Sumaira Urooj v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUMAIRA UROOJ; KHALID No. 09-70628

MAHMOOD TURK,

Petitioners, Agency Nos.

A-098-144-358

v. A-098-144-359

ERIC H. HOLDER, JR., United

States Attorney General, OPINION

Respondent.

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Argued and Submitted

June 12, 2013—San Francisco, California

Filed November 6, 2013

Before: Marsha S. Berzon and Jay S. Bybee, Circuit

Judges, and Consuelo B. Marshall, District Judge.*

Opinion by Judge Marshall;

Dissent by Judge Bybee

*

The Honorable Consuelo B. Marshall, Senior District Judge for the

U.S. District Court for the Central District of California, sitting by

designation.

2 UROOJ V. HOLDER

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ decision terminating petitioners’

asylum status.

The panel held that the Board erred by relying on

impeachment evidence only in concluding that the

Department of Homeland Security had established grounds

for termination of asylum by a preponderance of the

evidence. The panel explained that DHS could not meet its

burden in this case through rebuttal documents submitted in

conjunction with the adverse inference drawn from petitioner

Sumaira Urooj’s refusal to answer questions at the hearing.

Dissenting, Judge Bybee would deny the petition because

the IJ based his decision not only on an adverse inference

drawn from Urooj’s refusal to testify, but also on her sworn

statement admitting to concocting a false story to support the

asylum application. Judge Bybee wrote that even if the

Board erred by improperly applying its own precedent, the

proper procedure would be to remand to the Board for an

explanation and further proceedings.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UROOJ V. HOLDER 3

COUNSEL

Jonathan M. Kaufman, Law Offices of Jonathan M. Kaufman,

San Francisco, California, for Petitioners.

John Blakeley (argued), Tony West, Assistant Attorney

General, Civil Division, Emily Radford, Assistant Director,

and Patrick J. Glen, Office of Immigration Litigation,

Department of Justice-Civil Division, Washington, D.C., for

Respondent.

OPINION

MARSHALL, District Judge:

Petitioners Sumaira Urooj (“Urooj”) and her husband,

Khalid Mahmood Turk (“Turk”), seek review of the Board of

Immigration Appeals’ (“BIA”) dismissal of their appeal from

a final order of removal. The order terminated their asylum

status and held them removable under § 237(a)(1)(B) of the

Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(1)(B), for remaining in the United States longer

than permitted. The order also held Urooj removable for

misrepresenting a material fact, and declared that Urooj had

filed a frivolous asylum application.

Petitioners seek review on three bases: First, the

Department of Homeland Security (“DHS”) failed to

establish grounds for termination of asylum by a

preponderance of the evidence. Second, the IJ violated

Urooj’s due process rights when he did not require DHS to

adhere to the local operating procedures requiring advance

disclosure of both witnesses and exhibits. Finally, the BIA’s

4 UROOJ V. HOLDER

decision affirming the IJ’s finding that Petitioners’ asylum

application was frivolous was not supported by substantial

evidence.

Because we agree that the BIA erred in finding that DHS

established grounds for termination of asylum by a

preponderance of the evidence we grant the Petition for

Review.

I.

Petitioners Sumaira Urooj and Khalid Mahmood Turk are

a married couple from Pakistan admitted to the United States

on non-immigrant visas in 2002 and 2003. Both visas

expired in 2005. While in the United States, Petitioner Urooj

submitted an application for asylum in 2004. Her husband,

Petitioner Turk, was a derivative beneficiary of this

application. In her application, Petitioner Urooj stated that

while in Pakistan she was detained or arrested on at least

three occasions, during which she was beaten, interrogated,

tortured, and threatened on account of her membership in the

Pakistan People’s Party (“PPP”), and she feared similar

mistreatment or worse if removed to Pakistan. Petitioner

Urooj’s asylum application was granted on December 23,

2004.

In August 2005, Petitioner Urooj was interviewed by

DHS. DHS prepared a Record of Sworn Statement from the

interview, which Urooj signed. The Statement reflects that

Urooj paid an acquaintance to help prepare her application

and her acquaintance told her to “memorize the story that he

created for the asylum interview” and reminded her of details

while serving as her interpreter during the asylum interview.

It also reflects that Urooj was a member of a PPP student

UROOJ V. HOLDER 5

organization but was never persecuted, arrested, or tortured

in Pakistan because of that affiliation and did not fear

persecution if she returned to Pakistan.

Following the interview, Petitioners received Notices to

Appear and Notices of Intent to Terminate Asylum Status.

The Notices to Appear charged Petitioners with being subject

to removal pursuant to § 237(a)(1)(b) of the Immigration and

Naturalization Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), as

(1) immigrants who remained in the United States for a

longer period than authorized and (2) aliens present in the

United States in violation of law, on account of a prior

misrepresentation of a material fact pursuant to section

212(a)(6)(C) of the INA, 8 U.S.C. § 1182(a)(6)(C).

DHS did not provide notice of its proposed witnesses or

exhibits before the hearing on Petitioners’ removability, as

required by the Local Operating Procedures (“LOP”) of the

San Francisco, California Immigration Court.1 At the

hearing, DHS called Petitioner Urooj as a hostile witness and

offered the following documents as evidence: (1) Petitioner

Urooj’s asylum application; (2) the Record of Sworn

1

Local Operating Procedure 3 provides “all pre-hearing briefs and

proposed exhibits must be filed with the Immigration Court no later than

fifteen (15) calendar days before the scheduled Individual Calendar

hearing, unless specifically permitted by the Immigration Judge assigned

to the matter. Except for good cause shown, an Immigration Judge will

not consider materials that are not timely submitted as in the Procedure.

This procedure shall not apply to exhibits which are to be submitted for

purposes of rebuttal and impeachment.” Procedure 3 applies the same

timeline and exceptions to submission of witness lists and provides

“[a]ttorneys shall name all proposed witnesses that they intend to bring to

a hearing and provide a brief offering as to each witness’ testimony, the

length of the witness’ testimony, and whether the witness needs an

interpreter and, if so, in what language.”

6 UROOJ V. HOLDER

Statement; and (3) the record of oath pertaining to her asylum

application.

Counsel for Petitioners objected, relying on the lack of

proper notice under the LOP. Questions were propounded by

DHS, but Petitioner Urooj refused to answer on advice of

counsel. While Petitioner Urooj was on the stand, DHS

offered the documents as impeachment evidence, which is

excepted from the LOP notice requirements, and the IJ

admitted them as such. The IJ also found that Petitioner

Urooj did not need to be disclosed as a “proposed witness”

within the meaning of the LOP because she was a party to the

proceedings. The IJ drew adverse inferences from Petitioner

Urooj’s refusal to answer each question she was asked.

Following the removal hearing, the IJ terminated

Petitioners’ asylum and held that Petitioner Urooj filed a

frivolous asylum application. The IJ ordered Petitioners

removed to Pakistan.

Petitioners sought review of the IJ’s decision to the BIA.

The BIA dismissed Petitioners’ appeal, affirming the IJ’s

decision. Petitioners timely appealed.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to

review final orders of removal. See Morales-Alegria v.

Gonzales, 449 F.3d 1051, 1053 (9th Cir. 2006). On review

from a decision to terminate asylum status, this Court reviews

the BIA’s factual findings for substantial evidence. Brezilien

v. Holder, 569 F.3d 403, 411 (9th Cir. 2009). Questions of

law are reviewed de novo. Id. Where, as here, the BIA

adopts the decision of the IJ, “‘we review the IJ’s decision as

UROOJ V. HOLDER 7

if it were that of the BIA.’” Abebe v. Gonzales, 432 F.3d

1037, 1039 (9th Cir. 2005) (en banc) (quoting Hoque v.

Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004)).

III.

In proceedings to terminate a grant of asylum, DHS must

establish the grounds for termination by a preponderance of

the evidence. 8 C.F.R. § 1208.24(f). The pivotal legal

question before this Panel, which we review de novo, is

whether DHS can satisfy its burden through impeachment

evidence only. Our conclusion is that it cannot.

Where, as here, the sole witness refuses to answer

questions, DHS cannot satisfy its burden, “in the absence of

any substantive evidence . . . , based solely upon the adverse

inference drawn from . . . silence.” Matter of Guevara,

20 I. & N. Dec. 238, 244 (BIA 1990). As the BIA aptly

observed in Guevara, “if the ‘burden’ of proof were satisfied

by a respondent’s silence alone, it would be practically no

burden at all.” Id. at 244.

The IJ distinguished the evidentiary record in this case

from that in Guevara and justified the different result by

relying on the impeachment evidence offered by DHS. The

IJ held that Petitioner Urooj’s “refusal to testify, taken in

conjunction with the documentation submitted by the DHS

. . . is sufficient to demonstrate by a preponderance of the

evidence that ‘there was a showing of fraud in [her]

application . . .’.” We disagree. Impeachment evidence alone

cannot satisfy DHS’ burden where there was no substantive

evidence and thus nothing to impeach.

8 UROOJ V. HOLDER

It is clear both from the transcript of the proceedings and

the IJ’s written decision that the IJ admitted the documentary

evidence proffered by DHS for impeachment purposes only.2

Impeachment evidence is limited to “show[ing] background

facts which bear directly on whether [the factfinder] ought to

believe [one witness] rather than other and conflicting

witnesses.” Gordon v. United States, 383 F.2d 936, 940

(D.C. Cir. 1967); see also Fed. R. Evid. 607, 608

(impeachment includes attacking witness credibility and

character for truthfulness or untruthfulness); 4 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence, § 607.03[1] (2d ed. 1997) (“[T]he technicalities

surrounding impeachment tend to submerge the basic aim of

all credibility rules: to admit evidence that enables the trier of

fact to determine whether or not the witness is telling the

truth.”) Where there is no act of “telling,” there is no need to

determine the credibility of the witness.3

Rather than terminating the proceedings for lack of

substantive evidence, the IJ and BIA relied on the

impeachment evidence for proof of the facts in dispute. This

reliance was error, as it improperly conflated impeachment

2

The IJ overruled Petitioners’ objection to the documentary evidence,

holding that impeachment evidence is excepted from the advance notice

requirement imposed on other categories of evidence.

3

The better course in this situation would have been to terminate the

proceedings. Duvall v. Attorney General of the United States is instructive

on this point. 436 F.3d 382 (3d Cir. 2006). In Duvall, as here, the

government called the respondent as the sole witness. Id. at 384. The

respondent refused, however, to answer the government’s questions. Id.

The government then sought to introduce the respondent’s application for

adjustment of status but the IJ ruled it inadmissible for noncompliance

with the local rules. Id. Finding that the government had failed to satisfy

its burden of proof, the IJ terminated the proceedings. Id.

UROOJ V. HOLDER 9

evidence with substantive evidence.4 See, e.g., United States

v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (emphasizing

“subtle distinction between impeachment and substantive

evidence”); Robert E. Jones, et al., Federal Civil Trials &

Evidence § 8:1954 (2013) (“Impeachment evidence proves

only that the declarant lacks credibility; substantive evidence

proves the facts in dispute”). The IJ found the impeachment

evidence to be “probative on the issues of fraud . . . . [and]

give[n] full evidentiary weight.” Similarly, the BIA found

the impeachment evidence to “indicate that [Urooj] knew her

asylum application contained false statements and that she

made false claims in support of it during her asylum

interview.” The decisions of the IJ and the BIA in this case

relieved DHS of its burden of proof, allowing it to prove the

facts in dispute by offering only impeachment evidence

unconstrained by the procedural rules of notice.5

We agree with the First Circuit that “‘the United States

Government should not be bailed out from the need to present

an adequate prima facie case . . . . We should not encourage

the cutting of corners by an agency having such significant

4

We are not called upon to determine whether the IJ could have

properly admitted the documentary evidence as substantive evidence, and

then reached the same result, and we do not opine on that issue.

5

The Immigration Court Practice Manual replaced all Local Operating

Procedures nationally on July 1, 2008. See U.S. Dep’t of Justice, Exec.

Office for Immig. Rev., Immigration Court Practice Manual. The Manual

continues to require advance disclosure of proposed exhibits with the

exception of exhibits used for impeachment or rebuttal. See also Fed. R.

Civ. P. 26(a)(1)(B) (providing an exception to the regular disclosure

requirements when documents will be used “solely for impeachment”);

Tamenut v. Ashcroft, 361 F.3d 1060, 1061 (8th Cir. 2004) (holding that

“evidence . . . offered to impeach Petitioner’s credibility” is excepted from

disclosure requirements).

10 UROOJ V. HOLDER

responsibilities.’” Navia-Duran v. Immigration and

Naturalization Serv., 568 F.2d 803, 811 (1st Cir. 1977)

(quoting Sint v. Immigration and Naturalization Serv.,

500 F.2d 120, 124 (1st Cir. 1974)). We thus conclude that

DHS did not meet its burden of establishing the grounds for

termination of asylum by a preponderance of the evidence.

Cf. Duvall v. Attorney General of the United States, 436 F.3d

382, 384 (3d Cir. 2006). We need not reach the merits of

Petitioners’ remaining arguments in support of review.

IV.

Accordingly the Petition for Review is GRANTED.

BYBEE, Circuit Judge, dissenting:

The majority holds that the Department of Homeland

Security (“DHS”) cannot satisfy its burden of establishing

grounds for termination of a grant of asylum by a

preponderance of the evidence where the sole witness refuses

to answer questions and documentary evidence is offered

only for impeachment. Maj. at 7. Remarkably, for support,

the majority principally relies on the Board of Immigration

Appeals (“BIA”) decision in Matter of Guevara, 20 I. & N.

Dec. 238 (BIA 1990). But in that case, the BIA said just the

opposite: “[A]n adverse inference may indeed be drawn from

a respondent’s silence in deportation proceedings.” Id. at 241

(citing U.S. Supreme Court and Ninth Circuit authority). As

I explain, infra, the BIA qualified that rule in Guevara,

holding that silence can be evidence; it just can’t be the only

evidence. Id. at 243–44. That qualification doesn’t help

Petitioner Urooj.

UROOJ V. HOLDER 11

Because the Immigration Judge (“IJ”) not only based his

decision on an adverse inference drawn from Urooj’s refusal

to testify but also on Urooj’s sworn statement admitting to

concocting a false story to support her asylum application, I

would deny the petition. But even if I thought that the BIA

had acted inconsistently with Guevara, I would remand the

matter pursuant to Immigration and Naturalization Serv. v.

Ventura, 537 U.S. 12 (2002). Guevara is not a constitutional

or a statutory mandate; it is the BIA’s own evidentiary rule.

And for that reason, if I thought the BIA had misapplied its

own rule, I would give it the opportunity to address our

concerns in the first instance. Accordingly, I respectfully

dissent.

In Guevara, the respondent was charged with entering the

United States without inspection in 1987 in violation of

241(a)(2) of the Immigration and Nationality Act, then

codified at 8 U.S.C. § 1251(a)(2) (1988). 20 I. & N. Dec. at

239. He never admitted to the crime and contested the

allegations from the beginning, and, in an initial appearance

before the IJ, apparently informed the IJ through counsel that

he would move to suppress any evidence produced as a result

of his apprehension. Id. He appeared a second time before the

IJ and was called as a witness by the government. Id. He

refused to testify, asserting his Fifth Amendment privilege

against self-incrimination, even after the IJ informed him of

the existence of an “Agency Order” from the Immigration

and Naturalization Service (“INS”) that directed him to

testify and purported to immunize him from the use of any of

his testimony in any future criminal proceedings. Id. at

239–40. “The Service presented no evidence to establish the

respondent’s alienage and deportability other than the

respondent’s silence in the face of questioning.” Id. at 240.

On the basis of that silence alone, the IJ drew an adverse

12 UROOJ V. HOLDER

inference, shifted the burden of proof to Guevara, and noted

that he had not established the time, place, or manner of his

entry, and was, therefore, deportable as charged. Id.

The BIA reversed. It began by noting that “an adverse

inference may indeed be drawn from a respondent’s silence

in deportation proceedings.” Id. at 241. “Thus, it is clear that

when confronted with evidence of, for example, the

respondent’s alienage, the circumstances of his entry, or his

deportability, a respondent who remains silent may leave

himself open to adverse inferences, which may properly lead

in turn to a finding of deportability against him.” Id. at 242.

It distinguished Guevera’s case, though, by explaining that

“[u]nder the circumstances presented here, the respondent’s

silence alone does not provide sufficient evidence, in the

absence of any other evidence of record at all, to establish a

prima facie case of alienage, sufficient to shift the burden of

proof to the respondent under [8 U.S.C. § 1361].” Id.

“[W]hile we have held that a respondent’s silence may fairly

corroborate other evidence presented for the record, we have

also stated that ‘[s]uspicion cannot be solidified into proof by

the mere silence of respondent.’” Id. at 243 (internal citations

omitted; second alteration in original). And in that case, the

INS had “introduced no other evidence” but respondent’s

silence. Id. at 244.

This is not the case here. In the instant case, the IJ did not

rely “mere[ly on Urooj’s] silence,” id. at 243, but on the DHS

exhibits, particularly the record of her August 25, 2005

Sworn Statement where she admitted paying an acquaintance

$5,000 to help her and Petitioner Turk become U.S.

permanent residents and admitted to memorizing a false story

to tell at her asylum interview. The IJ, quoting 8 C.F.R.

§ 1208.24(a)(1), found that Urooj’s “refusal to testify, taken

UROOJ V. HOLDER 13

in conjunction with the documentation submitted by the DHS

. . . [wa]s sufficient to demonstrate by a preponderance of the

evidence that ‘[t]here is a showing of fraud in the alien’s

application such that he or she was not eligible for asylum at

the time it was granted.’” Urooj was granted asylum based on

her application and interview, the IJ observed, which Urooj

had “previously indicated under oath were both false.”

Guevara was concerned with “the absence of any other

evidence of record at all,” Guevara, 20 I. & N. at 242, aside

from the alien’s silence. The facts are far different here, and

the IJ was likely justified in drawing an inference from the

Petitioner’s silence.1

The majority believes that because this evidence was

entered as impeachment evidence instead of on the merits, it

should be ignored. Maj. at 8–9. In retrospect, perhaps the IJ

should have granted a continuance sua sponte to remedy the

DHS’s failure to provide notice of the proposed witnesses and

exhibits to Petitioners, as required by the Local Operating

Procedures of the San Francisco, California Immigration

Court. The IJ here tried to manage a confused and awkward

proceeding. Although DHS could have prevented the

confusion by submitting Urooj’s name as a witness in

conformity with the local rules, it is not entirely clear that, in

1

The majority also cites Navia-Duran v. Immigration and

Naturalization Serv., 568 F.2d 803 (1st Cir. 1977) for support. There, the

court vacated a deportation order where the only evidence presented by

the government in a deportation proceeding was the alien’s statement

admitting to illegal presence, because the statement was involuntary and

taken in violation of the alien’s due process rights, and was, thus,

inadmissible. Id. at 811. Here, by contrast, Urooj’s August 25, 2005

statement was not procured involuntarily; according to the record, Urooj

“does not dispute the veracity of her signed, sworn statement, nor did she

offer any explanation for the document.”

14 UROOJ V. HOLDER

a proceeding to terminate Urooj’s asylum status for her

fraudulent statements, the DHS had to indicate it would call

Urooj herself if she declined to testify in her own defense.

In any event, we have no warrant for overturning the

BIA’s decision based on its application of its own rules. I do

not think the BIA erred, but if we are convinced the BIA has

behaved inconsistently, the proper procedure is to remand the

case to the BIA for an explanation and further proceedings.

I respectfully dissent.