Jing Feng v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 30, 2023
• Docket: 21-70666
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JING FENG; XIAOTAO SUN, No. 21-70666

Petitioners, Agency Nos. A205-186-749 A205-186-750 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 9, 2023** Las Vegas, Nevada

Before: GRABER, BENNETT, and DESAI, Circuit Judges.

Petitioner Jing Feng is a native and citizen of China who seeks asylum,

withholding of removal, and protection under the Convention Against Torture. She

claims that the Chinese government forced her to have an abortion and have an

IUD inserted in 2011 after she became pregnant with her second child in violation

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of China’s then-active one-child policy.

The immigration judge (“IJ”) denied relief, and the Board of Immigration

Appeals (“BIA”) affirmed. Petitioner timely filed this petition.

Over Petitioner’s objection, the IJ admitted the asylum officer’s notes from

Petitioner’s initial asylum interview. Petitioner contested the accuracy of the notes

and demanded the opportunity to cross-examine the officer. The IJ did not require

the government to “make a good faith effort” to produce the asylum officer at the

hearing. Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1231 (9th Cir. 2021)

(citation omitted). In his written decision, the IJ made an adverse credibility

determination and found the other evidence alone insufficient to support

Petitioner’s claims. The IJ premised his adverse credibility finding on

discrepancies between Petitioner’s testimony at the hearing and the asylum

officer’s notes.

Although the Federal Rules of Evidence do not apply in immigration

proceedings, the Fifth Amendment’s guarantee of due process does apply.

Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009). In the immigration

context, the admission of evidence must be “fundamentally fair.” Id. Specifically,

an asylum officer’s notes must have “sufficient indicia of reliability” to be

admitted into evidence. Singh v. Gonzales, 403 F.3d 1081, 1089 (9th Cir. 2005).

And if a petitioner: (1) objects to the admission of the interviewing officer’s notes,

2 (2) contests a material portion of the notes’ contents, and (3) asks for the officer to

be produced, the government must attempt to make the officer available for cross-

examination. Alcaraz-Enriquez, 19 F.4th at 1231; 8 U.S.C. § 1229a(b)(4)(B). To

prevail on a due process challenge, a petitioner also must show “substantial

prejudice.” Rodriguez-Jimenez v. Garland, 20 F.4th 434, 440 (9th Cir. 2021)

(citation omitted), overruled on other grounds by Alam v. Garland, 11 F.4th 1133,

1135–36 (9th Cir. 2021) (en banc).

Here, the officer’s notes were properly admitted into evidence because they

were reliable. See Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995); Singh, 403

F.3d at 1085–90. But even so, Petitioner should have had the opportunity to cross-

examine the interviewing officer at the hearing because she contested the accuracy

of the notes, asked to cross-examine the asylum officer, and objected to the

admission of the report in the absence of that opportunity. See Alcaraz-Enriquez,

19 F.4th at 1231.

The government’s failure to make a good faith effort to make the officer

available for cross-examination was prejudicial because “the outcome of the

proceeding may have been affected by the alleged violation.” Cinapian, 567 F.3d

at 1074 (quoting Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000)); Alcaraz-

Enriquez, 19 F.4th at 1232 (ruling that the petitioner’s due process rights were

violated when the BIA did not require the government to make a good-faith effort

3 to produce an adverse witness because the IJ could have found the petitioner’s

story more credible if the witness had been cross-examined). We therefore grant

the petition.

Because we grant the petition on this ground, we decline to decide whether

the IJ erred in making an adverse credibility finding. See I.N.S. v. Bagamasbad,

429 U.S. 24, 25 (1976).

Petition GRANTED and REMANDED for further proceedings consistent

with this disposition.