’s
Peti-
ing
—that
hearing that
the con
at the
she swears
required
tioners failed to demonstrate
are true. Grava v.
application
tents
protected
and a
nexus between
Cir.2000).
(9th
INS, supported by substantial evi-
ground —was
(6)
avail
Asylum generally is not
dence.
strife,
they
civil
unless
able to victims of
that Feli
argue
Petitioners do not
protected
account of a
singled
are
out on
actually
persecuted
citas was
because she
way, “persecu
it
put
To
another
ground.
expressed
political opinion
held or had
...
political opinion
on account of
tion
They
to the guerrillas.
that was offensive
merely from acts of
be inferred
can[not]
imputed re
argue only
guerrillas
village
of a
by members
random violence
her,
all
actionary opinions to
and to
other
against
neigh
their
political
or
subdivision
family,
of her
because her father
members
divergent
not have
may may
who
bors
imputed
“An
government.
worked for
views;”
Sangha
political
...
opinion
political opinion
is a
attrib
political
Cir.1997).
(9th
1482, 1487
persecutors.”
applicant
uted to the
his
Sangha,
by guerrillas happened to “a lot
(b) There is
evidence
affirmative
(6) the
did not continue to
guerrillas
and
suggesting that the rape was
rape,
harass Felicitas after the
or commu-
a random act
violence.
any way,
sug-
nicate with her in
so as to
Even were we to conclude that the ra-
purposeful
that this was a
attack with
gest
pists imputed reactionary politiсal opinions
motive,
political
despicable
a
rather than a
Felicitas,
finding
rape
the IJ’s
against
act of unmotivated violence
a
was not “on
opinions
account of’ such
still
stranger.
would
supported by
be
substantial evi-
guerrillas
Whether or not the
dence. When we consider the
record as
believed,
whole,
as a
there is evidence that
the attack
People’s Army
general
New
matter,
politically
was not
family
Municipal
of a
motivated. As detailed
that
above, Felicitas
that
guerril-
testified
reactionary,
the fact re-
Counselor was
las, unfortunately,
raped others as well
nothing
that
mains
there is
this record
they
when
ventured into town from the
knеw,
rapists
even to hint
at the
mountains
might
the attack
rape,
time of the
that Felicitas and her
been
random act of violence. The ra-
daughter were members of that reaction-
pists were not from her town and did not
contrast,
ary family. By
in cases in which
They
know Felicitas.
said nothing to her
rapes
this court has found that
occurred
before,
politics
during,
about
or her father
imputed political opin-
“on account of’ an
rape.
or after the
ion,
the evidence was clear
(1)
specific identity
of their vic-
knew
question
We do not
the horrific nature
(2)
tims;
imputed political opinions
of what Felicitas and her daughter suf-
example,
Lopez-
those victims. For
sincerity
fered. Nor do we
Galarza,
neighbor
the victim’s
accused her
belief,
subjective
Felicitas’
stated in her
“supporting
the counter-revolutionary
application,
politically
contras”;
result,
arrested,
as a
she was
motivated. But we cannot conclude that
*8
imprisoned,
raped.
and
childhood,” rapist during and the stated summary, In because we are not rape the that the attack was on account of compelled to find on this record that Peti political the activities of the victim’s hus- tioners established connection between band. rape protected the and a ground, we must father, political opinions, or asy- her or his petition for their the denial of uphold rapists might political opinions lum.3 imputed to her. the Record Sufficiency C. sum, opportuni- In Felicitas had several on review that argue Petitioners rapists testify to about what ties both process rights their due the IJ violated explain why to she be- said to her and attempts to have Feli- frustrating counsel’s lieved, appli- at the time she submitted rape. circumstances of the explain citas rape was “on asylum, cation for that the claim, jurisdiction to review lackWe opinion. imputed political an account of’ raise it before Petitioners did not because circumstances, we could not con- In the in an raise an issue the BIA. “Failure to directing her not clude that the IJ erred BIA constitutes a failure appeal to the leading ques- above-quoted to answer the respect to that remedies with exhaust tion, raised this even if Petitioners had juris this court of deprives and question BIA. issue before the Vargas, matter.” diction to hear the 907-08. D. Persecution Future nonetheless, observe, that most We aftеr to Manila moved Felicitas to which the IJ sustained questions as and her children lived raped. was She she pertained to the interposed objections or incident, there, nearly year without rapists guerrillas. That identity of the States. As coming to the United before record, in the elsewhere fact is established noted, Felicitas’ successful the IJ relied on accept it as true. and we ground deny relocation as an alternate exception was the significant ing objection4 an to the decision to sustain IJ’s applicant’s of an reasonableness “[T]he testi during Felicitas’ following question home coun in his or her ability to relocate mony on direct examination: Attorney try may be considered your father Q: any mention of Was denying granting or General’s discretion during rape? made Singh relief.” v. asylum as a form of Felici- question, and after that Both before (9th Cir.1995); Ilchert, 63 F.3d rape accounts of the gave tas detailed also, Aguirre-Cervantes e.g., see open-ended questions. She response to Cir.2001) (in (9th 1169, 1180 hold at least twice what was asked to rebut the that the INS had failed ing said, in her answers did not mention persecution, presumption of future politics. her father not that “the record does court stated opportuni- Additionally, Felicitas had petitioner any evidence contain rape, in for the ty explain the reason Mexico”). within reasonably relocate could open-ended three response to at least Here, is that unrebutted evidence open- responding In to those questions. could, family only but Felicitas and her did not mention questions, ended grounds that objection was made on the argue on review 4. The for the first time 3. Petitioners topic leading of” Felicitas’ was “on account membership group of women of in the "social already covered. had been *9 nationality.” jurisdiction to re- We lack issue, Petitioners did not view that because INS, Vargas 831 the BIA. raise it before 906, Cir.1987). (9th 907-08 868
did, Philip.- successfully Immigrant Responsibility within the form and Act of relocate (IIRIRA), 104-208, not 1996 Pub.L. No. 110 pines. challenge Petitioners do 1996). 30, INS, (Seрt. ground alternate for denial on review. Stat. 3009 Kalaw v. IJ’s (9th Cir.1997). 1147, ground sup- That alternate for denial is 133 F.3d Sec- 309(c)(4)(E) IIRIRA, evidence.5 tion of the which is ported by substantial rules, part that of the transitional states Withholding Deportation E. appeal of “there shall be no of discretion- ary ... decision under section of the withholding for of
The standard Immigration Nationality Act.” That deportation stringent more than the provision “operatefs] judi- to remove direct standard for Because Petitioners cial review of BIA determinations of ‘ex- satisfy asylum, do not the standard for ” Kalaw, hardship.’ treme 133 F.3d necessarily satisfy fail to the standard they 1152. deportation. Ghaly v. withholding for of (9th Cir.1995). 1425, 1429 Accordingly, jurisdiction we lаck to re- finding view the IJ’s that Petitioners
F. Suspension DepoHation of would hardship not suffer extreme if re- Attorney The General has discretion to Philippines. turned to the grant application suspension for alien’s G.Voluntary Departure if deportation
of the alien satisfies the physical presence,” “good “continuous Although it deportation, ordered character,” hardship” moral and “extreme BIA granted opportunity Petitioners the 1229(b). Here, § requirements of 8 U.S.C. voluntary departure. Respondent does request the IJ denied Petitioners’ for sus- ruling, so it will remain challenge pension deportation ground of on the in effect. they requirement had not satisfied hardship.” “extrеme CONCLUSION Because Petitioners’ cases com findings jurisdiction that we have 1997, April menced and the final supported by before to review are substantial ev- However, deportation May order of was entered on idence. juris- we do not have 26, 1999, suspension requests their of diction to review regarding the decision governed by suspension Therefore, are deportation deportation. transi Illegal Immigration petition tional rules of the Re- for review is promulgated hearing INS has a new adminis- Petitioners' before the ef- held rule, 5, 2001, Januaiy trative effective which applies fective date of that rule. If the rule on regulations concerning per- amends its future review, argument it bolsters the that Felicitas' secution. The amended rule states presumption successful relocation rebuts the may presumption INS rebut of future persecution. applied of future This court has persecution by showing by preponderance one, the amended rule in a case like this (1) country evidence conditions hearing place where the took before the rule's (2) changed applicant "could Aguirre-Cervantes, effective date. See persecution by relocating avoid future to an- However, applied F.3d at 1179-80. the court part applicant's country other of na- explicitly the rule in that case without ad- and, circumstаnces, tionality ... under all the dressing question whether the rule could expect applicant it would be reasonable to applied be on review when the oc- Procedures, Asylum Fed.Reg. to do so.” curred before its effective date. Nor need we 76,121, 76,133 (Dec. 2000) (to be codified here, address that because we re- 208.13(b)(l)(i)(A) (B), §§ at 8 C.F.R. & petition ground. solve the on another 208.13(b)(l)(ii)).
869 who shows she applicant in An part and DISMISSED DENIED imputed politi- “on account of’ persecuted part. asylum.2 opinion a claim for cal has stated states, “imputed majority correctly As the PREGERSON, Judge, Circuit political opinion attrib- political opinion is dissenting: by persecutors.” his applicant uted to the (9th 1482, INS, F.3d 1489 Sangha v. 103 the is whether this case inquiry Cir.1997). seeking prove A to rape victim supported Judge’s decision is Immigration im- account of’ attacked “on that she was my opinion, In it by substantial evidence. present some political opinion “must puted in Felicitas not. The statements circumstantial, evidence, or direct application, combined asylum Ochave’s v. Lopez-Galarza persecutor’s motive.” testimony hearing, at the with her credible (9th Cir.1996) (em- INS, 954, 99 F.3d 959 that Feli- conclusion: compel opposite the added). phasis for eligibility citas has established Ochave by Felicitas presented The evidence Ac- past persecution.1 asylum based on asylum ap- attаched to her the declaration I dissent. cordingly, In her this standard.3 plication satisfies (en INS, 732, (9th Cir.1999) 734 past 175 F.3d asylum may be based on “Eligibility for INS, ('NPA') banc) (“The People's Army is a F.2d New v. 984 persecution alone.” Acewicz Cir.1993) 1056, (9th violent, (citing group revolutionary Matter 1062 Communist of Chen, (BIA 1989)). 4 Where Philippine govern- Int. Dec. 3104 at actively opposes the which past applicant can she has the show histo- The NPA has a well-documented ment. persecu- violence, forms of “suffered under atrocious including murder ry political the of tion,” asylum eligible even applicant is the opponents.”). itsof persecu- likelihood of future if "there is little dispute that majority does not Because the (citation quоtation and internal Id. tion." of her the first two elements Felicitas has met cases, omitted). the court In such marks claim, only wheth- asylum the third: I discuss questions that relate reach "factual need not a nexus between er Felicitas has established country] political native [the to the climate statutorily and a persecution she suffered the per- may impact the likelihood of future as it ground. protected petition for grant the secution” to 954, INS, (9th 959 Lopez-Galarza v. notes, majority correctly Felicitas's 3.As Cir.1996). supporting application and attached asylum alone, declaration, standing to are sufficient eligibility asylum based on 2. To establish asylum based that she is entitled tо establish persecution, applicant must show past C.F.R. past persecution. 8 on (1) things: happened to her rises what three 240.49(c)(4)(iii). observed § We have (2) persecu- persecution; to the level testify on his [asylum] applicant need not "an government by the either tion was committed may rest on behalf ... and or her own government was unable forces that the or alone, subject examination application to INS control; (3) persecu- unwilling to or hearing.” v. Grava statutorily protect- “on account of” a tion was added). Cir.2000) (9th (emphasis INS, 222 F.3d ground. Chand v. ed Indeed, that credible we have held (9th Cir.2000). record demon- probative than an applications may more be each of has satisfied that Felicitas strates Immigration applicant's before requirements. these Judge. applicant or While "either inflicts suf- is no There oral testi- government may desire additional finding past support a fering sufficient credibility,” dispute mony to bolster Lopez-Galarza, F.3d at 959 persecution. not limited asylum claim is omitted). evaluation of an (citation any question there Nor is at 1181. hearing testimony alone. Id. mem- raped Felicitas were that the men who applicants face at many ("NPA”), difficulties “Given the People's Army New bers of the diffi- hearings, ranging translation from Philippine their group guerrilla militant facing overwhelming anxiety of Borja culties to to control. government was unable *11 statement, which the Immigration satisfy impossible sworn cant must this evidentia- credible, be Judge ry found to Felicitas de- standard.
clared that: majority The also cites Felicitas’s testi- in in raped Philippines I was mony deportation at the hearing provid- my daughter and I and both suffered ing an additional basis for rejecting her tremendously as a result of this event. asylum Specifically, claim. the majority raped, was also My daughter at opportuni- concludes “Felicitas had My same time.... was em- father ty explain to rape reasons for the ployed by government year in the response open-ended to questions” at the rape that the occurred. The twо men hearing and failed to do so. This conclu- daughter raped my who and I were First, ignores sion two critical facts. Feli- guerrillas members who [NPA] citas’s at testimony hearing —which trying govern- were to overthrow the Immigration Judge found credible —cor- my ment. Because had the title father ipade roborated the statements she in her ” Counselor, “Municipal my family was asylum application. Felicitas testified that being reactionary viewed as daughter she and her raped by guer- were eyes guerril- Marxist the Communist rillas, explained and she rape might .... I think I las be found occurred “they because wanted to have raped the men who me and I fear that leadership in region.” Felicitas alsо they might try kill me having father, testified that she govern- told her divulged their awful secret to the world. official, ment rape. about the The Immi- Philippine government has little or gration Judge, stating the basis for his no control over the guerril- eommunist[ ] credibility favorable finding, observed that: las who the people terrorize and the (1) Felicitas’s was “generally people have become victim in the with provided consistent the information struggle power. (2) asylum application”; her Felicitas had added). subjected been (emphasis “extensive cross exami- (3) nation,” and she “had a good recollec- majority finds that the statement tion of dates and time-frames for various excerpted above fails to establish a nexus incidents.” rape between the and Felicitas’s father’s political opinion. According majori- to the Second, the majority’s conclusion that ty, declaration Felicitas’s is insufficient be- give Felicitas failed to a sufficiently de- “[tjhere cause is no evidence to suggest explanation tailed of the events surround- rapists that the knew who Felicitas was— ed deportation much that they less knew who her father ignores the fact that attorney the INS was—at they raped the time her and her the Immigration Judge repeatedly pre- daughter.” This conclusion suggests that vented her from answering questions de- satisfy proof Felicitas could her burden of signed to elicit that information. only by testifying explicitly you Counsel: How did know these men before, informed during, rap- or after her — raped you] guerrillas? [who ing her—that she had singled been out because of political position. Attorney: her father’s Objection, INS Your Honor. We have never held that an appli- a leading question That’s deportation, (BIA asylum application 20 I. Fefe, & N. Dec. 116 Matter sometimes 1989)) added).
represents (citing (emphasis an alien’s best case." Id. know, you If did these men Counsel: Objection sustained.... IJ: any- affiliation kind of with your fa- *12 any mention of Was Counsel: one? rape?.... during made the ther Attorney: Objection. That’s lead- INS well, ing as Your Honor. Attorney: Objection, leading. INS Objection sustained.4 IJ: question. Do not the Strike IJ: answer say peo- you When other Counsel: the question, strike answer the raped by guerrillas, were the how ple rephrase. you know that? did Attorney: Objection. mis- INS That’s anyone the you tell about Counsel: Did Your Honor. stating testimony, rape? It Objection is mislead- IJ: sustained. the the and strike IJ: Strike ing testimony. Do not answer the question. Re- leading answer. It’s question, ma’am. phrase. ... Immigration Judge’s multiple, sua objections Felicitas’s sponte to counsel’s two you think that these Counsel: Did questions “leading” as and his open-ended the raped you] part [who men sustaining objections similar from the INS guerrillas? attorney effectively frustrated Felicitas’s leading It’s a question. IJ: Strike the detail, present directly, or аbility fully “to very question. question. It’s critical asy her claim supporting account her Rephrase question. the v. F.3d 732 lum.” 208 Jacinto (9th Cir.2000); Chand, 222 F.3d at see also who you any Did idea Counsel: (“The duty, Immigration Judge had a 1075 raped you] two were? [who these men applicant], with to ascertain [the shared question. asylum the It’s a to Do answer the information relevant the IJ: development and to aid in the claim I leading again caution question. record.”).5 putting rephrase. You’re counsel to respondent. ease, of the
words the mouth re- Immigration Judge In this asylum application, Felicitas’s Rephrase, viewed please. JUDGE, Refugee Determining and Criteria for IN MAKING dures 4. THE IMMIGRATION ¶ 196). SPONTE OBJECTIONS AND SUSTAIN- SUA Refugee Convention under Status OF INS AT- THE OBJECTIONS THE ING Immigration obligation, fulfill this To TORNEY, CHARACTERIZED COUNSEL’S "interrogate, empowered exam- Judge is to QUESTIONS "LEADING." IN MYOPIN- AS ine, the alien and and cross-examine ION, NOT THESE OBJECTIONS WERE INS, 228 v. witnesses.” Shoafera QUESTION IS A LEADING WELL-TAKEN. (9th Cir.2000) (quoting 8 U.S.C. QUESTION AN- SUGGESTS THE THAT "[A] 1229a(b)(l)). Although majority cor- § TO BEING INTERRO- SWER THE PERSON jurisdiction lack to rectly concludes that we BLACKS LAW DICTIONARY GATED.” (7th claim, process it is ed.1999). Felicitas's due review questions of the None attorney pro- were suffi- noting was asked her we have found a due Felicitas worth "suggest ciently specific as or obvious to Immigration Judge where an cess violation' answer.” pres- applicant opportunity to denied regarding asylum ent relevant evidence adjudicator to role 5. "[T]he claim, Immigration Judge's ac- because the presents applicant his case 'ensure to ensured that "information crucial tion fully possible ev- as ” and with all available undisclosed.” Jacin- remain[ed] future Jacinto, [her] 732-33 idence.’ 208 F.3d at to, F.3d at Proce- (quoting the Handbook on UNHCR clearly statutory which basis for stated Indeed, he found
her claim. Felicitas’s America, UNITED STATES of part credible because Plaintiff-Appellee, it “consistent with information provided asylum application.” in her At hearing, opportunity he had the PIERRE, Jr., Thomas Andrew examine, and interrogate, cross-examine Defendant-Appellant. probe the assertions in her
application regarding the nexus between No. 00-30135. political her and her father’s beliefs. Appeals, United States Court Immigration Judge did not take that Ninth Circuit. more, opportunity. What is he blocked bring Felicitas’s counsel’s efforts to out 8, Argued and Submitted March application crucial information in the re- garding rapes the nexus between Filed June position by political held Felicitas’s Philippine government. father We an Immigration that where held
Judge any testimony fails to “elicit[ ] from demonstrating that applicant]
[the the na- testimony
ture or for her ques- basis was
tionable,” summarily he cannot dismiss her testimony incomplete specu-
credible
lative. Shoafera (9th Cir.2000). think important
While I it is to highlight any perceived gaps reasons behind her hearing,
Felicitas’s I do perceived gaps believe those un- validity
dermine the claim. asylum appli- statements Felicitas’s
cation, combined with her credible
testimony, raped establish that she
guerrillas on politi- account of her father’s beliefs, imputed
cal which they to her. I think compels
Because the record past per-
conclusion that suffered imputed political
secution on account of
opinion, I would reverse the decision of the
Immigration Judge and find that Felicitas eligible for a discretionary grant of asy-
lum.