New immigration judge ordered to conduct the hearing

In the following asylum case, Court of Appeals for the second Circuit in New York granted the petition for review and ordered the new asylum hearing be conducted by a dofferent immigration judge as the court believes that based on the record, the applicant would not have a fair hearing. This is an unusual order as most of the time the same judge would conduct the new hearing.

If the immigration judge is biaced, hostal or unfair to you, you may get a new judge.




Jian Zhong Sun v. BIA

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 0.23 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN
WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
http://www.ca2.uscourts.gov/), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE
A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER
ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND
THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 14th day of September, two thousand and seven.
Present: RICHARD J. CARDAMONE,
ROSEMARY S. POOLER,
ROBERT D. SACK,
Circuit Judges.
_____________________________________________________
JIAN ZHONG SUN,
Petitioner,
-v.- 05-4447-ag
BOARD OF IMMIGRATION APPEALS,
Respondent.
For Petitioner: Theodore N. Cox, New York, NY
For Respondent: John F. Salan, Assistant United States Attorney, for
Margaret M. Chiara, United States Attorney for the Western
District of Michigan, Grand Rapids, MI
Petition for review of a decision of the Board of Immigration Appeals (“BIA”).
Jian Zhong Sun, a native and citizen of China, petitions for review of the BIA’s order
affirming Immigration Judge (“IJ”) Noel Ferris’s decision denying Sun’s claim for asylum and
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withholding of removal. We assume the parties’ familiarity with the underlying facts and
procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the
IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005);
Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). This Court reviews the agency’s
factual findings, including adverse credibility determinations, under the substantial evidence
standard. See, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004). Nevertheless,
“the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum
application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). An adverse credibility determination must be based on “specific, cogent
reasons” that “bear a legitimate nexus” to the finding. Secaida-Rosales, 331 F.3d at 307 (internal
quotation marks omitted).
The IJ’s decision, which was speculative and conjectural, was not supported by
substantial evidence. Without any basis in the record for doing so, the IJ hypothesized an
economic motive for Sun’s departure from China and grounded her conclusion on conjecture.
The IJ’s findings are a product of the IJ’s own beliefs about what is and is not plausible in
China, without any record support for these conclusions. These findings are based on improper
assumptions. For example, the IJ determined that it was implausible that Sun’s wife would be
allowed to give birth while her husband was a fugitive from justice, despite being in possession
of the requisite approval of the family planning office. Also, the IJ believed, on no basis other
than her personal views, that the letter from Sun’s wife failed to demonstrate sufficient concern
for his well-being, in a manner that allegedly undermined his claims of having been beaten in
China. This is not substantial evidence that provides adequate support for an adverse credibility
determination.
Moreover, the IJ’s findings with regard to Sun’s corroborative evidence and background
materials are not supported by substantial evidence. The IJ’s assertion that a fugitive from justice
would be safe after the passage of an indeterminate amount of time is factually incorrect. As a
result of this erroneous finding, the IJ speculated that Sun was safe from future persecution.
This assumption gave rise to an erroneous argument that Sun should have submitted evidence
that he was still being sought by the authorities —despite his introduction of a warrant for his
arrest with no expiration date. There is no reason to believe that documentary evidence that a
fugitive is still a matter of concern to the authorities exists, other than mere speculation about the
Chinese criminal justice system. Accordingly, it was error to find that this nonexistent
documentation was reasonably available to the petitioner. See Diallo v. Gonzales, 232 F.3d 279,
285-86 (2d Cir. 2000).
The IJ’s adverse credibility determination also depended upon a mischaracterization of
the petitioner’s demeanor during emotionally charged testimony. Although this Court generally
defers to an IJ’s assessment of demeanor, “we will not uphold credibility findings based upon a
misstatement of the facts in the record.” Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006)
(internal citation, quotation marks, and alterations omitted). Most troubling among these
misstatements of facts is the IJ’s “note for the record” that the petitioner’s emotional reaction to
questions about his daughter were “way out of proportion.”
A credibility finding rooted in flawed reasoning cannot stand. See Secaida-Rosales, 331
F.3d at 307 (concerning credibility findings relating to analysis of testimony). Furthermore, the
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IJ’s sustained commentary on Sun’s demeanor also requires remand to a different IJ in the event
that we grant the petition for review. “[W]hen, as here, an IJ firmly believes a petitioner is not
truthful, repetitive verbally abusive comments and questions taint the proceedings, erode the
appearance of fairness and call into question the results of the proceeding.” Islam v. Gonzales,
469 F.3d 53, 55-56 (2d Cir. 2006).
In addition to the above, the IJ found that a series of key documents, which she correctly
noted were the only evidence of Sun’s identity, marital and family status—and of the alleged
forced abortion—were not authenticated. In Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391
(2d Cir. 2005), we agreed with the conclusion of the Court of Appeals for Third Circuit that the
authentication requirements of 28 C.F.R. § 287.6 did not present an absolute bar to the
introduction of nonconforming documents, as “asylum applicants can not always reasonably be
expected to have an authenticated document from an alleged persecutor.” 428 F.3d at 404. The
same reasoning applies a fortiori to the requirements of the best evidence rule. While respondent
argues that “the Federal Rules of Evidence may . . . guide an IJ regarding the presentation of
evidence” during a removal hearing, this court has only embraced this reasoning in cases that
detail the IJ’s responsibilities to make sure that the evidentiary submissions do not offend against
due process. See, e.g., Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 2003). We have never held
that the Federal Rules of Evidence can serve to bar the introduction of a petitioner’s relevant
evidence in an asylum proceeding.
On the contrary, any holding that the Federal Rules of Evidence (or their common law
equivalents) provide mandatory rules that require ruling certain documents inadmissible would
interfere with an aliens’ statutory and regulatory rights to a reasonable opportunity to present
evidence. See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.1(c). It is likely that it is the
recognition of these implications that motivated both the BIA and this court to note that the best
evidence rule is not applicable in immigration proceedings. In the Matter of —, 5 I. & N. Dec.
484 (BIA 1953); accord United States ex rel. Smith v. Curran, 12 F.2d 636, 637 (2d Cir. 1926).
Accordingly, we find the IJ erred in excluding these documents pursuant to the best evidence
rule, for substantially the same reasons as those stated in Cao He Lin. 428 F.3d at 404-405.
Because these documents go to the heart of petitioner’s claims for asylum and
withholding of removal, in the light of the discussion of the other errors detailed above we
cannot be confident that, with the benefit of the documentary evidence, the IJ would reach the
same conclusion on remand. See Li Hua Lin v. United States DOJ, 453 F.3d 99, 107 (2d Cir.
2006). As IJ Ferris’s conduct of the hearing creates substantial uncertainty as to whether the
record below was fairly and reliably developed, we remand for further proceedings before a
different IJ. See Islam v. Gonzales, 469 F.3d at 56.
Accordingly, the petition for review is GRANTED and we VACATE the decision of the
Board of Immigration Appeals and REMAND for further proceedings before an Immigration
Judge other than IJ Ferris.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
By:
_______________________________
Oliva M. George, Deputy Clerk