Fensong Zhu v. Holder

331 F. App'x 500

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2009
• Docket: No. 05-72337
• Status: Published

Opinions

MEMORANDUM

*

Fensong Zhu petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture. We review the IJ’s credibility findings for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We grant the petition because the IJ did not allow Zhu’s lawyer to cross-examine the government’s key witness — the questioned documents examiner who issued a report opining that Zhu’s documents were fraudulent. Cross-examination should have been allowed. See 8 U.S.C. § 1229a(b)(4)(B) (providing that an alien in a removal hearing must have “a reasonable opportunity ... to cross-examine witnesses presented by the government”); Saidane v. INS, 129 F.3d 1063, 1064-65 (9th Cir.1997). The witness was available by telephone, and, contrary to the government’s assertions, Zhu did object to the IJ’s ruling at the appropriate times and noted specific deficiencies with the report. The result of this error is that the adverse credibility finding was proee-durally flawed.

We remand for a new hearing. See Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir.2009).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.