Norma Antonia Jacinto and Ronald Garcia v. Immigration and Naturalization Service, Opinion

208 F.3d 725, 2000 U.S. App. LEXIS 3757, 2000 WL 271896
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 14, 2000
Docket98-70321
StatusPublished
Cited by115 cases

This text of 208 F.3d 725 (Norma Antonia Jacinto and Ronald Garcia v. Immigration and Naturalization Service, Opinion) 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.

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Norma Antonia Jacinto and Ronald Garcia v. Immigration and Naturalization Service, Opinion, 208 F.3d 725, 2000 U.S. App. LEXIS 3757, 2000 WL 271896 (9th Cir. 2000).

Opinions

BRIGHT, Circuit Judge:

Norma Antonia Jacinto Carrillo (“Jacin-to”) and her son, Ronald Garcia, are natives and citizens of Guatemala. On behalf of herself and her son, Jacinto1 petitions this court for review of the Board of Immigration Appeals’ (“Board”) decision denying her application for asylum and withholding of deportation. She also contests the Board’s denial of voluntary departure pursuant to section 244(e) of the Immigration and Nationality Act (“Act”). 8 U.S.C. § 1254(e). We have jurisdiction over this petition pursuant to 8 U.S.C. § 1105a(a).

I.

In December, 1994, Jacinto filed an affirmative asylum application with the Immigration and Naturalization Service (“INS”). Therein she 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. In March, 1995, the INS issued an Order to Show Cause and Notice of Hearing.

Following two hearings, one on August 25, 1995, and the second on January 11, 1996, the Immigration Judge denied Jacin-to’s application for asylum, withholding of deportation, and voluntary departure. See Admin. R. at 29-30. The Immigration Judge found that Jacinto did not have a well-founded fear of persecution because she could not explain why members of the military were pursuing her and her husband and had not demonstrated a subjective fear of persecution. In addition, the Immigration Judge found that Jacinto’s testimony throughout the proceedings was not credible. See Admin. R. at 29-30.

Jacinto appealed the Immigration Judge’s decision to the Board arguing that her right to a fair hearing had been denied and that the Immigration Judge erred when he denied her application for asylum. The Board determined that the Immigration Judge did not violate Jacinto’s due process rights and that the Immigration Judge properly held that Jacinto had failed to establish a well-founded fear of persecution. The Board also affirmed the Immigration Judge’s decision ruling Jacin-to. ineligiblefor voluntary departure due to Jacinto’s statements that she was unwilling to leave the United States.

Jacinto petitions this court and argues that the Board erred when it failed to find that the Immigration Judge denied her a full and fair hearing by not permitting Jacinto to testify by narration, and otherwise in the manner of conducting the hearing. In addition, Jacinto argues that the Board erred by failing to adequately review the evidence and by failing to find that the Immigration Judge did not adequately’ seek to qualify Jacinto for voluntary departure.

We reverse .and remand on the ground that Jacinto’s due process rights were violated.

II.

This court reviews claims of due process violations in deportation proceedings de novo. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir.1994).

The Fifth Amendment guarantees that individuals subject to deportation proceedings receive ,due process. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). Due process requires that an alien receive a full and fair hearing. See id. In addition to constitutional protections, there are statutory and regulatory safeguards as well. See Barraza Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir.1990). For example, individuals in de[728]*728portation proceedings are entitled to present personal testimony in their behalf. See 8 C.F.R. § 240.10(a)(4)(1999) (respondent has a reasonable opportunity to present evidence in his or her behalf); 8 U.S.C. § 1229a(b)(l) (immigration judge shall receive evidence). When these protections are denied, and such denial results in prejudice, the constitutional guarantee of due process has been denied. See Campos-Sanchez, 164 F.3d at 450; Barraza Rivera, 913 F.2d at 1447. Prejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings. See Campos-Sanchez, 164 F.3d at 450.

The case record consisted of two hearings with different immigration judges presiding at each hearing. At the first hearing, the Immigration Judge, in considering only the case of Ronald Garcia, informed Jacinto that she had a right to have an 'attorney speak for her son or that she could speak for her son. See Admin. R. at 33-34. The judge did not advise her that either way she could be a witness for him. Similarly, at her second hearing, where her application was to be considered, she was offered a choice between having an attorney and speaking for herself; again, the implication was that she might not be able to speak, i.e., testify, if she selected an attorney to present her arguments. See Admin. R. at 47. The Immigration Judge then told Jacinto that she could present documentary evidence in support of her asylum application and that she could call witnesses in support of her claim. See Admin. R. at 48. The Immigration Judge informed her that the government also might be submitting documentary evidence against her. See id. The Immigration Judge further informed Jacinto that the judge would question her, and counsel for the government would follow with further questioning. See Admin. R. at 48-49.

In our view, this information was incomplete and inadequate to satisfy the “full and fair hearing” requirement. First, the immigration judges inadequately explained the hearings’ procedures to Jacinto; neither judge asked, or otherwise determined, whether Jacinto understood the legal procedures, and neither judge explained what Jacinto had to prove in order to establish asylum. Second, the judges failed to explain adequately what Jacinto’s various roles could be at the hearing. They did not sufficiently explain that Jacinto could be a witness even if she obtained an attorney. The judges also failed to explain, for example, how the hearing would be conducted if Jacinto chose to represent herself. At no point was Jacinto advised that she could both testify on her own behalf and serve as an advocate by making arguments to the judge and explaining the evidence to him.2 Third, while Jacinto was told that she would be questioned by the judge and counsel for the government, she was not told that she could present her own affirmative testimony in narrative form. From our reading of the record, we conclude that Jacinto did not understand her rights in the hearing procedure.

In addition to receiving an inadequate explanation of her rights, Jacinto was also denied a “reasonable opportunity” to present her evidence. See 8 C.F.R. § 240.10(a)(4)(1999) (providing that alien will have a reasonable opportunity to present evidence).

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208 F.3d 725, 2000 U.S. App. LEXIS 3757, 2000 WL 271896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norma-antonia-jacinto-and-ronald-garcia-v-immigration-and-naturalization-ca9-2000.