Shahid v. Ashcroft , 398 F.3d 722 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0057n.06
Filed: January 25, 2005
Nos. 03-3374, 03-3375, 03-3376, 03-3377
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SYED SHAHID AHMED, BILQUIS SHAHID, )
SYED FERAZ AHMED, and SYED SHERAZ )
AHMED, ) ON PETITION FOR REVIEW
) OF A DECISION OF THE
Petitioners-Appellants, ) BOARD OF IMMIGRATION
) APPEALS
v. )
)
JOHN ASHCROFT, Attorney General of the United )
States, )
Respondent-Appellee.
BEFORE: NELSON, and COLE, Circuit Judges; SARGUS, District Judge*
R. GUY COLE, JR., Circuit Judge. This appeal presents the case of a Pakistani family
(“the Ahmeds”) whose application for asylum was denied by an immigration judge. Because we
find that the Immigration Judge’s persistent mischaracterization of the Ahmeds’ testimony biased
his decision against them as to both their credibility and their claims of past and likely future
persecution, we GRANT the petition for review, VACATE the decision of the Board of
Immigration Appeals affirming the Immigration Judge’s decision, and REMAND for a new hearing
before a different Immigration Judge.
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
Nos. 03-3374, 03-3375, 03-3376, 03-3377
Ahmed v. Ashcroft
I.
All of the members of the Ahmed family are citizens of Pakistan and members of the Urdu
ethnic minority (“Mohajirs”) that migrated to Pakistan following the 1947 partition of India and
Pakistan. They argue that they were persecuted in Pakistan on the basis of their ethnicity and their
political affiliation with the MQM-Altaf, a political party that represents Mohajirs.
The Ahmed family claims that members of the Sindh ethnic majority repeatedly came to their
home and business with false documents and claimed ownership of the property, and that they
illegally occupied it. The police provided little help on these occasions, although on occasion the
police removed the trespassers and put them in jail for a single night before freeing them. More
often, the Ahmed family had to remove the trespassers with the aid of neighbors. The police would
frequently solicit bribes from the Ahmed family as a condition to providing assistance. After a
series of alleged threats against the Ahmeds’ lives, including threatening telephone calls and an
allegedly politically-motivated attack on their cousin, the Ahmeds allege that some Sindhi occupied
their property and bulldozed the Ahmeds’ home and place of work. They claim the police took no
action while the Ahmeds were persecuted on the basis of their ethnicity and political affiliations.
The Ahmeds came to the United States in November of 1998 in order to get medical
treatment for Syed Feraz Ahmed, one of Mr. Ahmed’s sons, who had a serious eye condition. On
February 9, 1999 they filed an application for asylum and withholding of removal. An Immigration
Judge heard their case on December 6, 2001. At the hearing, the judge appears to have frequently
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misunderstood the Ahmeds’ testimony, becoming especially confused during the testimony of Mrs.
Ahmed, who goes by the name Bilquis Shahid.
The judge denied the Ahmed’s application, finding that Shahid’s lack of credibility had
destroyed “the credibility, basically of everything else that these people have presented.” The BIA
affirmed the judge’s decision without opinion on Feb. 10, 2003. See In re Ahmed, Syed Shahid, File
A77-432-187 (BIA Order of Feb. 10, 2003).
The Ahmeds now appeal the decision to deny their asylum application, on the grounds that
they were denied due process in their hearing before the Immigration Judge.2
II.
While we generally review BIA decisions under the “compelling evidence” standard from
Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992), we review decisions by Immigration Judges on
matters of removal for Fifth Amendment due process violations de novo. Castellano-Chacon v. INS,
341 F.3d 533, 552-53 (6th Cir. 2003). It is undisputed that petitioners in such proceedings are
entitled to an unbiased arbiter who has not prejudged their claims. See, e.g., Kaoru Yamataya v.
Fisher (a.k.a. Japanese Immigrant Case), 189 U.S. 86, 101 (1903) (stating that no person, even an
alien, “shall be deprived of his liberty without opportunity, at some time, to be heard . . . in respect
of the matters upon which that liberty depends”); Reno v. Flores, 507 U.S. 292, 306 (1993) (holding
that Fifth Amendment protections apply to aliens in deportation proceedings); Huicochea-Gomez
2
The Ahmeds also applied for voluntary departure in the event that the Immigration Judge
denied their application; this request was also denied but the Ahmeds do not appeal that decision
here.
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Ahmed v. Ashcroft
v. INS, 237 F.3d 696, 699 (6th Cir. 2001) (noting that the Fifth Amendment guarantees immigration
defendants a “full and fair hearing”); Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998).
However, we note that immigration judges do have broad discretion in conducting their hearings,
Mikhailevitch, 146 F.3d at 391, and that mere intimidation or interruption by a judge does not render
a hearing unfair. Ivezaj v. INS, 84 F.3d 215, 220 (6th Cir. 1996) (“[Even if there were evidence that
the immigration judge was overly abrupt or intimidating, petitioner has no right not to have [his]
feelings hurt by a no nonsense immigration judge.”), superseded by statute on other grounds as
stated in Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004). Despite this, it should also be noted
that “the administrative findings of fact [of an Immigration Judge] are conclusive unless any
reasonable adjudicator would be compelled to find to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Therefore, ensuring due process at a hearing
before an immigration judge may be particularly important in immigration cases given such a high
presumption of correctness on appeal.
Like other hearings regarding deprivations of liberty interests, immigration hearings “need
not be upon a regular, set occasion, and according to the forms of judicial procedure, but one that
will secure prompt, vigorous action contemplated by Congress, and at the same time be appropriate
to the nature of the case . . . .” Mikhailevitch, 146 F.3d at 391 (citations omitted). However, due
process for an alien in an INS proceeding consists of at least “a reasonable opportunity to examine
the evidence against him, to present evidence on his own behalf, and to cross-examine witnesses
presented by the Government,” Id. (statutory citation and quotation omitted), and this Court has
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held that the Fifth Amendment requires a “full and fair hearing” of such evidence. See Huicochea-
Gomez, 237 F.3d at 699. As a result, a hearing where an immigration judge cannot be said to have
fairly considered the evidence presented by the petitioners is one where those petitioners have been
deprived of due process. See, e.g., Amadou v. INS, 226 F.3d 724, 727 (6th Cir. 2000) (holding that
where a translator prevented an Immigration Judge from understanding the evidence presented, due
process had been violated); Gonzalez v. Zurbrick, 45 F.2d 934, 936-37 (6th Cir. 1930) (same). Cf.
Board of Regents of State Colls. v. Roth, 408 U.S. 564, 573 n.12 (1972) (noting that the purpose of
the required hearing in another liberty interest context is “to provide the person an opportunity to
clear his name.”).
In cases where petitioners in immigration cases did not receive a fair hearing, this Court has
previously ordered new hearings before new Immigration Judges. See, e.g., Amadou, 226 F.3d at
727; Gonzalez, 45 F.2d at 936-37; see also Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir. 2000).
In addition, we have questioned immigration judges’ decisions when they are based on both
misunderstandings of translators and of testimony clearly presented by petitioners. See, e.g.,
Daneshvar v. Ashcroft, 355 F.3d 615, 622-23 (6th Cir. 2004).
In the instant case, the immigration judge found the Ahmeds not credible on the basis of
numerous misunderstandings of their testimony. For example, one two-page-long exchange between
the judge and Shahid started with the judge misstating Shahid’s testimony by telling her that her
answer to a question he had asked regarding an attack on her mother-in-law was “1998,” when it had
actually been “1978,” and then confusedly questioning her about this until she finally was able to
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inform him that she had been correct initially. Despite the fact that Shahid had always testified
consistently that her mother-in-law was attacked in 1978 and died in 1982, the immigration judge
later held this against her in his credibility findings, claiming that “[l]ater there was a vast confusion
about when the mother-in-law might have died.” This is just one example of the numerous
misunderstandings that developed between the judge and the Ahmeds.
The judge’s misunderstandings were not limited solely to Shahid’s testimony. When the
judge inquired whether the Ahmeds had complained about harassment by a political party, he asked
“Did you go, or did your wife go?” Mr. Ahmed replied “I am going.” The judge then asked “Your
wife didn’t go?” and Mr. Ahmed responded “No. She is going with me. Yes, she is going with me.”
Yet the court later stated that Mr. Ahmed at first had claimed his wife had not gone and that he had
later changed his answer, proceeding to find that Mr. Ahmed’s testimony was thus “replete with
lies” and finding him to lack credibility, despite the fact that any confusion over who had gone to
complain was due to a mere misunderstanding between the judge and Mr. Ahmed. Again, this is
just one example of how the “inconsistencies” and “contradictions” on which the judge based his
determinations that “none of the respondents are credible witnesses” were due to his own
misunderstandings. And “instead of attempting to reconcile the discrepancies, the [Immigration
Judge] simply, and unjustifiably, assumed that there was an inconsistency. . . .” Id. at 623 n.8.
While there is no evidence that the judge intentionally confused the witnesses, as the Ahmeds
claim, it is clear that the judge himself created much of the confusion, as well as many of the
contradictions and inconsistencies in the record, and then held all of this against the Ahmeds. The
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record reflects that Mr. Ahmed and his two sons testified consistently with each other and attempted
to explain to the judge that Shahid had been confused. Rather than recognizing that he had been the
cause for much of Shahid’s confusion, the judge cited the confusion as his main ground for his
finding that Shahid, as well as the rest of the Ahmeds, lacked credibility.
Beyond these exchanges where the immigration judge himself was confused by testimony,
sometimes holding his own mishearing against the Ahmeds, it is not clear that there is a sufficient
basis for the judge’s finding of poor credibility. For example, the judge noted that when the older
son was asked how often elections are held he responded “I think every 4 years.” From this the
judge concluded “[a]ccordingly, this person just like his parents tended to make up things when they
don’t know.” Cf. id. at 623 (“If discrepancies cannot be viewed as attempts by the applicant to
enhance his claims of persecution, they have no bearing on credibility.” (citation omitted)); Sylla
v. INS, 388 F.3d 924, 926 (6th Cir. 2004) (holding that “minor and irrelevant inconsistencies cannot
constitute the basis for an adverse credibility determination,” and that such “variations,
misstatements, or inconsistencies should have played no part in the decision of the Immigration
Judge or BIA.”).
In the end, the immigration judge found that Shahid was “completely flummoxed,” and that,
due to her confusion, she had destroyed “the credibility, basically of everything else that these
people have presented.” In denying the Ahmeds’ asylum application he additionally found that “the
two primary respondents in this case, the husband and the wife, are just flat out not credible,” while
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referring to only one statement (by Shahid) that was not a misunderstanding or inconsistency of the
Immigration Judge’s own creation.
As a result, the Ahmeds did not receive a meaningful hearing of their case. This case falls
under the same principle that previously caused this Court to find that problems with an interpreter
denied the petitioner a fair hearing. Amadou, 226 F.3d at 727. In Amadou, the Board was on notice
that there was a problem with the interpreter due to several statements the interpreter made
indicating that he was having trouble understanding Amadou. We found that this misunderstanding
prejudiced Amadou because the judge denied Amadou’s application based on the testimony at the
hearing. We concluded, under these circumstances, that an alien is denied a full and fair hearing
when he is ordered deported based upon unreliable translation, because the immigration judge could
not understand the testimony Amadou was presenting to the court. Id. at 728.
Here, although the misunderstanding of testimony was by the judge rather than the
interpreter, the underlying concerns are the same. The judge recognized and stated early on that he
was having difficulty understanding Shahid’s testimony. Despite this fact, he largely based his
denial of asylum on credibility findings based upon confused exchanges which were instigated by
his own failure to understand correctly the Ahmeds’ answers to his questions.3 Indeed, in his oral
3
In an alternate holding, the immigration judge stated that even if he had believed the
Ahmeds’ story, they still were not eligible for asylum. However, this alternate ruling is undermined
by the judge’s confusion regarding the Ahmeds’ testimony; we cannot say that the judge could fairly
be said to have understood exactly what the Ahmeds’ story actually was. (Indeed, he noted that
“[b]ecause of the shifting nature of the stories in this case, it is almost impossible to distinctly
summarize exactly what the claims of the [Ahmeds] are.”) As a result, the alternate holding
likewise results in a remand on due process grounds, since the judge’s actions denied the Ahmeds
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decision the judge only noted one instance where he may have misheard Shahid (confusing
“months” with “weeks”), while basing his adverse credibility finding on numerous other
misunderstandings that he failed to recognize were at least partially his own creation.
III.
Therefore, the proper remedy for this due process violation is to give the Ahmeds an
opportunity to have their case heard fairly. See, e.g., Amadou, 226 F.3d at 728. We therefore
GRANT the petition for review, VACATE the decision of the BIA and REMAND this case with
instructions that the Ahmeds be provided with a new hearing before a different immigration judge.
the chance to ensure that the facts of their case were properly considered in a full and fair hearing.
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