Kalouma v. Gonzales

Opinion by Judge NOONAN; Dissent by Judge TALLMAN

NOONAN, Circuit Judge:

John Kalouma petitions for review of a decision of the Board of Immigration Appeals (“the Board”) summarily affirming the decision of an Immigration Judge denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. Holding that the Immigration Judge (“IJ”) committed an error of law that permeated his decision, we reverse and remand.

FACTS AND PROCEEDINGS

John Kalouma entered the United States in March 2001, was intercepted by the Border Patrol, identified himself as Sudanese, and was promptly charged with inadmissibility. At a hearing before the IJ in 2001, Kalouma admitted the charge and applied for relief. On April 24, 2002, Ka-louma’s case was presented to the IJ, who issued an oral decision, denying it. Kalou-ma appealed to the Board of Immigration Appeals. The Board, on October 23, 2003, adopted the IJ’s decision, which thus became central to Kalouma’s timely petition to us.

At the hearing, Kalouma testified that he was a native of Sudan, a Nuer, born in 1972 in Khartoum, to a family from Sham-be in southern Sudan, the son of William and Adasha Kalouma. Kalouma identified himself as a Christian and, more specifically, as a Catholic. Kalouma went on to set out his experiences of persecution by Muslims or Arabs — he used the terms interchangeably.

After hearing Kalouma on direct and on cross-examination by the Government and by himself, the IJ gave his oral decision. In his first sentence, he referred to Kalou-ma as “a person of unknown identity.” Then, after reviewing the procedural steps in the case and the law governing Kalou-ma’s application, he went on as to the changes made in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. § 1158. He stated:

Congress has added Section 208(d)(5)(A) of the Act which enumerates very specific procedures that must be followed regarding an individual’s identity before asylum can be granted. The law now requires that “asylum cannot be granted until the identity of the applicant has been checked” against all appropriate places enumerated within the statute.

It would appear then that Congress has imposed a requirement that an identity must be checked and that it is an absolute requirement before asylum can be granted. It would seem to mean that if an individual who would be otherwise eligible for asylum refuses to have an “identity” check notwithstanding other factors impacting eligibility, this individual could not be granted asylum. It would also seem to suggest, although the Court is not aware of any specific regulations or case law that would offer farther guidance, that if the person’s “identity” is undetermined, then that person would not be able to be granted asylum as it would seem to follow that the identity would not be able to be checked if it was unknown identity.

The IJ continued:

The Court emphasizes that since the amendments made to the Act by IIR-AIRA, Congress for the first time has imposed two new requirements mentioned above that need to be met for an asylum seeker. In this case, of those two amendments, the one that seems to impact or have the greatest impact is the question of “identity.” It suggests to this Court that before an identity can be checked, the Immigration and Naturalization Service and the Executive Office for Immigration Review must have an idea of an individual’s identity before it can be checked within the parameters expressed by the statute. This Court is not aware of any published decision from the Board of Immigration Appeals or precedent decisions which discuss the impact that the identity requirement now has on the burden of proof.

ANALYSIS

We review de novo the IJ’s statement of the law. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Acknowledging that he was not aware “of any specific regulations or case law” on the point, the IJ attributed a pivoted place to the amendment to 8 U.S.C. § 1158(d). The relevant language reads as follows:

(5)(A) Procedures

The procedure established under paragraph (1) shall provide that—

(i) asylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State, including the Automated Visa Lookout System, to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum ....

The statute, as amended, imposes duties on the Attorney General and the Secretary of State. No new burden for the asylum-seeker is imposed by the amendment. In his interpretation, the IJ found a duty on the part of the asylum-seeker to provide information so that the Attorney General and Secretary of State could carry out their statutory responsibilities. As the IJ acknowledged, no case or regulation so holds. To find this additional burden on the applicant to have been implicitly created by the amendment does not appear to be a sensible way of interpreting a statute that has been so carefully articulated and critically revised. The Government, in its answering brief here, notes what the IJ did but makes no attempt to cite case authority or regulations supporting the IJ’s unusual interpretation. We hold the interpretation to be an error of law.

Armed with what appeared to him to be a significant change in the law, the IJ began with calling Kalouma “a .person of unknown identity.” It then became Kalou-ma’s burden to prove who he was. After reviewing all the testimony, the IJ concluded: “The Court is unsure of his identity.” In the IJ’s eyes, Kalouma has failed to meet what the IJ has seen as a kind of legal precondition to an asylum application. The IJ’s doubt as to his identity and the legal limbo Kalouma therefore inhabits, permeates the IJ’s decision.

A man who identified himself in terms of his parents, birth date, birth place, tribe and religion and who testified knowledgeably about a variety of specific sites in Sudan, appeared in the IJ’s cold conclusion to be simply a stranger who had accidentally arrived at the border. We are compelled to reject this conclusion and the legal error on which the conclusion is based.

For the reason stated, the decision of the Board of Appeals is REVERSED, and the case is REMANDED.