United States v. 2005-08-03 | 04-70945 | ZOLOTUKHIN VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SERGEI ZOLOTUKHIN,
Petitioner, No. 04-70945
v. Agency No.
 A71-421-603ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 17, 2005—Seattle, Washington
Filed August 3, 2005
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
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COUNSEL
Vicky Dobrin, Dobrin & Han, LLC, Seattle, Washington, for
the petitioner.
Aviva L. Poczter and Mark L. Gross, U.S. Department of Jus-
tice, Washington, D.C., for the respondent.
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OPINION
GOULD, Circuit Judge:
Sergei Zolotukhin, a native and citizen of Russia, petitions
for review of an order of the Board of Immigration Appeals
(BIA) affirming without opinion the immigration judge’s (IJ)
denial of his application for asylum, withholding of removal,
protection under the Convention Against Torture (CAT), and
voluntary departure. Zolotukhin also raises several due pro-
cess claims. We have jurisdiction under 8 U.S.C. § 1252(a).1
The evidence in the record does not compel us to conclude
that the BIA erred in denying Zolotukhin asylum, withholding
of removal, or CAT relief. Nonetheless, we grant the petition
and remand for a new hearing, because Zolotukhin’s hearing
did not comport with due process.
I
[1] “The Fifth Amendment guarantees due process in
deportation proceedings.” Campos-Sanchez v. INS, 164 F.3d
448, 450 (9th Cir. 1999). “A neutral judge is one of the most
basic due process protections.” Castro-Cortez v. INS, 239
F.3d 1037, 1049 (9th Cir. 2001). The record shows that the IJ
improperly prejudged the petitioner’s case. The IJ stated in
the middle of the hearing: “As far as his testimony was that
he actually attends the church as often as he does, I don’t
believe him. But even if I believed him, he doesn’t have a
claim. So, you can move on, or you can . . . try to drag this
out.” The IJ later stated “[Y]ou’re not really a Pentecostal.
You just claim to be a Pentecostal because you don’t want to
1“We review de novo due process challenges to immigration decisions.”
Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003). Where the BIA
summarily adopts the findings and reasoning of the IJ, we review the IJ’s
decision as if it were that of the BIA. Hoque v. Ashcroft, 367 F.3d 1190,
1194 (9th Cir. 2004).
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. . . go to the military. That’s the problem I have with your
case.”2
[2] An alien who faces deportation is entitled to a full and
fair hearing of the alien’s claims and a reasonable opportunity
to present evidence on his or her behalf. See 8 U.S.C.
§ 1229a(b)(4); Castro-Cortez, 239 F.3d at 1049. The IJ’s pre-
judgment of the merits of petitioner’s case led her to deny
Zolotukhin a full and fair opportunity to present evidence on
his behalf, including that the IJ excluded the testimony of sev-
eral key witnesses. See Colmenar v. INS, 210 F.3d 967, 971-
72 (9th Cir. 2000) (holding that, as part of his right to a full
and fair hearing, an alien is entitled to a “reasonable opportu-
nity to present evidence on his behalf”).
A
[3] First, the IJ refused to permit testimony from the peti-
tioner’s grandmother, who was present at the hearing and who
would have testified regarding the religious persecution of the
petitioner’s family in Russia and about the petitioner’s Pente-
costal Christian background. The IJ opined at the hearing that
2The record also includes an affidavit from petitioner’s counsel alleging
that the IJ twice made off-the-record warnings to petitioner to withdraw
his application for asylum and accept voluntary departure, or if petitioner
declined to do so, the IJ would find his asylum application frivolous. Peti-
tioner declined to accept the IJ’s terms, and the IJ later denied him volun-
tary departure. While we lack jurisdiction to review the discretionary
denial of voluntary departure, “[w]e retain jurisdiction to review constitu-
tional claims, even when those claims address a discretionary decision.”
Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir. 2003). The gov-
ernment, in its briefing and at argument, did not dispute that the alleged
off-the-record discussions took place or dispute their content, arguing only
that the statements were outside the record and therefore beyond our
review. However, the alleged statements are cognizable in a due process
challenge, and the IJ’s alleged statements, if they did occur, would be
improper and would establish that the IJ was not acting as a fair and
impartial arbiter. Nonetheless, we ground our decision on the evidence in
the record.
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the grandmother’s testimony was not relevant because the
events to which she would testify occurred too far in the past.
“Due process principles prohibit an IJ from declining to hear
relevant testimony because of a prejudgment about the wit-
ness’s ‘credibility or the probative value of [the] testimony.’ ”
Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056 (9th Cir.
2005); see also Kaur v. Ashcroft, 388 F.3d 734, 736-38 (9th
Cir. 2004) (holding that IJ’s failure to permit testimony by
petitioner’s son denied petitioner opportunity to present evi-
dence on her behalf and therefore denied her a full and fair
hearing). The petitioner’s grandmother could have corrobo-
rated his claims for relief by recounting the past persecution
of his family in Russia as well as his claim that he is a Pente-
costal Christian.
[4] The IJ also cut off testimony from both Zolotukhin and
his mother regarding the past persecution of their family in
Russia and their Pentecostal Christian roots, testimony that
could have corroborated Zolotukhin’s claim that he feared
persecution upon his return to Russia because of his religion
and his membership in a particular social group— his family.
By refusing to permit family members to develop the record
regarding the family’s past persecution, the IJ effectively pre-
cluded the petitioner from establishing eligibility for asylum
or withholding of removal as a member of a particular social
group, his family, which can support an asylum claim. See
Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005) (en
banc) (holding that a family may constitute a “particular
social group,” and the persecution of alien based on his/her
membership therein may support asylum claim).
B
[5] The IJ also refused to permit the telephonic testimony
of Zolotukhin’s expert, Anatoly Pcheltinsev, the Director of
the Institute for Religion and Law in Moscow.3 Pcheltinsev,
3Zolotukhin’s counsel listed Pcheltinsev as a witness and filed a motion
requesting telephonic testimony, because Pcheltinsev lives in Moscow.
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an attorney specializing in protection of religious freedoms in
Russia, could have testified on the current treatment of Pente-
costal Christians in Russia, and how they are treated inside
the Russian military, an issue upon which the IJ partially
based her adverse credibility finding. The IJ relied on a state-
ment in an article by Pcheltinsev for the conclusion that Rus-
sian law would allow the petitioner to seek alternatives to
military service if he was deported. The expert’s testimony
would have been probative as to whether the IJ’s interpreta-
tion of his written materials was correct. The expert also
could have established whether religious objectors are singled
out for disparate treatment on account of a protected ground
by the Russian military. In the circumstances of this proceed-
ing, the denial of expert testimony violated Zolotukhin’s due
process rights. See Lopez-Umanzor, 405 F.3d at 1057 (hold-
ing that IJ’s refusal to hear testimony from petitioner’s
experts violated due process even though IJ had written mate-
rials from the experts because the testimony would have cov-
ered issues not in the written materials and reflected directly
on petitioner’s credibility on points on which the IJ expressed
skepticism).4
II
[6] “For us to grant the petition for review on due process
The IJ did not rule on the motion before the hearing, but at the hearing
concluded that Pcheltinsev had to appear in person if at all, because she
was “not going to do this kind of an expert on the telephone.” Later the
IJ told Zolotukhin’s counsel that she could use her own phone card if she
wanted, but she was “not going to use the Court’s money to bring some-
one who’s talking in Russia.” Zolotukhin’s counsel did not have a phone
card, and as a result there was no expert testimony from Pcheltinsev.
4The IJ’s exclusion of the telephonic expert testimony without prior
notice is also inconsistent as compared to the IJ’s own sua sponte long dis-
tance telephone call to the Whitefish, Montana, church of Zolotukhin’s
mother, in an apparent attempt to investigate the petitioner’s church atten-
dance.
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grounds, Petitioner must show prejudice, ‘which means that
the outcome of the proceeding may have been affected by the
alleged violation.’ ” Id. at 1058. Had the IJ not excluded the
testimony of petitioner’s witnesses, the record might demon-
strate that Zolotukhin’s fear of future persecution based on his
religion or social group was well-founded and that he is enti-
tled to asylum, withholding of removal, or protection under
the CAT. The standard does not demand absolute certainty;
rather prejudice is shown if the violation “potentially . . .
affects the outcome of the proceedings.” Agyeman v. INS, 296
F.3d 871, 884 (9th Cir. 2002) (internal quotation marks omit-
ted). We may infer prejudice even absent any allegations as
to what the petitioner or his witnesses might have said if the
IJ had not cut off or refused to permit their testimony. Colme-
nar, 210 F.3d at 972. The government has argued that the
petitioner lacks good character and will not prevail on his
claims. But even a petitioner with purportedly bad character
and possibly a weak case has a right to a fair hearing. Because
the outcome of the case may have been different absent the
cumulative effect of the several due process violations that we
have described, we hold that the IJ’s conduct was prejudicial
and remand for a hearing that comports with due process.
PETITION GRANTED; REMANDED with instruc-
tions.
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