Juan Mendoza Manimbao v. John Ashcroft, Attorney General

298 F.3d 852, 2002 Cal. Daily Op. Serv. 6888, 2002 Daily Journal DAR 8677, 2002 U.S. App. LEXIS 15411
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 1, 2002
Docket00-71329, INS-A70-184-349
StatusPublished
Cited by9 cases

This text of 298 F.3d 852 (Juan Mendoza Manimbao v. John Ashcroft, Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Juan Mendoza Manimbao v. John Ashcroft, Attorney General, 298 F.3d 852, 2002 Cal. Daily Op. Serv. 6888, 2002 Daily Journal DAR 8677, 2002 U.S. App. LEXIS 15411 (9th Cir. 2002).

Opinions

Opinion by Judge WARDLAW; Dissent by Judge TROTT.

OPINION

WARDLAW, Circuit Judge.

Juan Mendoza Manimbao, a native and citizen of the Philippines, petitions for review of a final order of deportation issued by the Board of Immigration Appeals (“BIA”), denying his applications for asylum and withholding of deportation under the Immigration and Nationality Act (“INA”) sections 208 and 243(h), 8 U.S.C. [854]*854§§ 1158, 1253(h) (1994), and reinstating a period of voluntary departure. The Immigration Judge (“IJ”) failed to make an express credibility finding supported by specific, cogent reasons. Concluding that credibility was the central issue in the case, the BIA substituted itself for the IJ and made its own — adverse—credibility determination. Because, in this case, credibility was the dispositive issue, the BIA erred in (1) failing to remand to the IJ for an express finding, consistent with the requirements of its regulations and the law of our circuit; and (2) requiring Man-imbao to provide corroborative evidence to meet his burden, when, if his testimony were deemed credible, he would have had no obligation to do so.

I. Background

Manimbao entered the United States on June 19, 1992, as a nonimmigrant visitor, with permission to remain until December 18, 1992. On April 11, 1996, the INS issued an Order to Show Cause charging Manimbao with deportability under section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B) (1992), because of his unauthorized presence in the United States.

On August 7, 1996, at deportation proceedings, Manimbao admitted to the factual allegations, conceded his deportability, and applied for asylum, withholding of deportation, and voluntary departure. Man-imbao’s asylum application stated that sometime in 1978 he joined an organization called the Barangay to assist the government in its campaign against communist rebels,, such as the New People’s Army (“NPA”). He actively participated in the Barangay’s public activities, including taking part in 1983 in the late President Marcos’s campaign against communist rebels. The Barangay met with some success, angering the communist rebels. When the NPA learned of the Barangay, it obtained a list of the names of its members. Having found Manimbao on the list, the NPA looted his family’s property and killed their farm animals. Later, one night while he was walking with four companions, the group was attacked by heavily armed men. They shot four of his friends, resulting in the death of one, Nick Santos, and injury to the others. Manimbao managed to escape temporarily, but was captured by the armed men and taken to a secluded area where he was interrogated and beaten. The NPA demanded the names of other Barangay members. A neighbor sought help and the military rescued him. The application also stated that if he returned to his home country he would be “killed for sure,” as members of the NPA “are still looking for [him].”

At his deportation hearing on January 21, 1997, Manimbao testified through an interpreter that he left the Philippines because the NPA had placed his life in jeopardy due to his membership in the Baran-gay. He explained that he joined the Barangay, an organization that opposed the NPA, and supported the government, in 1978. In a somewhat confusing colloquy, he stated that “five of us were walking when — when Nick Santos was killed;” four were shot and four escaped. He then stated: “I was the only one not killed or spared.” Manimbao surmised the men were members of the NPA because he helped the Barangay and communicated with the military, noting the men asked him “who are the people I was with and if the organization is still alive.” He further testified that he had neither informed 'the attackers that he was a member of the Barangay nor had they asked him. The IJ asked Manimbao to clarify who was killed and how many were injured the night of the attack by armed men. Man-imbao clarified his earlier testimony, stating that Santos had been shot along with three other men and that he (Manimbao) [855]*855was not killed, because the NPA wanted to interrogate Mm for additional information about the Barangay. Manimbao also stated that the three men, other than Santos, who had been shot survived. Following this incident, the NPA created problems in his town, harassing his family and the businesspeople. Manimbao believes the NPA will harm him if he returns to his country.

The IJ demed Petitioner’s applications for asylum and withholding of deportation, but granted voluntary departure. The IJ correctly recogmzed that the applicant’s testimony alone may sustain his burden of establishing eligibility for asylum. The IJ then seized upon seeming inconsistencies in Manimbao’s testimony (all of which actually had been clarified and reconciled within the transcript) to decide that Man-imbao’s testimony alone was not sufficiently detailed, plausible, and complete to meet his burden. The IJ did not, however, find that Manimbao was not credible.

Both the government and the BIA recognized this flaw in the IJ’s decision, but attempted nevertheless to circumvent both BIA and Ninth Circuit law governing the standards for credibility determinations by concluding that the IJ had made an “implicit” finding. The BIA acknowledged “that the credibility of [Manimbao’s] testimony is central to this case,” and found that the IJ “implicitly” determined Manim-bao was not credible. It then scoured the record to find support for the adverse credibility decision the IJ had failed to make. Finally, the BIA dismissed Manim-bao’s petition for failure “to meet his burden of establishing past persecution or a well-founded fear of [future] persecution....” Chairman Paul Wickham Schmidt dissented:

The Immigration Judge did not make a credibility finding that satisfies the standards we set forth in Matter of A-S, 21 I & N Dec. 1106 (BIA 1998). The majority attempts to remedy this defect by making an adverse credibility finding for the first time on appeal. Ninth Circuit law does not permit us to do this. Abovian v. INS, [219 F.3d 972, 978] (9th Cir.2000); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999).

Manimbao filed a timely petition for review. He contends that the BIA erred in making an adverse credibility determination for the first time on appeal in violation of his Fifth Amendment right to due process.

II. Standard of Review

“We review credibility findings under a substantial evidence standard.” Aguilera-Cota v. United States INS, 914 F.2d 1375, 1381 (9th Cir.1990). Although we accord substantial deference to an IJ’s credibility finding, the IJ must make one, and offer a “specific, cogent reason for any stated disbelief.” Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). “The IJ must not only articulate the basis for a negative credibility finding, but those reasons must be substantial and bear a legitimate nexus to the finding.” Aguilera-Cota, 914 F.2d at 1381.

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