stating that the petitioner alleged that “members of the Guatemalan military were persecuting her and her family, including her common-law husband who is a former member of the Guatemalan military,” and subsequently referring to him simply as “her husband”
How later courts described this case
- stating that the petitioner alleged that “members of the Guatemalan military were persecuting her and her family, including her common-law husband who is a former member of the Guatemalan military,” and subsequently referring to him simply as “her husband”
- explaining that “[p]rejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings,” and analyzing only “the proceedings” that occurred before the IJ (emphasis added)
- finding that the immigration judge’s confusing instructions violated due process because they suggested that the asylum-seeker had to choose between her right to counsel and her right to testify
- finding a due process violation where the IJ inadequately explained the procedures of the hearing to an unrepresented alien, failed to inform her she had a right to counsel and to present testimony, and failed to explain any of her rights
Written by the judges who cited it.
The opinion
TROTT, Circuit Judge,
Dissenting:
I respectfully disagree with the majority opinion’s conclusions (1) that Jacinto did not receive a full and fair hearing, (2) that the immigration judges failed in their responsibilities, (3) that Jacinto did not understand her rights with respect to the hearing procedure, (4) that she was denied a reasonable opportunity to present evidence, and (5) that she was the subject of two cross-examinations. Thus, I conclude that she was not denied due process.
Before the hearings, Jacinto received written notice of her rights. Then, on August 24, 1995, after her son’s right to an attorney was explained, I.J. Martin asked, “Do you understand all that I’ve said so far, Ms. Jacinto Carillo?” Answer, “Yes.” When she said she wished to speak for her son at the initial deportability hearing, the I.J. explained her son’s rights — to present evidence in his own behalf, to examine and object to evidence, and to question any witnesses. He asked her, “Do you understand the rights that your son enjoys?” *736 Her answer was, “Yes.” At the same hearing, the I.J. told her that she had the same rights as did her son, including the rights to an attorney and to present evidence on her own behalf. He said, “The same thing applies to you. Do you understand?” Her answer was, “Yes.” At the end of that hearing, the I.J. again asked, “Do you understand all that I’ve said?” Her answer was, “Yes, Your Honor.” Then, she had over four months to get ready for the hearings.
At the January 11, 1996, asylum hearing, she was again given an opportunity to have a lawyer, but she chose “to speak for herself.” She submitted documents on her behalf and called a witness, Francisco Lopez, who made her case.
Where I do agree with the majority opinion is on its conclusion that Jacinto did not understand voluntary departure. But I cannot in good conscience fault the I.J.S for depriving this petitioner of due process. The I.J. presiding at the asylum hearing was helping her. If he had simply said, “Okay, your case, go ahead,” I think we would fault the I.J. for throwing Jacin-to to the wolves.
Accordingly, I would restrict the remand in this case to the issue of voluntary departure.