Dabo v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION JAN 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAN BALA DABO, No. 05-72685
Petitioner, Agency No. A096-342-763
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 11, 2009
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Dan Bala Dabo, a native and citizen of Nigeria, petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration
Judge’s (“IJ”) denial of his application for asylum, withholding of removal,
protection under the Convention Against Torture (“CAT”), and voluntary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
departure. We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant in part,
deny in part, and remand.
The BIA denied Dabo’s asylum claim as untimely. However, “[w]here, as
here, the government alleges an alien’s arrival date in its Notice to Appear, and the
alien admits the government’s allegation before the IJ, the allegations are
considered judicial admissions ‘rendering [the arrival date] undisputed.’” Cinapian
v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009) (citing Hakopian v. Mukasey, 551
F.3d 843, 846 (9th Cir. 2008)). Dabo admitted each of the government’s
allegations in the Notice to Appear (“NTA”), including the allegation that he
arrived in the United States on November 30, 2002. The government never moved
to amend its Notice to Appear or otherwise contested Dabo’s stated date of entry. It
is undisputed that Dabo’s asylum application was filed on January 8, 2003. Dabo
thus timely filed his asylum claim, and the BIA’s denial of Dabo’s asylum claim as
untimely is error. 8 U.S.C. § 1158(a)(2)(B).
The BIA upheld the IJ’s conclusion that Dabo’s unclear testimony supported
an adverse credibility finding. “It is long-settled that a competent translation is
fundamental to a full and fair hearing.” Perez-Lastor v. INS, 208 F.3d 773, 778
(9th Cir. 2000). Deportation proceedings violate due process if the alien
demonstrates that a better translation would have made a difference in the outcome
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of the hearing. Acewicz v. INS, 984 F.2d 1056, 1063 (9th Cir. 1993). “Even where
there is no due process violation, faulty or unreliable translations can undermine
the evidence on which an adverse credibility determination is based.” He v.
Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003). In his hearing, Dabo requested that he
be allowed to testify in English, the language in which he is most comfortable.
However, the IJ required Dabo to testify in Hausa, resulting in unclear testimony as
to his residence and symptoms suffered after release from his first alleged arrest.
Whether due to poor translation or poor transcription, we are unable to
meaningfully review the transcript of the evidentiary hearing; and are therefore
unable to determine whether the BIA’s adverse credibility decision is supported by
substantial evidence. Moreover, the government acknowledges that neither the IJ
nor the BIA reached the merits of Dabo’s asylum claim. We therefore remand
Dabo’s asylum petition to the BIA for a new evidentiary hearing and merits
determination.
We affirm the BIA’s conclusion that Dabo is statutorily ineligible for
voluntary departure, because he has not established that he was physically present
in the United States for a period of at least one year immediately preceding service
of the NTA. 8 U.S.C. § 1229c(b)(1)(A).
GRANTED in part, DENIED in part, and REMANDED.
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