Galicia, Maribel R. v. Gonzales, Alberto R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-3868 & 04-3138

MARIBEL RODRIGUEZ GALICIA,

Petitioner,

v.

ALBERTO R. GONZALES,1

United States Attorney General,

Respondent.

____________

Petitions for Review of Orders of

the Board of Immigration Appeals.

No. A76-543-342

____________

ARGUED MAY 12, 2005—DECIDED SEPTEMBER 2, 2005

____________

Before RIPPLE, ROVNER and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. The Immigration and Naturalization

Service (“INS”) brought removal proceedings against

Maribel Rodriguez Galicia. Ms. Rodriguez applied for

asylum and withholding of removal and an Immigration

1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

we have substituted the current Attorney General of the

United States, Alberto R. Gonzales, for his predecessor as the

named respondent.

2 Nos. 03-3868 & 04-3138

Judge (“IJ”) denied her application and the Board of

Immigration Appeals (“BIA” or “Board”) affirmed. She

timely petitioned for review to this court and filed a motion

to reopen with the BIA. The BIA denied her motion to

reopen and she separately petitioned for review of this

denial. For the reasons set forth in the following opinion, we

grant her first petition, vacate the decision of the IJ and

remand for further proceedings.

I

BACKGROUND

A. Facts

Ms. Rodriguez was born in a rural Guatemalan town

and later moved to Guatemala City, where she met and

married her husband, university student Armando Flores.

At the time, the nation was engulfed in a long-running

civil war and, according to Ms. Rodriguez, Mr. Flores

became sympathetic with one guerrilla group, the Unidad

Revolucionaria Nacional Guatemalteca (“URNG”). She

claims that Mr. Flores actively supported URNG in sev-

eral ways: he used a car registered in her name to bring

supplies to URNG guerrillas; he attended URNG meet-

ings and distributed pamphlets for the group; and he

participated in Huelga de Delores, an annual anti-govern-

ment demonstration.

On January 21, 1995, Mr. Flores went to register for his

university classes with a friend. The two never returned,

and Ms. Rodriguez, who was pregnant with the couple’s

second child, contacted the police. The police had no

information about Mr. Flores and told her that she could not

Nos. 03-3868 & 04-3138 3

file a missing person report until twenty-four hours passed.

She and her father-in-law found Mr. Flores’ body in a town

morgue outside of Guatemala City; according to Ms.

Rodriguez, his body had been found with that of his friend

in an empty lot near a military base. Both men evidently

had been tortured and then shot. A car allegedly registered

in Ms. Rodriguez’ name was found near the bodies, but she

claimed that her registration papers were missing.

A neighbor told Ms. Rodriguez that Guatemalan secu-

rity agents had come to her home while Ms. Rodriquez

was looking for her husband. The neighbor knew that

the men were associated with the government because their

vehicle bore official license plates, which characteristically

began with a “0” and consisted of just two or three num-

bers. According to Ms. Rodriguez, Guatemalans at the time

paid close attention to license plates because they feared

government agents. Moreover, she claimed that government

agents often would intimidate the families of murdered

dissidents; this tactic, she believed, motivated the visit to

her home and the later appearance of two unknown men

driving an official vehicle at her husband’s funeral.

Four days after Mr. Flores’ murder, Ms. Rodriguez

registered at a clinic under an assumed name and gave birth

to their son. Three individuals, again driving an official

vehicle, came to the clinic looking for “Maribel de Flores”

but were turned away by a nurse. According to

Ms. Rodriguez, a doctor advised her to leave the clinic

for her own safety. Ms. Rodriguez, together with the

newborn and a four-year-old child, moved in with her

husband’s parents, who lived in Guatemala City. Her living

arrangements ran contrary to Guatemalan custom—

generally a widow will return to the home of her own

parents—but Ms. Rodriguez claimed that it was impractical

to return to her home town and believed that the govern-

4 Nos. 03-3868 & 04-3138

ment would be less likely to find her if she was living with

her in-laws. Nevertheless, she asserts that government

agents found her and that she began to receive threatening

telephone calls and death threats. She claims that the threats

caused anxiety attacks that twice required hospitalization.

Eventually, she left the home of her in-laws and moved in

with an uncle who lived four hours away.

The uncle sought visas from the United States for Ms.

Rodriguez and her children and helped her complete the

application process. Soon after, in February 1996, he

was kidnapped—by agents driving official vehicles—

and murdered after apparently being tortured. She be-

lieves that the government murdered him for sheltering her.

Ms. Rodriguez and the children left for the United States,

entering with valid tourist visas on February 26, 1996. She

returned to Guatemala in September 1997 to attend her

father’s funeral, traveling under an alias and a false pass-

port. She was detained on October 12, 1997 when she

attempted to reenter the United States. She told immigration

officials that she feared harm if she was returned

to Guatemala but falsely claimed that her children lived

in Guatemala and that she obtained her passport there. At

her credible fear interview nine days later, Ms. Rodriguez

claimed to fear returning to Guatemala because her husband

had been murdered by the government, though she did not

mention his URNG ties and stated that he was not a mem-

ber of a political party. The interviewer found that she

demonstrated a credible fear of persecution upon return and

her case was set for hearing before an IJ in Chicago, Illinois.

Nos. 03-3868 & 04-3138 5

B. Agency Proceedings

1.

Ms. Rodriguez applied for asylum and alternatively

for withholding of removal. She appeared for a hearing

on her asylum request on September 28, 1998, which be-

gan more than an hour after it was scheduled.2 Ms. Rodri-

guez testified to the facts described above. She claimed that

she lied to immigration officials in her first interview

“[b]ecause at that time, I was very anguished because I

thought that the policeman was just filling out a form so

that he could return me to Guatemala, because I did not

want them to return me . . . under my true name, because I

feared that when I returned there I would be persecuted.”

A.R.1410.3 She further stated that she did not understand

the United States’ asylum process; the concept of asylum is

foreign to Guatemala. She attributed her denial of her

husband’s political activities to confusion about whether the

URNG was a political party—confusion that remained after

the IJ questioned her on the point.

Ms. Rodriguez sought to introduce the testimony of two

experts in human rights and Latin America, Professors

Daniel Rothenberg and Douglas Cassel; in addition, prior to

the hearing Ms. Rodriguez entered an affidavit from

Professor Rothenberg, but not from Professor Cassel, into

2

The record contains no suggestion that the delay in starting

was in any way attributable to Ms. Rodriguez.

3

For reasons that shall become clear, there are two copies of

the administrative record before this court. For ease of reference,

we refer only to the record in No. 04-3138, filed on October 28,

2004.

6 Nos. 03-3868 & 04-3138

evidence. Professor Rothenberg was unavailable to testify in

person at the hearing, and Ms. Rodriguez had moved

to present his testimony by telephone. The IJ denied

her motion at the start of the hearing, stating simply, “No,

I’m not going to hear any telephonic testimony, all right?

We’re going to start with the respondent now.” A.R.1343.

The IJ held Ms. Rodriguez to a strict time limit in presenting

her evidence. As her direct examination neared its conclu-

sion, the IJ asked her counsel:

Q: Anything further of this witness, counsel? You do

have a time limit, unfortunately, and if you wish the

Government to cross-examine, and you have a wit-

ness to present, I would suggest that you wrap it up.

A: Certainly, if I may just ask a few more questions.

Q: You may take as much time as you wish, but there’s

going to be a time that I’m going to pass the witness. If I

have no time for your expert, that will be it. All right. I

will not reset the case today. All right. So, you have a

certain amount of time that you can present your case.

A.R.1395-96.

Ms. Rodriguez testified for approximately one hour. True

to his prediction, the IJ commented that “time has evapo-

rated” and refused to allow Professor Cassel’s testimony,

instead instructing Ms. Rodriguez to “make an offer

of proof as to [her] expert witness if he were to testify . . . to

preserve it for the record.” A.R.1423. Ms. Rodriguez made

an offer of proof for both Professors Rothenberg and Cassel.

According to Ms. Rodriguez, Professor Rothenberg would

testify that Mr. Flores’ killing was consistent with and could

only be the work of Guatemalan security forces, whose

tactics often included the continuing intimidation of a

Nos. 03-3868 & 04-3138 7

murdered dissident’s widow. Professor Cassel’s proposed

testimony mirrored Professor Rothenberg’s and also

indicated that university students like Mr. Flores were

under particular scrutiny by the security forces. Both

experts would testify that the practices that Ms. Rodriguez

claimed to fear continued despite recent changes in the

Guatemalan government.

The IJ denied Ms. Rodriguez’ petition for asylum and

withholding of removal after first determining that Ms.

Rodriguez was not a credible witness because she failed

adequately to explain discrepancies in her accounts. For

instance, the IJ determined that Mr. Flores was not an active

URNG sympathizer; Ms. Rodriguez had denied his political

activities during the credible fear interview and the IJ found

that her testimony about his activities at the hearing was an

attempt to “‘embellish’ her story.” A.R.1307. The IJ similarly

found it suspicious that, in the same interview, Ms. Rodri-

guez had denied her husband’s participation in Huelga de

Dolores, and noted that she “lack[ed] familiarity with the

URNG, including the fact that she referred to it as the

URMG during the hearing.” A.R.1308. Moreover, the IJ

found it “deeply troubling” that Ms. Rodriguez was unable

to corroborate the “linchpin of her asylum claim,” “the

alleged fact that the car [found with Mr. Flores’ body] was

registered in her name.” Id. The IJ summarized his credibil-

ity findings:

[T]he court finds that the respondent’s testimony is

not credible with respect to her husband’s purported

involvement in the URNG. It does not appear that the

respondent’s husband was involved in any manner with

the guerrillas. Furthermore, the court finds that there is

no credible evidence which suggests that a

car registered in the respondent’s name was used to

8 Nos. 03-3868 & 04-3138

transport supplies to the URNG. The respondent’s

husband was not killed on account of his political

opinion, and the respondent had not faced persecution

because his political opinions were imputed to her. As

the respondent’s testimony on whether the alleged

persecution occurred . . . has been found to be incredi-

ble, she has failed to establish her eligibility for asylum,

and the application will accordingly be denied.

A.R.1308-09.

The IJ then considered the merits of Ms. Rodriguez’

petition and first evaluated whether she had proven

eligibility for asylum based on past persecution. The IJ

found no evidence that Ms. Rodriguez’ husband and uncle

were killed “in order to punish” her, id., and found it

more likely that they were victims of crime. Moreover, the

IJ found no evidence that Ms. Rodriguez was mistreated

by government agents; indeed, the IJ doubted the iden-

tification of mysterious visitors as government agents,

noting that “[i]t seems remarkable that these people

payed [sic] such close attention to the license plate num-

bers.” A.R.1310. The IJ again found it more likely that the

visitors at Mr. Rodriguez’ funeral and at the hospital

were friends of his or policemen investigating his death, but

at any rate found it significant that they took no “hostile

action” against her. Id. The IJ similarly discounted Ms.

Rodriguez’ accounts of the threatening phone calls

she received. Thus, the IJ found that Ms. Rodriguez pre-

sented insufficient evidence of past persecution.

The IJ then rejected Ms. Rodriguez’ claim to fear future

persecution. In support of this decision, the IJ noted seven

“actions taken by the respondent suggest[ing] that her

fear of persecution is not genuine,” A.R.1311: (1) she

Nos. 03-3868 & 04-3138 9

gave her son the surname of his father, Flores, despite

testifying that she was afraid to use it herself; (2) she moved

in with her in-laws, in spite of Guatemalan custom and in

spite of the fact that this arrangement placed her closer to

government agents; (3) she investigated her husband’s

death independently; (4) she waited until four months after

the last threatening phone call to move from her in-laws’

house; (5) she never attempted to apply for asylum after

first entering the United States; (6) despite her alleged fear,

she returned to Guatemala for her father’s funeral; and (7)

she only applied for asylum after being detained by the INS.

Moreover, the IJ found that any subjective fear was objec-

tively unreasonable because, according to reports from the

United States Department of State, the URNG no longer was

a guerrilla group. Indeed, the IJ noted that, despite an

upsurge in criminal activity, the human rights situation in

Guatemala had improved dramatically.

Because Ms. Rodriguez did not establish eligibility for

asylum, the IJ found that she failed to prove the more

stringent requirements to demonstrate eligibility for with-

holding of removal. The IJ thus denied her applications and

ordered her removal to Guatemala.4

2.

Ms. Rodriguez appealed to the BIA, arguing, among other

things, that the IJ conducted the hearing in a manner that

violated her right to due process. The BIA affirmed the IJ,

4

As her applications were on appeal to the BIA, Ms. Rodriguez

gave birth to her third child, a daughter, who is a citizen of the

United States.

10 Nos. 03-3868 & 04-3138

although it cited Matter of Burbano, 20 I. & N. Dec. 872 (BIA

1994) for the proposition that its affirmance did not “imply

agreement with all aspects of the decision.” A.R.438. The

BIA did not make a complete statement of reasons for

affirming, but purported to offer only “explanatory com-

ments” about her due process claim. Id. In particular, the

BIA noted that IJs are granted broad discretion to conduct

immigration hearings. It commented that Ms. Rodriguez

failed to object to presenting an offer of proof instead of live

testimony from her witnesses, and at any rate Professor

Rothenberg’s report was included in the record. The BIA

thus found that Ms. Rodriguez received a full and fair

hearing. Ms. Rodriguez timely appealed the BIA’s decision

to this court on October 29, 2003.

3.

Before we took her appeal under advisement, Ms. Rodri-

guez filed a motion to reopen her case with the BIA. She

argued that two changed circumstances warranted reopen-

ing her case. First, she had been diagnosed with a serious

kidney disorder, crescentic membranous

glomerulonephritis, which is likely to be fatal. The condition

required an organ transplant and dialysis and, she submit-

ted, removing her to Guatemala would “be tantamount to

a death sentence.” A.R.285. Second, Ms. Rodriguez noted

that she had given birth to a United States-citizen daughter,

Dianna. Ms. Rodriguez asserted that her removal and

consequent death would result in hardship to her children

and would, in effect, exile Dianna to Guatemala—where the

infant’s citizenship would place her in peril. Ms. Rodriguez

also requested that her removal be canceled pursuant to 8

U.S.C. § 1229b(b).

Nos. 03-3868 & 04-3138 11

The BIA denied her motion to reopen. It held that

she failed to meet the heavy burden governing such motions

and failed to demonstrate how her illness would subject her

to persecution in Guatemala. The BIA rejected her claim of

hardship on her children as “not germane to her persecution

claim.” A.R.3. The BIA also found that she did not qualify

for cancellation of removal because she had not been

present in the United States for the requisite ten-year period.

8 U.S.C. § 1229b(b)(1)(A).

Ms. Rodriguez separately sought review of the BIA’s

denial of her motion to reopen. Because she timely appealed

both the BIA’s original decision on the merits and the denial

of her motion to reopen, we consolidated this action with

her previous appeal.

II

DISCUSSION

A. Standard of Review

Where, as here, the BIA adopts the rationale of the IJ,

we review the IJ’s decision. Ursachi v. INS, 296 F.3d 592,

594 (7th Cir. 2002). Ms. Rodriguez bore the burden of

proving her eligibility for asylum. Oforji v. Ashcroft, 354 F.3d

609, 612 (7th Cir. 2003). We review the IJ’s determination

that she failed to meet her burden under a highly deferential

standard, and will affirm if its decision is supported by

“ ‘reasonable, substantial, and probative evidence on the

record as a whole.’ ” See INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)); Toptchev v. INS,

295 F.3d 714, 720 (7th Cir. 2002). “We give great deference

to an IJ’s credibility determinations so long as they are

12 Nos. 03-3868 & 04-3138

supported by cogent reasons that bear a legitimate nexus to

the findings.” Hysi v. Gonzales, 411 F.3d 847, 852 (7th Cir.

2005).5 We will reverse the BIA’s determinations about the

availability of corroborating evidence only if we find that a

reasonable trier of fact is compelled to conclude that such

corroborating evidence is unavailable.6 Despite these

5

Congress recently altered the standards by which IJs reach

credibility determinations in asylum and withholding cases

through the REAL ID Act. See Emergency Supplemental Appro-

priations Act for Defense, the Global War on Terror, and Tsunami

Relief, Division B—REAL ID Act of 2005, Pub. L. No. 109-13, §

101(a)(3), (b), 119 Stat. 231 (codified at 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C)). These changes “take effect

on the date of the enactment of this division [May 11, 2005] and .

. . apply to applications for asylum, withholding, or other relief

from removal made on or after such date.” REAL ID Act §

101(h)(2). The portions of the REAL ID Act affecting credi-

bility determinations thus do not apply to determinations

made in the course of Ms. Rodriguez’ 1998 petition. See, e.g.,

Dhima v. Gonzales, ___ F.3d ___, 2005 WL 1774549, at *5 n.3 (1st

Cir. 2005).

6

The REAL ID Act also modified the standards by which this

court reviews an IJ’s determination concerning the availabil-

ity of corroborating evidence. REAL ID Act § 101(e) (codified at 8

U.S.C. § 1252(b)(4)). Specifically, the Act provides that “[n]o court

shall reverse a determination made by a trier of fact with respect

to the availability of corroborating evidence . . . unless the court

finds . . . that a reasonable trier of fact is compelled to conclude

that such corroborating evidence is unavailable.” Id. Unlike REAL

ID Act provisions concerning credibility determinations, section

101(e) applies “to all cases in which the final administrative

removal order is or was issued before, on, or after [May 11,

2005],” and thus applies to Ms. Rodriguez’ claim. Id. § 101(h)(3);

(continued...)

Nos. 03-3868 & 04-3138 13

deferen-tial standards, the question of whether an asylum

hearing comported with the requirements of due process is

purely a legal one which we review de novo. Kerciku v.

INS, 314 F.3d 913, 917 (7th Cir. 2003).

Motions to reopen, like motions for a new trial, are

strongly disfavored, and we review deferentially the

BIA’s decision to deny Ms. Rodriguez’ motion. Selimi v.

Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004) (citing INS v.

Doherty, 502 U.S. 314 (1992)).

B. Application for Asylum and Withholding

Ms. Rodriguez claims that the IJ conducted her asylum

hearing in a manner that violated her right to due pro-

cess. The IJ’s decision to deny her application was based

largely on findings that she was not a credible witness

and that she failed to provide corroboration for her account.

We therefore first consider the IJ’s findings before turning

6

(...continued)

see Fessehaye v. Ashcroft, 414 F.3d 746, 752-53 (7th Cir. 2005).

The IJ’s determination that Ms. Rodriguez failed to corroborate

the “linchpin of her claim,” by not providing evidence that the

vehicle found near Mr. Flores was registered in her name,

significantly contributed to the IJ’s ultimate denial of her petition.

A.R.1308. Evidently, the IJ believed that corroborating evidence

was available but not presented. Id. (“She apparently made no

attempt to obtain proof from Guatemala that the automobile had

been registered under her name. Similarly, although she asserted

that she had a driver’s license in Guatemala, she was unable to

corroborate that claim either.”). We review this determination

under the standard established by the REAL ID Act.

14 Nos. 03-3868 & 04-3138

to the merits of Ms. Rodriguez’ due process claim.

1. Credibility Determination

Ms. Rodriguez submits that the IJ’s adverse credibility

determination was unsupported and that the IJ improperly

and unreasonably required her to corroborate her claim that

the car found near her husband’s body was registered in her

name. Indeed, she points out that her expert witnesses, who

were barred from testifying by the IJ, could corroborate

much of her account of events in Guatemala. The Govern-

ment responds that the IJ was in a position to evaluate Ms.

Rodriguez’ credibility, and that the deference that this court

owes to the IJ counsels against disturbing the IJ’s credibility

findings.

The IJ’s “[c]redibility determinations are accorded sub-

stantial deference, but they must be supported by specific,

cogent reasons” and “must bear a legitimate nexus to the

finding.” Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999)

(internal quotation marks and citations omitted). In other

words, the IJ’s “adverse credibility finding must be based on

issues that go to the heart of the applicant’s claim. They

‘cannot be based on an irrelevant inconsistency.’ ” Sylla v.

INS, 388 F.3d 924, 926 (6th Cir. 2004) (quoting Daneshvar v.

Ashcroft, 355 F.3d 615, 619 n.2 (6th Cir. 2004)). “[W]e will not

automatically yield to the IJ’s conclusions when they are

drawn from insufficient or incomplete evidence.” Georgis v.

Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003).

In Ms. Rodriguez’ case, the IJ largely based its credibil-

ity determination on inconsistencies between her credible

fear interview and her testimony at the hearing. The IJ

recognized that most of the inconsistencies—that she gave

Nos. 03-3868 & 04-3138 15

a false name to immigration officials, lied about the location

of her children and about how she obtained a

false passport—were irrelevant and did not go to the

heart of her claim.7 Nor is there any basis for the IJ’s fur-

ther comment that her false statements were a “demon-

stration that the respondent is willing to lie in order to avoid

the consequences of her actions,” id.; Ms. Rodriguez testified

that she feared the information would be provided to

Guatemalan authorities and, importantly, the IJ did not find

this testimony incredible. Indeed, testimony that an appli-

cant gave false information to immigration authorities for

fear of deportation to a persecuting country can be entirely

consistent with a fear of persecution. See Turcios v. INS, 821

F.2d 1396, 1400-01 (9th Cir. 1987); see also Yongo v. INS, 355

F.3d 27, 33 (1st Cir. 2004); Balasubramanrim v. INS, 143 F.3d

157, 164 (3d Cir. 1998); In re O-D-, 21 I. & N. Dec. 1079, 1082

(BIA 1998). Another inconsistency relied upon by the

IJ—Ms. Rodriguez’ perceived lack of familiarity with the

URNG—also was irrelevant to the question at hand:

whether Mr. Flores was involved with the URNG and

whether his political opinion was imputed to Ms. Rodri-

guez.

The sole remaining basis for the IJ’s credibility determina-

tion, then, was described as the “linchpin” of Ms. Rodri-

guez’ claim: her failure to corroborate the fact that the car

found next to Mr. Flores’ body was registered in her name.

The IJ’s reliance on a lack of corroboration also fails because

the car registration was irrelevant to the issues Ms. Rodri-

7

The IJ commented that “[t]hese statements, though they do not

undercut the central elements of her asylum claim in themselves[,] are

a further demonstration that the respondent is willing to lie.”

A.R.1308 (emphasis added).

16 Nos. 03-3868 & 04-3138

guez presented. Ms. Rodriguez never claimed that Guate-

malan security forces intimidated her because she was the

car’s registered owner; rather, she claimed that they intimi-

dated her because she was the wife of a murdered dissident.

The vehicle registration would have provided little by way

of corroboration. Of much greater import was the proposed

testimony of her expert witnesses, whom she claimed would

have testified that the Guatemalan agents were suspicious

of and scrutinized the activities of university students like

Mr. Flores. Moreover, the experts might have corroborated

her account by demonstrating that the alleged activities of

the unknown individuals were consistent with the manner

in which the government intimidated spouses of slain

opposition figures.8

The IJ relied upon irrelevant inconsistencies in reaching an

adverse credibility finding. The IJ’s credibility determina-

tion thus was unsupported by substantial evidence. Indeed,

the irrelevant vehicle registration became the “linchpin” of

Ms. Rodriguez’ case only because the IJ prevented her

experts from testifying. We turn now to consider this

exclusion in evaluating Ms. Rodriguez’ due process claim.

8

Even assuming that the car registration was critical to Ms.

Rodriguez’ claim, any assertion that she was targeted because of

the registration relied upon its absence from her car, and the

resulting inference that it was absent because government agents

took it when they murdered Mr. Flores. In this circumstance, “a

reasonable trier of fact [would be] compelled to conclude

that such corroborating evidence [wa]s unavailable,” and the

IJ erred in relying on the lack of corroboration. 8 U.S.C.

§ 1252(b)(4).

Nos. 03-3868 & 04-3138 17

2. Due Process

Ms. Rodriguez asserts that the IJ conducted the asylum

hearing in a manner that violated her right to due process

by barring the testimony of Professors Rothenberg and

Cassel. Their testimony was critical to her claim, accord-

ing to Ms. Rodriguez, because their expertise would provide

both corroboration and context for the events that she

described. She further argues that the IJ, in the interest of

time, truncated her testimony and thus prevented her from

fully presenting her case. Moreover, Ms. Rodriguez con-

tends that the IJ ignored the expert evidence that

was presented—Professor Rothenberg’s affidavit—in reach-

ing a decision to deny her application.

The Government responds that the IJ conducted the

hearing, and required corroboration, within the bounds

of its discretion and the process due. It points out that the IJ

afforded Ms. Rodriguez an opportunity to give an offer of

proof and, at any rate, had before it Professor Rothenberg’s

affidavit. As for Professor Cassel, the Government argues

that his proposed testimony was cumulative and that, if Ms.

Rodriguez “believed that further information from Mr.

Cassel might have helped her case, the solution was to

obtain an affidavit from him.” Respondent’s Br. at 35.

Indeed, the Government asserts, the experts could not have

assisted Ms. Rodriguez because they had no knowledge

about her alleged persecution.

“[T]he Fifth Amendment entitles aliens to due process

of law in deportation proceedings.” Reno v. Flores, 507 U.S.

292, 306 (1993). Due process requires that the applicant

be afforded “a meaningful opportunity to be heard,”

Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999), and a

“reasonable opportunity to . . . present evidence on the

18 Nos. 03-3868 & 04-3138

alien’s behalf,” 8 U.S.C. § 1229a(b)(4)(B). “Although

what constitutes ‘a meaningful opportunity to be heard’

is far from clear, we distinguish between two types of

situations when analyzing due process challenges.” Kerciku,

314 F.3d at 917. In the first situation, the IJ limits some

testimony or frequently interrupts that of the applicant. The

IJ does not violate due process by focusing the hearing in

this manner to focus the proceedings and exclude relevant

evidence. Id. “In the second type of situation, by contrast,

the immigration judge violates due process by barring

complete chunks of oral testimony that would support the

applicant’s claims.” Id. at 918. This categorization, while

helpful, is imprecise and the appropriate characterization of

the IJ’s action is, in essence, a matter of degree. In the end,

we must determine whether, given the totality of circum-

stances, the petitioner had a full and fair opportunity to put

on her case.

Here, we must conclude that the actions of the IJ, when

evaluated in their totality, deprived Ms. Rodriguez of her

right to due process.

We have reversed IJ determinations when the IJ “took

over the questioning, so that in the end the judge, rather

than the attorney, had elicited whatever testimony” the

applicant offered. Podio v. INS, 153 F.3d 506, 510 (7th Cir.

1998); see also Kerciku, 314 F.3d at 918. Our review of the

hearing transcript reveals that, in Ms. Rodriguez’ case, the IJ

frequently interrupted her testimony and often allowed her

counsel to ask no more than a few questions in series.

Indeed, at times, the record may be read plausibly as

indicating a certain hostility to Ms. Rodriguez. In any event,

the frequency and length of the IJ’s interruptions raise

significant concern as to whether this questioning was

merely attempting to point Ms. Rodriguez in what the IJ

Nos. 03-3868 & 04-3138 19

thought was “the right direction” or to “focus the hearings

on relevant matters.” Podio, 153 F.3d at 510 (internal quota-

tion marks omitted). Indeed, at times, the IJ’s questioning

clearly assumes the role of counsel for the Government. It

goes beyond clarification or simply filling in the interstices

of Ms. Rodriguez’ testimony and becomes de facto cross-

examination of the witness.

If the IJ’s overly active role in the presentation of Ms.

Rodriguez’ testimony was our only concern, it would be

a fairly close question as to whether there had been a denial

of due process. There are, however, other concerns. More

troubling than the IJ’s questioning was the strict time limit

that the IJ imposed on Ms. Rodriguez, which in turn

prevented her from presenting the readily avail-

able testimony of Professors Rothenberg and Cassel—the

former by telephone, the latter in person. Contrary to the

Government’s apparent assertion, we have never re-

quired that an expert witness testify to the facts of the

particular applicant’s claim. Rather, Ms. Rodriguez tendered

the experts to demonstrate that portions of her account were

consistent with the practices of the Guatemalan govern-

ment, and thus to corroborate her testimony. Nothing in the

curricula vitae of Professors Rothenberg or Cassel demon-

strated that they were unqualified to offer expert evidence,

and their testimony undoubtedly would have been helpful

to the IJ in determining whether Ms. Rodriguez suffered

past persecution. See Niam v. Ashcroft, 354 F.3d 652, 660 (7th

Cir. 2004) (noting that the “spirit” of Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), applies to immigra-

tion proceedings).

For example, Professor Rothenberg’s testimony was

intended to demonstrate that the manners in which Ms.

Rodriguez’ husband and uncle were killed were consis-

20 Nos. 03-3868 & 04-3138

tent with the practices of Guatemalan security forces. It

is possible that this testimony would have alleviated the IJ’s

concern that the men were victims of crime rather than of

government persecution. Moreover, Ms. Rodriguez asserted

that his testimony would demonstrate that the visits by

mysterious agents were consistent with the state’s practice

of intimidating victims’ spouses. Such testimony may have

demonstrated that Mr. Flores’ political opinions had been

imputed to his wife. In addition, according to Ms. Rodri-

guez’ offer of proof, Professor Cassel could demonstrate that

the threat to Ms. Rodriguez in Guatemala survived the

recent change of government; this testimony, potentially,

directly addresses the IJ’s determination that Ms. Rodriguez

faced no further threat.9 Indeed, with the benefit of the

experts’ testimony, the IJ may have been able to confirm or

discount suspicions that led to the denial of her application;

for instance, perhaps the experts could indicate whether it

is “remarkable that [Guatemalans] payed [sic] such close

attention to the license plate numbers.” A.R.1310. The

opportunity for the IJ to ask questions and for the experts to

answer—an opportunity that the IJ liberally exercised with

Ms. Rodriguez—could only have been accomplished with

live testimony. Moreover, despite their potential value to

adjudicating Ms. Rodriguez’ application, the IJ’s only

explanation for not hearing Professor Cassel was the self-

imposed time constraint; the IJ offered no explanation for

excluding Professor Rothenberg’s telephonic testimony.

9

In her offer of proof, Ms. Rodriguez indicated that Professor

Cassel could testify as to the current threat Ms. Rodriguez faced

in Guatemala. In this respect, Professor Cassel’s proposed

testimony differed from that of Professor Rothenberg. Thus,

contrary to the Government’s assertion, Professor Cassel’s

testimony was nonduplicative.

Nos. 03-3868 & 04-3138 21

In short, an evaluation of the record as a whole establishes

that Ms. Rodriguez was denied her right to have

“a meaningful opportunity to be heard.” See Kerciku,

314 F.3d at 918. However, to establish a due process viola-

tion, we also require a petitioner to demonstrate that she

was prejudiced by the IJ’s actions. See id. We find

such prejudice in this case. The proposed expert testimony

went to the heart of Ms. Rodriguez’ claims of past persecu-

tion and fear of future persecution. In addition, if the

testimony presented by Professors Rothenberg and Cassel

had corroborated Ms. Rodriguez’ account, the IJ might have

reached a different conclusion as to her credibility. The

testimony that Ms. Rodriguez sought to introduce “had the

potential for affecting the outcome of” the proceedings, and

she has established a due process violation. Podio, 153 F.3d

at 511 (internal quotation marks omitted). The IJ thus

reached a decision based upon an erroneous credibility

determination and without the evidence necessary to

evaluate Ms. Rodriguez’ application. In such circumstances,

we generally require “a new hearing in compliance with

due process,” and we therefore remand to give Ms. Rodri-

guez an opportunity to fully and fairly present her case.

Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993).10

10

Because we remand for a hearing that comports with due

process, we need not address Ms. Rodriguez’ motion to reopen or

the merits of her asylum claim. On rehearing, Ms. Rodriguez and

the Government will have the opportunity to submit argument

and evidence concerning the claims of poor health and hardship

contained in her motion to reopen. See Uwase v. Ashcroft, 349 F.3d

1039, 1045 (7th Cir. 2003).

22 Nos. 03-3868 & 04-3138

Conclusion

For the foregoing reasons, we grant the petition for

review, vacate the IJ’s decision and remand to the BIA

for further proceedings consistent with this opinion.

PETITION FOR REVIEW GRANTED;

REVERSED and REMANDED

Nos. 03-3868 & 04-3138 23

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-2-05