Colmenar v. Immigration and Naturalization Serv., 210 F.3d 967 (9th Cir. 2000)

MICHAEL DALY HAWKINS, Circuit Judge:

Gil llano Colmenar petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for asylum and withholding of deportation. Colmenar argues that the BIA’s decision is not supported by substantial evidence and that he was denied a full and fair hearing before the Immigration Judge (“IJ”). We agree that the IJ denied Colmenar a full and fair hearing and that this prejudiced Colmenar’s ability to present evidence in support of his asylum claim. Accordingly, we grant his petition for review and remand to the BIA with instructions to order a new hearing before the IJ.3

I. BACKGROUND

Colmenar, a native and citizen of the Philippines, entered the United States in May 1992 and applied for asylum and withholding of deportation several months later. In his application for asylum, Colme-nar presented a detailed account of his alleged persecution. He stated that he was working as a dentist for the Armed Forces of the Philippines when a 17-year-old boy came to him for treatment at a dental clinic. Colmenar administered a local anesthetic to the boy, who reacted to the drug and went into shock. Colmenar and the senior dentist revived the boy and sent him home with instructions to return in a week. When the boy did not return, Colmenar assumed that he no longer needed treatment.

Several weeks later, Colmenar received a letter from “very unhappy people.” The letter contained a black ribbon, a symbol to Colmenar that it was sent by the New People’s Army (“NPA”), and stated that the boy had died several weeks after being treated by Colmenar. The letter also stated that the boy had been the son of a high-ranking NPA leader and that Colmenar would pay “very dearly” for the boy’s death. Colmenar reported the letter to the police, who said they would investigate the matter.

Sometime after receiving this letter, Colmenar was walking home from a friend’s house when a man on a motorcycle passed by. The man stopped about 20 feet ahead of him and threw a Molotov cocktail that exploded at Colmenar’s feet. Colme-nar was taken to a hospital, where he underwent surgery to remove the shards

from his feet. He stayed in bed for two weeks and was on crutches for two months. Then, fearing for his safety, he moved to Manila to live with an aunt.

One month later, he was walking back from church when he saw two men standing by the gate of his aunt’s house, talking and pointing at the gate. This frightened Colmenar so he hid behind a bush and waited for them to leave. Two days later, he saw the same men parked in a jeep in front of the house. The men saw Colme-nar, and one of them chased after him. Colmenar’s aunt was backing out of the driveway in her car, and when he screamed for help, she rescued him and drove him back to his hometown. His parents then decided that Colmenar should leave the country, so he filed an indefinite leave of absence from his job and departed for the United States.

In his written application, Colmenar also explained why he thought these things had happened to him:

Colmenar’s deportation hearing was held on January 24, 1997, before Immigration Judge Jay Segal. At the start of the hearing, his attorney asked for a continuance because Colmenar’s wife had applied for an adjustment of status. The IJ denied this request, stating that he wanted to resolve the case that day. He also stated, “[T]o be very honest, I have reviewed this case ... and basically it’s because the — as I see it, it’s a matter of a possible medical malpractice suit rather than anything else. So I have no idea what the basis for the claim is.” The IJ then swore in Colmenar as a witness and asked whether everything in his written application was true. When Colmenar replied yes, the IJ turned the questioning over to Colmenar’s attorney.

The attorney started with a few preliminary questions and then asked Colmenar why he feared returning to the Philippines. Colmenar briefly described his encounter with the man on the motorcycle. He said he was walking home from a friend’s house when the man passed by, stopped about 20 feet away, “took á good look” at Colme-nar’s face and then threw a Molotov cocktail that exploded at Colmenar’s feet. At this point in his testimony, the following exchange occurred between Colmenar, his attorney, and the IJ:

IJ: All right, thank you.

After his attorney qualified Colmenar for voluntary departure, the government attorney asked to question Colmenar. The government attorney asked Colmenar whether he wanted to say anything else that would substantiate his fear of returning to the Philippines. Colmenar asked to speak to his own attorney about the question, but the IJ denied this request. Colmenar hesitated, and the IJ repeated the government’s question. Colmenar responded by saying, “Well, first and foremost, Your Honor, with the alleged medical malpractice, ...” He then attempted to defend his treatment of the 17-year-old patient. The IJ explained that the court was not adjudicating his competence as a doctor and then stated, “But I know you wish to exculpate yourself and make a statement on that, and go ahead.” When Colmenar finished defend

ing his treatment, the IJ said, “All right, thank you,” and the testimony ended.

The IJ denied Colmenar’s request for asylum and withholding of deportation. He found that the attacks against Colme-nar were motivated by the death of the 17-year-old boy, not by Colmenar’s political opinion. On appeal to the BIA, Colmenar argued that he met the statutory requirements for asylum and that the IJ denied him a full and fair hearing. The BIA rejected both arguments. It found that the IJ provided Colmenar ample opportunity to present evidence in support of his claim. It also agreed with the IJ that the attacks against Colmenar were personal acts of revenge and were not motivated by his political opinion. Colmenar then appealed to this court, raising the same claims he raised to the BIA.

II. DISCUSSION

We agree with the BIA that, based on the evidence in the record, Colmenar has not established that he was persecuted on account of his political opinion. The record contains little evidence that Colmenar expressed a political opinion, that the NPA knew of his political opinion, or that the NPA targeted him on account of that opinion. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). However, we conclude that the IJ prevented Colmenar from presenting more detailed evidence in support of his claim and that the case must therefore be remanded for a new hearing.

The Fifth Amendment guarantees due process in deportation proceedings. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). As a result, an alien who faces deportation is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf. See id; 8 U.S.C. § 1229a(b)(4). We review claims of due process violations in deportation proceedings de novo, see Hartooni v. INS, 21 F.3d 336, 339 (9th Cir.1994), and will reverse the BIA’s decision on due process grounds if the proceeding was “so fundamentally unfair that the alien was prevented from reasonably presenting his case,” Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir.1986). We also require an alien to show prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation. See Campos-Sanchez, 164 F.3d at 450; Hartooni 21 F.3d at 340.

The transcript in this case makes clear that Colmenar was not given a full and fair hearing or a reasonable opportunity to present evidence on his behalf. At the start of the hearing, the IJ indicated that he had already judged Colmenar’s claim, referring to the case as a “possible medical malpractice suit rather than anything else,” and stating that he had “no idea what the basis for the claim is.” Then, when testimony began, the IJ behaved not as a neutral fact-finder interested in hearing the petitioner’s evidence, but as a partisan adjudicator seeking to intimidate Colmenar and his counsel. The IJ refused to let Colmenar testify about who he believed had thrown the Molotov cocktail at him, despite the circumstantial evidence linking the incident to the threatening letter. He also refused to let Colmenar testify about anything that was included in his written application. This prevented Colmenar from elaborating on the fears he had expressed in his application. It also frustrated his attorney to the point that he was forced to end his examination of Colmenar after only a handful of questions.

The IJ’s conduct was directly contrary to the BIA’s decision in Matter of Fefe, 20 I & N Dec. 116, 1989 WL 331875 (BIA 1989). There, the BIA stressed that the “full examination of an applicant [is] an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the process itself.” Id. at 118. The BIA also stated that in most instances, an IJ should not rely on an alien’s written application alone, but should solicit oral testimony from the applicant. See id. This serves two purposes, according to the BIA. First,

it enables an IJ to determine when an alien has fabricated a claim in his written application. See id. Second, it allows an alien to “establish! ] eligibility for asylum by means of his oral testimony when such eligibility would not have been established by the documents alone.” Id.

Here, the IJ did his best to prevent a full examination of Colmenar, relying instead almost exclusively on Colmenar’s written application to make his decision. It is true that the government attorney asked Colmenar at the end of his testimony whether he had anything to add in support of his claim, and that the IJ repeated this question to Colmenar. But Colmenar was clearly nonplused by this point and could not be expected to know what evidence was essential to making his claim; that is, in all likelihood, why he asked to consult with his attorney. Moreover, after Colmenar responded “first and foremost” and defended his treatment of the 17-year-old, the IJ did not ask whether he had any other points. Had the IJ done so, it is possible that Colmenar would have provided additional evidence in support of his claim.

Colmenar was clearly prejudiced by the IJ’s conduct. His written application stated that he supported the government in his own way and resisted communist forces; that the NPA believed he was planted as an informant to kill the NPA leader’s son and to destroy the NPA; and that the NPA viewed his cooperation with the police and his refusal to make financial contributions as indicative of his opposition.4 While these conclusory assertions by themselves are insufficient to support a claim for asylum, see Maroufi v. INS, 772 F.2d 597, 599 (9th Cir.1985), it is possible that, given a reasonable opportunity to testify, Colmenar could explain how he reached these conclusions. Indeed, Colmenar states in his brief that had he been allowed to testify, “he intended to establish that his attacker, the New People’s Army (‘NPA’), was motivated by Petitioner’s political opinion” and “that the NPA had imputed a political opinion to him.” Although Colmenar does not explain exactly what evidence he would have presented to support these assertions, we do not require such an explanation to find prejudice. See Martin Perez-Lastor v. INS, 208 F.3d 773, 782 (9th Cir.2000) (drawing inference of prejudice despite lack of evidence as to what petitioner would have testified); Campos-Sanchez, 164 F.3d at 450 (finding prejudice without requiring petitioner to explain what arguments he would have raised below).5 We require the petitioner to show only that the IJ’s conduct “potentially [affected] the outcome of the proceedings.” Campos-Sanchez, 164 F.3d at 450 (quoting United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.1986)). Colmenar has met this burden. Therefore, he was prejudiced by the lack of a full and fair hearing.

We do not enjoy second-guessing the way Immigration Judges run their courtrooms. But when a petitioner has so clearly been denied a full and fair hearing, we have no choice. Judges do little to impress the world that this country is the last best hope for freedom by displaying the hard hand and closed mind of the forces asylum seekers are fleeing. Better that we hear these claims out fully and fairly and then make an informed judgment on the merits. This is consistent with our role as judges, and the values of our Constitution demand no less.

PETITION GRANTED; CASE REMANDED WITH INSTRUCTIONS.