Xue Tong Zou v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 22, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-10716
________________________
Agency No. A077-997-838
XUE TONG ZOU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 22, 2010)
Before BARKETT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Xue Tong Zou, a Chinese national, petitions for review of the final order of
the Board of Immigration Appeals (“BIA”), which affirmed the Immigration
Judge’s (“IJ”) denial of his claims for asylum and withholding of removal under
the Immigration and Nationality Act, 8 U.S.C. §1101 et seq., and relief under the

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United Nations Convention Against Torture. Both the Immigration Judge and
Board of Immigration Appeals rejected Zou’s application for asylum, based partly
on a government expert’s report concluding that Zou submitted fraudulent
documents in support of his claim.
Zou claims that the government’s handling of the case violated his due
process rights under the Fifth Amendment. Specifically, Zou claims that the when1
the government refused to produce its expert as a witness despite a promise to do
so, the hearing provided to him was fundamentally unfair. We agree and remand
the case with instruction that the government shall produce its expert as a witness.
I. BACKGROUND
Zou concedes that he illegally entered the United States in February 2002.
In March 2002, the Department of Homeland Security issued a notice to appear,
charging that Zou was subject to removal as an immigrant without valid entry
documents. In September 2002, Zou filed an application for asylum. He claimed
asylum eligibility based on fear of future persecution due to his resistance to
China’s family planning policies.
In his asylum application, Zou stated that he was born in 1973 and his wife,
Xie Shou Jin, was born in 1975. They first met in 1994 and began living together
“No person shall . . . be deprived of life, liberty, or property, without due process of law1
. . . .” U.S. Const. amend. V.
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in 1995, but decided not to marry because they were below the minimum age. In
October 1996, Jin gave birth to their child, who was adopted by a neighboring
family in January 1997. In August 2001, Jin became pregnant for a second time.
The couple sought and obtained a marriage certificate from the government and
married in September of 2001. However, before they could register their
completed marriage with the government, a neighbor informed the authorities that
the couple had previously had a child.
Based on this information, Zou claims that Chinese family planning officials
threatened to sterilize him if his wife did not have an abortion. Due to the threats,
the couple went into hiding September 2001 and Zou fled China the following
month. Zou’s wife remained in hiding in China and gave birth to her second child
in June 2002. Zou claims family planning officials discovered his wife in 2003
and forcibly sterilized her. Zou contends that if not granted asylum, he would be
fined and forcibly sterilized upon his return to China.
In support of his application, Zou filed a copy of an October 2001 notice
from the Chinese family planning officials finding that he violated family planning
laws and was required to report for sterilization. Additionally, he filed copies of
notices from 2002 and 2003 in which Chinese officials demanded that he and his
wife report for a fine and sterilization. A 2003 operation certificate reported that
Zou’s wife had been sterilized and a letter from Zou’s wife stated that the
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sterilization was involuntary. A letter, which appears to be from Zou’s mother,
reported that in November 2003, family planning officials arrested Zou’s parents
for a second time because officials could not find him. Zou also filed (1) a 2003
notarial certificate stating that Zou and his wife married in September 2001; (2) a2
2002 birth certificate stating that a daughter was born to Zou and his wife; and (3)
a birth certificate dated October 1996 stating that a son was born to Zou and his
wife.
In response to Zou’s petition for asylum, the government had Elaine
Wooten, a forensic document examiner with the Department of Homeland
Security, analyze the documents submitted by Zou. In her forensic document
laboratory report, Wooten concluded, in relevant part, that (1) she could not
authenticate the marriage certificate, (2) that the sterilization certificate was
“unlikely genuine,” and (3) both birth certificates were counterfeit. Wooten
assigned a range of authenticity to the remaining documents, finding most to be
indeterminable.
Zou hired Larry Ziegler, a former government forensic document examiner
now in private practice, to counter Wooten’s laboratory report. Ziegler examined
the documents and assembled his own forensic document laboratory report.
The IJ noted that notarial certificates have limited value because China has a “fee for2
service” notarial system and these documents may be bought to reflect the purchaser’s
statements.
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Ziegler found that the notarial marriage certificate was genuine. Ziegler also
concluded that it could not be conclusively determined whether the birth and
sterilization certificates were genuine and it was therefore improper to consider
them counterfeit. Ziegler stated that proper procedure under laboratory policy
would be to report that no determination could be made. Ziegler testified to his
conclusions at Zou’s initial hearing.
At the time Ms. Wooten’s written report was admitted, Zou orally requested
that Ms. Wooten be subpoenaed to testify and filed a motion accordingly. The
government stated that a subpoena was unnecessary as Wooten would be made
available at the hearing. The IJ accepted this promise and declined to issue a
subpoena for Wooten.
A hearing on the merits of Zou’s claims was held in four parts: June 2005,
August 2005, December 2005 and finally, March 2006. Wooten was scheduled to
testify at the August 2005 hearing, but was never called as a witness due to time
constraints. The government recognized its failure to produce Wooten and
promised that Wooten would be made available at a later date.
Despite Zou’s objection, Wooten was not made available at the two
subsequent hearings. When asked by the IJ when Wooten might be available,
government counsel admitted in both instances that they had failed to contact her
and request her appearance. In her ruling, the IJ noted Wooten’s absence, but
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found that Wooten’s report referencing fraudulent documents, coupled with
inconsistences in Zou’s testimony were enough to find that Zou’s story was not
credible. The IJ’s opinion states that she afforded “great weight” to Wooten’s
report in making her ruling. Relying partly on her determination that Zou was not
a credible witness, the IJ denied Zou’s petition for asylum.
The denial was affirmed by the BIA, which found that the IJ’s credibility
findings were not clearly erroneous. Zou then appealed the case to this court,
which granted a motion to remand the case back to the BIA for consideration of
Zou’s due process argument. On its second review, the BIA again affirmed the
decision of the IJ, holding that the failure of the government to produce its witness
did not constitute a due process violation.
In its decision, the BIA adopted and incorporated by reference its previous
decision regarding the merits of Zou’s applications for relief. The BIA asserted
that Zou was given the opportunity to call his expert witness to dispute the
government’s findings regarding the authenticity of the documents submitted. The
BIA concluded that such an opportunity satisfies the government’s burden of
providing Zou a full and fair hearing in an immigration proceeding. As such, the
BIA asserted that the government was not legally bound to produce Wooten,
despite their promises to do so. Zou now seeks relief from the BIA’s decision.
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II. SCOPE OF REVIEW
We review only the BIA’s decision, except to the extent the BIA
expressly adopted the IJ’s reasoning. See Lin v. U.S. Att’y Gen. 555 F. 3d 1310,
1314 (11th Cir. 2009). We review legal conclusions de novo. See id. Credibility
determinations and factual findings are reviewed under the substantial evidence
test and are left undisturbed if “supported by reasonable, substantial, and probative
evidence.” Id.
Here, the BIA expressly adopted the IJ’s findings, including her partial
adverse credibility determination regarding Zou. The IJ determined that Zou
“submitted documents that appeared to be fraudulent or counterfeit and that relates
to his credibility . . . .” The BIA incorporated this determination in its second
opinion, which is now under review. As such, the IJ’s determination regarding the
authenticity of the documents in question fall squarely before this court.
III. DISCUSSION
Aliens are entitled to due process of law in deportation hearings. Ibrahim v.
U.S. I.N.S., 821 F.2d 1547, 1550 (11th Cir. 1987). This due process requirement is
satisfied only by a full and fair hearing. Wong Yang Sung v. McGrath, 339 U.S.
33, 49-51, 70 S. Ct. 445, 453-54 (1950). In order to establish that they did not
receive a full and fair hearing, “aliens must show that they were deprived of liberty
without due process of law, and that the asserted errors caused them substantial
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prejudice.” Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003)
(per curiam).
Zou contends that the government’s failure to produce a promised witness
deprived him of his right to a fair hearing. We agree. Zou timely requested a
subpoena so that he could examine Wooten at his hearing. He did so both orally
and in writing. The IJ declined to issue the subpoena based wholly upon the
representation by the government that they would produce the witness. Zou was
therefore left without immediate recourse when the government failed to follow
through on its promise. The government simply cannot fail to live up to its
promise and then reap benefits from that failure.3
Additionally, the failure was not a mere oversight. The record shows that
after time ran long at the August 2005 hearing, government counsel failed to even
contact Wooten to request her appearance at the December 2005 or March 2006
hearings. When questioned by the IJ at both hearings, government counsel
admitted that they had not been in contact with Wooten and were unaware of her
whereabouts. This repeated failure shows utter disregard for the promises made to
Zou and the IJ.
It is very disappointing to have a situation where the government’s lawyer promises to3
produce a witness and then makes no effort to do so despite repeated opportunities followed by
an argument before us that there was no obligation to do so. This type of playing “fast and
loose” with the system is inconsistent with basic notions of due process and fairness.
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The IJ decided to move forward without Wooten’s testimony in an attempt
to conclude the case without granting a continuance. While an IJ has considerable
authority to regulate the course of the hearing, the Immigration and Nationality Act
provides that an alien must be permitted a reasonable opportunity to cross-examine
witnesses presented by the government. 8 U.S.C. § 1229a(b)(4)(B). While the
statute on its face does not give an alien the right to cross-examine a witness not
called by the government, courts have recognized that the statutory purposes
behind the provision “would be frustrated if the government's choice whether to
produce a witness or to use a hearsay statement [were] wholly unfettered.”
Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir. 1988).
The same reasoning applies in the instant case. The IJ’s broad authority to
regulate the course of the proceeding does not trump Zou’s constitutional right to a
fair hearing. The government created the duty to produce the witness by promising
to do so. It is no answer to suggest that because the Federal Rules of Evidence do
not control administrative proceedings, the government can conduct its affairs in
this fashion. The due process clause of our Constitution requires basic fairness
regardless of the forum.
The government’s failure undercut Zou’s opportunity to fully present his
case. This denial was not harmless, as Zou was prohibited from cross-examining
the witness whose report went to the heart of Zou’s credibility and was ultimately
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determinative of the case. Therefore, the errors asserted caused Zou substantial
prejudice and denied him the opportunity for a fair hearing.
IV. CONCLUSION
It is clear that the government’s conduct deprived Zou of fair hearing, and as
such, his due process rights were violated. Therefore, we remand the case to the
BIA for remand to the IJ for a new hearing where the government produces its
expert witness.4
REVERSED AND REMANDED.
We indicate nothing as to the final outcome of this matter. Our ruling is that under the4
particular circumstances of this case, Zou must be given the right to cross examine the
government’s expert witness.
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BARKETT, Circuit Judge, specially concurring:
I agree with the majority that the government’s refusal to produce its expert
witness, despite its promise to do so, violated Mr. Zou’s Due Process rights such
that reversal and remand for a new hearing is necessary. I would also note that this
new hearing is a clean slate for Mr. Zou as well to present any evidence of his
“other resistance,” as provided for by Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1330-
31 (11th Cir. 2009), which was published after briefing was completed in this
appeal.
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