Cinapian v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGHAVNI CINAPIAN; NOREK  No. 05-72445
CINAPIAN; AKOP CINAPIAN; GEVORK
CINAPIAN, Agency No.
Petitioners, A75-678-173
v.  A75-678-174
A78-015-327
ERIC H. HOLDER Jr., Attorney A95-633-719
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2009
James E. Rogers College of Law
The University of Arizona
Tucson, Arizona
Filed June 3, 2009
Before: Michael Daly Hawkins, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Hawkins
6607
6610 CINAPIAN v. HOLDER
COUNSEL
Dr. Willie Jordan Curtis, Assistant Dean for Student Affairs
and Associate Clinical Professor of Law, and Brooke Mickel-
CINAPIAN v. HOLDER 6611
son, Maria Mendoza and Victoria Diaz, Law Students, The
University of Arizona, James E. Rogers College of Law, Tuc-
son, Arizona, for the petitioners.
Brooke M. Maurer and Stephen J. Flynn, Office of Immigra-
tion Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
HAWKINS, Circuit Judge:
Concluding Petitioners’ right to a fair hearing was violated
and their asylum applications prejudiced by the government’s
failure to make the author of an adverse forensic evaluation
of Petitioners’ documents available for cross-examination or
to disclose the existence of the report to Petitioners until the
day of their hearing and by the Immigration Judge’s (“IJ”)
insistence on proceeding in the face of those failures, we grant
the petition for review.
Factual and Procedural Background
Petitioners are Aghavni Cinapian (“Aghavni”), her husband
Norek Cinapian (“Norek”), and their two sons, Akop and
Gevork Cinapian (collectively “Petitioners”). They seek
review of the decision of the Board of Immigration Appeals
(“BIA”) affirming the denial of asylum, withholding of
removal, and protection under the Convention Against Tor-
ture (“CAT”).
Petitioners testified they are natives and citizens of Iran,
ethnic Armenians, and Christians who suffered religious per-
secution in Iran because they discussed the tenets of the
Christian faith with a thirteen-year old Muslim boy, Ali. Ali
saw a picture of Jesus Christ in a Bible in Petitioners’ home
6612 CINAPIAN v. HOLDER
and asked them questions about Christianity, which they
answered. Ali apparently discussed the conversation thereaf-
ter because, on August 20, 1999, the Iranian police forcibly
broke down Petitioners’ door and beat and arrested Aghavni
and Norek in front of their children, accusing them of “trying
to convert this M[u]sl[i]m boy.” The police threatened Peti-
tioners, saying “you know what is waiting for you,” and
grabbed and tore Aghavni’s bible.
According to Petitioners’ testimony, after being detained
and interrogated by the Iranian police for two days, Aghavni
and Norek were charged with attempting to convert a Muslim
to Christianity. They were released after their cousins posted
bond. They then hired a lawyer, who advised them that the
charge was “equivalent to killing an Iranian” and punishable
by death or a lengthy prison sentence. Fearful for their lives,
they arranged for a smuggler to help them cross the border
into Turkey. From there, they boarded a plane to Mexico,
where they later entered the United States.
Once here, Aghavni submitted an application for asylum,
withholding of removal, and protection under the CAT, nam-
ing her husband Norek as a derivative applicant. See 8 U.S.C.
§ 1158(b)(3)(A) (“A spouse or child . . . of an alien who is
granted asylum under this subsection may . . . be granted the
same status as the alien if accompanying, or following to join,
such alien.”). Aghavni’s application was referred to the Immi-
gration Court, and removal proceedings were commenced
against them.
Meanwhile, Akop and Gevork, who initially stayed behind
with relatives in Iran, traveled to Moscow. Using a false pass-
port, Akop joined his parents in the United States approxi-
mately two years after they had first arrived. He was followed
by Gevork approximately one year later. In an interview with
U.S. immigration officials, Akop stated that he was born in
Armenia and was a citizen of Armenia. According to his
mother, Akop did so because he was afraid they would other-
CINAPIAN v. HOLDER 6613
wise return him to Iran. Gevork denies that airport officials
questioned him about his citizenship. Later, however, after
removal proceedings had been initiated against Gevork, his
now-deceased lawyer, Harry Zekian (“Zekian”), admitted to
“all the allegations” in the Notice to Appear (which had
alleged that Gevork was an Armenian citizen) and stated in a
Motion to Change Venue that Gevork “escaped his native
country of Armenia.” Both Akop and Gevork were charged
with removability. Their proceedings were consolidated with
their parents’, and their claim to relief is derivative of Aghav-
ni’s asylum application as well. See 8 U.S.C. § 1158(b)(3)(A).
Aghavni testified that she told Zekian that they were from
Tehran, Iran, and that she did not know why Zekian stated
that Gevork was from Armenia. Zekian died in a motorcycle
accident shortly thereafter and thus could not testify at the
hearing whether the admission was based on his conversations
with Petitioners or the result of his own mistake.
In support of her application for asylum, Aghavni submit-
ted a Christianity Certificate prepared by an Armenian church
in Iran certifying that she had been born in Tehran, Iran and
was a member of the Armenian Apostolic Church. She also
submitted a photocopy of her birth certificate and an original
birth certificate for Akop. The photocopied birth certificate
was not suitable for forensic analysis, but the other documents
were forwarded by the Department of Homeland Security
(“DHS”) to a forensic laboratory for analysis.
The forensic reports evaluating Petitioners’ documents, dis-
closed to Petitioners for the first time at their asylum hearing,
brought the documents’ authenticity into question. According
to the Forensic Document Examiner, the “letterheads, stamp
impressions, authorizing signatures, and most of the body” of
the Christianity Certificates “were prepared using color copier
technology,” but the “individualizing entries are original type-
writing.” Such “constructed documents” are usually made by
copying a master (original and possibly genuine) document
6614 CINAPIAN v. HOLDER
and eradicating the main entries and replacing them with
other entries. The Forensic Document Examiner concluded
that Akop’s birth certificate was “counterfeit” because it did
“not conform to a comparable genuine specimen and refer-
ence material on file in the FDL reference library” and its
background design appeared to have been produced using
color inkjet technology and a rubber stamp device.
At the hearing, the IJ stated that the government should
have provided the DHS forensic reports to Petitioners prior to
the hearing, given that they were written several months ear-
lier. However, the IJ made clear that she would not “reset this
case” and “cannot and will not give you a continuance.” Peti-
tioners’ counsel objected to the reports because she “should
have had an opportunity to review [them and] to be able to
discuss [them] at length with [her] client[s]” and because she
had no “opportunity to cross-examine” the author of the
reports. Then, faced with the IJ’s refusal to continue the hear-
ing to another date, Petitioners’ counsel asked that the reports
be given “no weight at all.”1 The IJ acknowledged the con-
cern, but admitted the DHS forensic reports while promising
to take Petitioners’ concerns into consideration in deciding
how much weight to give the reports.
When questioned regarding the documents, Aghavni stated
she and Norek paid their cousins in Iran to send the docu-
ments, did not inspect them carefully, and did not know they
were not genuine. The IJ found that Petitioners were not cred-
ible, in large part because of “major inconsistencies and prob-
lems” related to “where they are from,” which she concluded
went “to the heart of their claim.” The IJ’s oral decision
extensively discussed Aghavni’s responses to questions about
the documents’ origins and Aghavni’s inability to present
additional evidence to corroborate that she and her family had
lived in Iran. Based on her adverse credibility finding, the IJ
1
Because the IJ preemptively foreclosed the possibility of a continu-
ance, Petitioners’ failure specifically to request a continuance is excusable.
CINAPIAN v. HOLDER 6615
held that Aghavni failed to establish the date of her arrival in
the United States, and thus that she had not shown that she
submitted her asylum application within one year of her
arrival as required by 8 U.S.C. § 1158(a)(2)(B). The IJ there-
fore pretermitted Petitioners’ asylum claim as untimely. The
IJ then went on to hold that Petitioners also failed to establish
their eligibility for withholding of removal and protection
under the CAT because they had not credibly “show[n] where
they are from.” The IJ denied all relief and ordered Petitioners
removed “to either Iran or Armenia.”
The BIA “adopt[ed] and affirm[ed]” the IJ’s denial of asy-
lum, citing Matter of Burbano, 20 I & N Dec. 872, 874
(B.I.A. 1994), “on the basis of [Petitioners’] failure to provide
clear and convincing evidence that their applications for asy-
lum were timely filed.” The BIA also “adopt[ed] and affirm-
[ed]” the IJ’s denial of withholding of removal and CAT
protection, specifying that it agreed with the IJ’s finding that
Petitioners failed to “provide credible testimony and evidence
to establish their alienage and thus carry their burden of
proof” for either withholding or CAT protection. Petitioners
timely appealed.
Scope and Standard of Review
Constitutional due process challenges to immigration deci-
sions are reviewed de novo. Ramirez-Alejandre v. Ashcroft,
319 F.3d 365, 377 (9th Cir. 2003).Where the BIA cites Matter
of Burbano and does not express any disagreement with the
IJ’s decision, we review the IJ’s decision as if it were the
BIA’s. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.
2005) (en banc).
Before reaching the merits, we first decide a question of the
scope of our jurisdiction. In its Notice To Appear, the govern-
ment alleged that Aghavni last arrived in the United States on
September 26, 1999. Aghavni’s asylum application is dated
November 9, 1999 — less than a year after the date of arrival
6616 CINAPIAN v. HOLDER
alleged in the Notice to Appear, which would mean that her
asylum application was timely filed. Petitioners admitted the
allegations contained in the Notice To Appear before the IJ,
so the allegations are considered judicial admissions. Where,
as here, the government alleges an alien’s arrival date in its
Notice to Appear, and the alien admits the government’s alle-
gation before the IJ, the allegations are considered judicial
admissions “rendering [the arrival date] undisputed.”
Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008). As
in Hakopian, the government never moved to amend its
Notice to Appear with respect to, or otherwise contest,
Aghavni’s stated date of entry. Therefore, Petitioners “could
scarce be expected to produce additional documentary evi-
dence of [their] arrival date.” Id. at 847.
[1] Nonetheless, the IJ held that Aghavni failed credibly to
establish the date of her last arrival in the United States, and
for that reason held her asylum application untimely. The BIA
“adopt[ed] and affirm[ed]” that determination. The govern-
ment now argues, without attempting to distinguish this case
from Hakopian, that we lack jurisdiction to review the IJ’s
timeliness determination, because Petitioners failed to exhaust
their claim before the BIA, and so our review cannot extend
to the asylum portion of Petitioners’ petition for review. Even
assuming without deciding that Petitioners had not adequately
raised the timeliness issues in their argument before the BIA,
“[w]hen the BIA has ignored a procedural defect and elected
to consider an issue on its substantive merits, we cannot then
decline to consider the issue based upon this procedural
defect.” Abebe, 432 F.3d at 1041.
[2] Here, the BIA explicitly did “adopt and affirm” the IJ’s
timeliness determination and cited to Matter of Burbano to
signify that it had conducted an independent review of the
record and had exercised its own discretion in determining
that its conclusions were the same as those articulated by the
IJ. As in Abebe, the BIA considered the timeliness issue on
the merits, rather than holding the argument procedurally
CINAPIAN v. HOLDER 6617
barred. See id. Therefore, regardless of the clarity with which
Petitioners raised the timeliness issue as connected with their
overall challenge to the IJ’s adverse credibility finding, we
have jurisdiction to review not only the IJ’s holdings as to
withholding of removal and protection under the CAT, but her
holding as to asylum as well. See Arreguin-Moreno v.
Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008) (“[W]hen the
BIA cites Burbano in its decision, all issues presented before
the IJ are deemed to have been presented to the BIA.”)
Discussion
[3] “[A]n alien who faces deportation is entitled to a full
and fair hearing of [her] claims and a reasonable opportunity
to present evidence on [her] behalf.” Colmenar v. INS, 210
F.3d 967, 971 (9th Cir. 2000). Remand is generally necessary
when an alien is prevented from reasonably presenting her
case or when an IJ’s actions prevent the introduction of signif-
icant testimony. See, e.g., Lopez-Umanzor v. Gonzales, 405
F.3d 1049, 1056-57 (9th Cir. 2005) (“Whether the IJ’s actions
prevented the introduction of significant testimony is critical
to the ultimate question whether the alien had a reasonable
opportunity to present evidence.”); Reyes-Melendez v. INS,
342 F.3d 1001, 1006 (9th Cir. 2003). To warrant a new hear-
ing, the alien must also show prejudice, which means that “the
outcome of the proceeding may have been affected by the
alleged violation.” Colmenar, 210 F.3d at 971.
Violation of Due Process Rights
[4] The right to a fair hearing derives from the Due Process
Clause of the Fifth Amendment, which applies in removal
proceedings. See Colmenar, 210 F.3d at 971. Congress has
specifically provided that an alien in a removal proceeding
must have “a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own
behalf, and to cross-examine witnesses presented by the Gov-
ernment . . . .” 8 U.S.C. § 1229a(b)(4)(B). Although the Fed-
6618 CINAPIAN v. HOLDER
eral Rules of Evidence do not apply in administrative
proceedings, evidence is admissible only if it is probative and
its use is fundamentally fair. Martin-Mendoza v. INS, 499
F.2d 918, 921 (9th Cir. 1974); see also In re Toro, 17 I. & N.
Dec. 340, 343 (B.I.A. 1980) (“To be admissible . . . evidence
must be probative and its use fundamentally fair so as to not
deprive respondents of due process of law as mandated by the
fifth amendment.”).
[5] Cunanan v. Immigration & Naturalization Service, 856
F.2d 1373 (9th Cir. 1988), presented circumstances similar to
this case. There, the government produced a witness’s affida-
vit harmful to the petitioner’s claim, but failed to produce the
witness herself. Id. at 1375. Noting that the petitioner was
unaware of the “affidavit until the hearing date, and therefore
could not have known that cross-examining [the witness]
would be essential to his defense,” we held that the govern-
ment’s failure to make a reasonable effort to present the wit-
ness denied the petitioner a “reasonable opportunity to cross-
examine” her. Id.[6] Cunanan is only one of several cases acknowledging
the importance of the right to confront evidence and cross-
examine witnesses in immigration cases. See, e.g., Saidane v.
INS, 129 F.3d 1063, 1066 (9th Cir. 1997) (holding that peti-
tioner was denied due process in a deportation proceeding
when the government “did not make a good faith effort to
afford the alien a reasonable opportunity to confront and to
cross-examine the witness against him”); Baliza v. INS, 709
F.2d 1231, 1234 (9th Cir. 1983) (holding that the admission
of petitioner’s ex-wife’s affidavit in a deportation proceeding
was fundamentally unfair, because “[t]he government knew
for over a year that [the ex-wife’s] testimony would play a
key role in its case” but produced no evidence that it had
attempted to secure her appearance at a hearing other than
“during a twenty-four hour recess” in the proceedings); see
also Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In almost
every setting where important decisions turn on questions of
CINAPIAN v. HOLDER 6619
fact, due process requires an opportunity to confront and
cross-examine adverse witnesses.”). In short, “the [DHS] may
not use an affidavit from an absent witness unless the [DHS]
first establishes that, despite reasonable efforts, it was unable
to secure the presence of the witness at the hearing.”
Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681-82
(9th Cir. 2005) (quoting Ocasio v. Ashcroft, 375 F.3d 105,
107 (1st Cir. 2004)) (internal quotations omitted).2
[7] Forensic evaluations of documents admit to differing
degrees of certainty in the examiner’s conclusions and a vari-
ety of possible innocuous explanations for a document’s
apparent lack of authenticity may exist. See, e.g., Zahedi v.
INS, 222 F.3d 1157, 1165 (9th Cir. 2000) (noting ambiguities
in a forensic laboratory’s letter indicating that documents
were neither clearly authentic nor clearly counterfeit and sug-
gesting that many countries lack significant security features
on their documents). Even if an “assumption that public offi-
cials perform their duties properly without motive or interest
other than to submit accurate and fair reports,” Johnson v.
City of Pleasanton, 982 F.2d 350, 352-53 (9th Cir. 1992)
(internal quotations omitted), is warranted, it would not obvi-
ate the importance of Petitioners’ right to cross-examine wit-
nesses against them and test the strength and establish the
scope of an expert witness’s factual determinations. If given
the opportunity, Petitioners might have asked the author of the
DHS forensic reports how certain she was of her conclusions,
whether she had ever seen a Christianity certificate from Iran
prepared in a way that did not appear “constructed” by Ameri-
can standards, or whether she believed the birth certificate
was so obviously counterfeit that Petitioners, who possessed
no forensic expertise, would have known it to be fake if they
had inspected it properly.
2
Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir. 1995), which held
cross-examination of a government agent who “simply noted” uncontested
facts was not required, is not to the contrary. Here, the forensic analysis
contained in the report clearly was not ministerial and Petitioners con-
tested the reports’ factual conclusions.
6620 CINAPIAN v. HOLDER
[8] For these reasons, we hold that the combination of the
government’s failure to disclose the DHS forensic reports in
advance of the hearing or to make the reports’ author avail-
able for cross-examination and the IJ’s subsequent consider-
ation of the reports under these circumstances denied
Petitioners a fair hearing.
Prejudice
[9] The denial of a fair hearing clearly prejudiced the Peti-
tioners. To establish prejudice, an asylum seeker must also
show that “the outcome of the proceeding may have been
affected by the alleged violation.” Colmenar, 210 F.3d at 971.
“We may infer prejudice even absent any allegations as to
what the petitioner or [her] witnesses might have said if the
IJ had not cut off or refused to permit their testimony.” Zolo-
tukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005); see
also Lopez-Umanzor, 405 F.3d at 1059 (explaining that “ab-
solute certainty” that “the IJ would have reached a different
conclusion” absent the violation is not required).
The government argues that the failure to allow for cross-
examination and the delay in producing the forensic reports
did not prejudice Petitioners because the IJ’s adverse credibil-
ity determination was not based on Petitioners’ submission of
fabricated documents. Rather, the government argues that the
IJ found Aghavni’s claim of Iranian citizenship was “undercut
by numerous inconsistencies” in the testimony, and that the IJ
would have made the same finding even if the possibly coun-
terfeit documentation had never been submitted.
[10] Other circuits have held that if an applicant’s testi-
mony has already been called into question, the absence of
reliable corroboration consistent with that testimony can jus-
tify an adverse credibility determination. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); Hoxha v. Gon-
zales, 446 F.3d 210, 219 (1st Cir. 2006). Those cases are dis-
tinguishable. In Hoxha, for example, the petitioner’s story
CINAPIAN v. HOLDER 6621
was called into question by factual inconsistencies between
two declarations the petitioner himself had submitted in
advance of the hearing; the First Circuit noted that the peti-
tioner “could have attempted to rehabilitate his credibility by
coming forward with other corroborating evidence,” but did
not do so. 446 F.3d at 219 (internal quotation marks omitted).
Here, in contrast, the documents in question would have cor-
roborated Petitioners’ testimony had they not been deemed
fraudulent at the hearing. Petitioners had no notice of the need
for additional corroborating evidence prior to the hearing.
More to the point, even after Petitioners were made aware of
the challenge to their proof of nationality, one of the main
avenues for rehabilitating their testimony remained closed to
them because the author of the reports that were primarily
responsible for calling their testimony into question was
unavailable for cross-examination.
The government suggests the IJ only relied on the DHS
forensic reports to discredit the corroborative value of Peti-
tioners’ documentation and not as a direct basis for drawing
an adverse credibility inference with regard to their testimony.
We cannot confidently draw this conclusion, as the record
provides strong reason to question the government’s charac-
terization of the IJ’s decision. The IJ never made explicit how
much weight she would give the DHS forensic reports and for
what purpose, but merely stated that the procedural concerns
would “go to the weight” she would give those reports. The
IJ appeared to question Petitioners’ credibility primarily
because of the forensic reports, not inconsistencies in their
testimony. For example, after Aghavni testified that she was
from Iran and that her family had lost her original documenta-
tion, the IJ pointedly reminded her of the threat of criminal
perjury charges and then proceeded to state that what Aghavni
had “presented so far is proven, or we have evidence to show
that it was false, ma’am. Can you explain that?” In addition,
the IJ’s oral decision lists “false documents to show that [Peti-
tioners] are not, in fact, from Iran” among the “numerous
pieces of evidence . . . to show that [Petitioners] are citizens
6622 CINAPIAN v. HOLDER
and nationals not of Iran.” On this evidence, we cannot find,
as the government suggests, that the IJ did not rely on the
DHS forensic reports as a basis for her adverse credibility
determination.
[11] The failure to provide adequate notice of the forensic
reports and an opportunity to cross-examine their author
denied Petitioners an effective opportunity to rehabilitate their
testimony. If they had been given notice, Petitioners might
very well have been prepared to produce other evidence to
demonstrate that they had lived in Iran and were citizens there
or evidence that the process by which authentic Christianity
certificates are made in Iran routinely results in documents
that appear “constructed” by American standards. Even with-
out notice, Petitioners could potentially have raised some of
these factual questions through cross-examination of the
Forensic Document Examiner.
[12] To be sure, it might have been more prudent for Peti-
tioners to prepare as much evidence as possible to corroborate
each element of their claims, but it is not fair to require Peti-
tioners to preemptively expend significant resources to obtain
every possible additional piece of documentation proving that
they lived in Iran even when they believed they had already
submitted documents that sufficiently and conclusively
proved that element of the claim. When the government fails
to notify Petitioners in advance of the hearing of evidence and
also does not take reasonable steps to make the preparer of
that evidence available for cross-examination at the hearing,
the proper course is for the IJ either to grant a continuance3
3
The record appears to reflect a brief recess, granted for the govern-
ment’s benefit, which also allowed Petitioners to confer briefly with their
attorney after receiving the DHS forensic reports. This did not remedy the
due process violation because the short delay, unlike a continuance, did
not provide Petitioners with the opportunity to obtain valid documents, to
obtain affidavits from, or at least consult with, those who sent the suspect
documents to Petitioners, to obtain their own expert witness, or to cross-
examine the author of the DHS forensic reports.
CINAPIAN v. HOLDER 6623
or to refuse to admit the evidence. See Cano-Merida v. INS,
311 F.3d 960, 965 (9th Cir. 2002) (“[S]hortcuts frequently
turn out to be mistakes.”). By doing neither, the IJ admitted
damning evidence but denied Petitioners an adequate opportu-
nity to rebut that evidence, to explain the doubts that evidence
raised, or to introduce additional, corroborating evidence of
their Iranian citizenship.
Substantial Evidence Regarding Petitioners’ Credibility
We need not reach Petitioners’ argument that a reasonable
fact finder would be compelled to find their claim of Iranian
citizenship to be credible. After a new hearing in which Peti-
tioners will have had a full and fair opportunity to challenge
the DHS forensic reports and cross-examine their author, to
explain the origin of the allegedly fraudulent documents, and
to supplement the record with additional evidence and testi-
mony to corroborate their claims, the IJ will then have an
opportunity to make a fully-informed credibility determina-
tion based on all the evidence then available.There is no rea-
son to prejudge that determination.
[13] For these reasons, we grant review and remand the
case to the BIA so that it may grant Petitioners a new hearing.
PETITION FOR REVIEW GRANTED.