United States v. 2009-04-01 | 06-71048 | KAUR V. HOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RAJWINDER KAUR; HARPAL SINGH
CHEEMA, No. 06-71048
Petitioners, Agency Nos.
v. A072-484-174  A072-484-175ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 21, 2008—Las Vegas, Nevada
Filed April 1, 2009
Before: John T. Noonan, M. Margaret McKeown and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge Noonan;
Concurrence by Judge Rawlinson
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COUNSEL
Robert B. Jobe, San Francisco, California, for the petitioners.
Christopher C. Fuller, Department of Justice, Washington,
D.C., for the respondent.
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OPINION
McKEOWN, Circuit Judge:
Harpal Singh Cheema and his wife Rajwinder Kaur appeal
from the Board of Immigration Appeals’ (“BIA”) decision
denying Cheema asylum and withholding of deportation1 and
denying Kaur asylum. We dismiss Cheema’s appeal as moot.
We reverse the BIA’s denial of asylum for Kaur and remand
for further proceedings.
Kaur found herself in a fundamentally unfair posture on her
second trip to the BIA. The Board relied on classified evi-
dence without giving her the barest summary notice required
by the regulations, and the Board overrode the Immigration
Judge’s (“IJ”) affirmative credibility finding by sanctioning
the IJ’s passing, unspecified reference to “lack of candor.”
These errors go to the heart of the asylum ruling and require
a remand to the Board.
BACKGROUND
The petitioners were before this court in Cheema v. Ash-
croft, 383 F.3d 848 (9th Cir. 2004), which describes the
lengthy immigration proceedings involving this couple and
the government’s allegations that they engaged in terrorist
activity. We held that “the Board erred in determining
whether Cheema was ‘a danger to the security of the United
States,’ ” and we remanded for determination under the cor-
rect legal standard. Id. at 859. We affirmed denial of Chee-
ma’s claim under the Convention Against Torture (“CAT”).
Because we were “compelled to conclude that there is no evi-
dence that Kaur engaged in terrorist activity,” id., her case
was remanded for the Attorney General to exercise his discre-
1Because deportation proceedings began before April 1, 1997, the with-
holding claim is for withholding of deportation under former 8 U.S.C.
§ 1253(h) rather than withholding of removal under 8 U.S.C. § 1231(b)(3).
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tion as to her asylum claim. We granted Kaur’s petitions for
withholding of deportation and relief under CAT.
On remand, the BIA took into account evidence classified
as “secret” that was presented to the IJ in the original hearings
—evidence that the BIA had set aside in its first decision. The
BIA held Cheema to be a danger to the security of the United
States and Kaur to be unworthy of a discretionary grant of
asylum.
Both Cheema and Kaur petitioned for review. Cheema also
filed a petition of habeas corpus in the Northern District of
California, challenging his detention by the Department of
Homeland Security (“DHS”) in various county jails for the
past eight years; the petition was granted but, on the govern-
ment’s motion, stayed. In February 2006, Cheema told the IJ
that it would be better “to die in a real jail in front of his peo-
ple” than to continue his confinement in this country. At his
request, deferral of removal was terminated and he was
deported on April 30, 2006.
In India, Cheema was promptly prosecuted before a Desig-
nated Court under the Terrorist and Disruptive Activities Act
(“TADA”), the Explosive Substances Act of 1884, and the
Explosive Substances Act of 1908 for offenses committed in
1992. He was acquitted of offenses under TADA and the
Explosive Substances Act of 1884, but was convicted in 2007
under the Explosive Substances Act of 1908. On appeal, the
Supreme Court of India noted that a prosecution in a Desig-
nated Court (a species of special tribunal set up under TADA)
required the authorization of the Inspector General of Police
or the Commissioner of Police. Because the required authori-
zation had not been given, the Designated Court had tried
Cheema without jurisdiction. Cheema’s conviction was set
aside in December 2007. Harpal Singh v. State of Punjab, 1
M.L.J. 875 (India 2008). No further proceedings affecting him
in India are known to this court.
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ANALYSIS
[1] Cheema. Now that Cheema has been determined to be
a danger to the security of the United States and has been
deported, the question is whether his claim for withholding of
deportation is moot. We agree with the government that we
cannot give Cheema any relief with respect to withholding
because he has already been deported and he suffers no collat-
eral consequence from the withholding decision. There is sim-
ply no live controversy. See Abdala v. INS, 488 F.3d 1061,
1064 (9th Cir. 2007) (holding that “for a habeas petition to
continue to present a live controversy after the petitioner’s
release or deportation . . . there must be some remaining ‘col-
lateral consequence’ that may be redressed by success on the
petition.”).
[2] Cheema urges us that he falls under the collateral conse-
quences exception to mootness. See Spencer v. Kemna, 523
U.S. 1, 7-8 (1998) (holding that an exception to mootness
arises where a petitioner would suffer collateral legal conse-
quences from the challenged ruling). Citing a Third Circuit
case, Chong v. INS, Cheema argues that he suffers a collateral
consequence of the BIA’s denial of his application for with-
holding: he cannot return to the United States for ten years,
a consequence sufficient to keep his case alive. See Chong v.
INS, 264 F.3d 378, 385 (3d Cir. 2001). Cheema’s reliance on
Chong, in which the only bar to reentry was the temporal ten-
year bar, is flawed. Cheema’s inadmissibility to the United
States is not a collateral consequence of the BIA’s denial of
withholding of deportation; rather, it is a collateral conse-
quence of the Board’s unchallenged determination under 8
U.S.C. § 1182(a)(3)(B)(i)(I) that Cheema is an alien who
engaged in terrorist activities. See Abdala, 488 F.3d at 1064-
65 (holding that “a petitioner subject to the collateral conse-
quence of a ten-year bar to reentry did not present a cogniza-
ble claim where the petitioner was also permanently barred
from reentry on a wholly separate ground”). With the Board’s
holding as to terrorist activities undisturbed, the alleged col-
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lateral consequence of inadmissibility does not arise from the
withholding decision. Cheema’s case is moot and should be
dismissed.
Kaur. Following our remand in 2004, the BIA found that
Kaur had not been “completely candid” in her testimony and
that she had engaged in conspiracy to commit “immigration
fraud.” The BIA found these two negative factors outweighed
the positive factors favoring the exercise of discretion to grant
asylum. We conclude that the BIA abused its discretion on
two fronts: (1) by using secret evidence without giving Kaur
sufficient notice about the parameters of that evidence to
allow her to defend against it; and (2) by holding, in the
absence of an adverse credibility finding, that Kaur was not
candid.
Kaur’s petition comes to us in an unusual posture. When
the IJ issued her decision in 1999, she granted relief to Kaur
on all of her applications—asylum, withholding of deporta-
tion, and withholding of removal under the CAT. The govern-
ment’s appeal to the BIA focused primarily on the allegations
regarding terrorist activity, although it mentioned immigration
fraud in passing. Specifically, the government’s brief to the
BIA claimed that since Kaur “admits attempting to smuggle
her daughter, Roopi, into the United States, and also admits
paying a friend $3,000 to get her nephew into the United
States,” she should be denied relief even though the IJ found
that “the hardships she has already endured and her well-
founded fear of future persecution outweigh these negative
factors.”
In its first decision, dated May 8, 2002, the BIA relied
solely on unclassified information and focused exclusively on
Kaur’s engagement “in terrorist activity since entering the
United States” and the fact that she was “a danger to the
security of the United States.” The BIA made no reference to
immigration fraud, and it accepted the IJ’s determination that
Kaur “was a credible witness.”
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On appeal to this court, we determined that Kaur had not
engaged in terrorist activity, granted her petitions for with-
holding of deportation and relief under CAT, and remanded
for the BIA to exercise its discretion in determining whether
to grant asylum to Kaur. Cheema, 383 F.3d at 859-60. The
issues of immigration fraud and candor were not before us in
the first appeal. Id.
After remand, the BIA issued an unclassified decision and
a classified attachment to that decision.2 In the unclassified
decision, the BIA stated that “as argued by the DHS, the
unclassified summary of classified evidence relating to the
female applicant states that ‘reliable confidential sources have
reported that Kaur has conspired to engage in alien smug-
gling; has attempted to obtain fraudulent documents; and has
engaged in immigration fraud by conspiring to supply false
documents for others.’ ” This statement, coupled with a refer-
ence to lack of candor, was the only basis for denial of asy-
lum, at least as articulated by the BIA.
In this second appeal to our court, in addition to challeng-
ing the DHS’s weighing of hardship factors, Kaur challenges
the proceeding as unfair because of the use of secret evidence
and argues that the BIA abused its discretion in finding that
she had not been completely candid.
2The Litigation Security Section of the Department of Justice coordi-
nated with security designees at the Ninth Circuit to make classified infor-
mation available for viewing by members of the court. See Al-Haramain
Islamic Found. v. Bush, 507 F.3d 1190, 1194 n.2 (9th Cir. 2007) (describ-
ing procedure for viewing sealed documents and classified non-public
information). Because of recent terrorism cases, courts are increasingly
familiar with the procedures associated with classified evidence. See Rob-
ert Timothy Reagan, Federal Judicial Center, Terrorism-Related Cases:
Special Case-Management Challenges (2008).
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1. Secret Evidence
[3] The regulations governing immigration proceedings
permit the use of classified information. See 8 C.F.R.
§ 1240.33(c)(4) (“The Service counsel for the government
may call witnesses and present evidence for the record,
including information classified under the applicable Execu-
tive Order. ”). In 1956, the Supreme Court sanctioned the use
of confidential or secret information in connection with dis-
cretionary decisions in immigration proceedings. Jay v. Boyd,
351 U.S. 345 (1956). The continuing viability of Jay has been
disputed, but we do not need to resolve that question here.
Here, the use of secret evidence is limited by the regulations
themselves and by the due process principle of “fundamental
fairness.” The lack of fair notice to Kaur violates both the reg-
ulations and due process.
A. Regulatory Limitations on the Use of Secret Evi-
dence
[4] The regulations state that a summary of the classified
evidence “may” be provided if it is possible to “safeguard[ ]
both the classified nature of the information and its source.”
8 C.F.R. § 1240.33(c)(4). Such a summary “should be as
detailed as possible, in order that the applicant may have an
opportunity to offer opposing evidence.” 8 C.F.R.
§ 1240.33(c)(4). Here, the DHS neither provided a meaning-
ful summary nor claimed that a more detailed summary could
not be provided because of the necessity to “safeguard[ ] both
the classified nature of the information and its source.”
[5] Under Clark v. Martinez, 543 U.S. 371, 379-81 (2005),
where a provision of immigration law applies to both non-
admitted and admitted aliens, it must be interpreted the same
way as to both classes of aliens. Where the rule is ambiguous,
it must be interpreted in such a way as to be constitutional as
to admitted aliens. Id.
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[6] The combination of permissive and mandatory language
in the regulation creates just this sort of ambiguity. Read liter-
ally, the regulation appears to say that that a summary is not
necessarily provided, yet if one is provided, it is required to
be “as detailed as possible.” To be constitutional as to admit-
ted aliens, who are entitled to due process, see Plyler v. Doe,
457 U.S. 202, 210 (1982), the regulation must be read to
require that summaries of the classified evidence be provided
so long as it is possible to “safeguard[ ] both the classified
nature of the information and its source.” 8 C.F.R.
§ 1240.33(c)(4). The summaries must be “as detailed as possi-
ble” without jeopardizing “the classified nature of the infor-
mation or its source,” such that the alien can reasonably
respond to the government’s allegations.
[7] The summary provided by DHS is, at best, conclusory
and opaque. It consists of a single sentence: “[R]eliable confi-
dential sources have reported that RAJWINDER KAUR has
conspired to engage in alien smuggling; has attempted to
obtain fraudulent documents; and has engaged in immigration
fraud by conspiring to supply false documents for others.”
This summary is simply insufficient to meet the standard in
§ 1240.33(c)(4) requiring that it be “as detailed as possible”
to allow Kaur “an opportunity to offer opposing evidence.”
Kaur cannot rebut what has not been alleged.
[8] The DHS provided no further illumination beyond the
summary. The government variously argued to the BIA that
record references relate to purported conduct by Kaur with
respect to her daughter, a nephew, and possibly others. These
references are a moving target. They do not illuminate the
conduct that was the basis of the alleged immigration fraud.
If Kaur did indeed commit immigration fraud, then she per-
sonally would be knowledgeable of the details of what
occurred, so there is little justification for failing to provide
enough detail in the summary to allow her to respond to spe-
cific allegations. Providing more detail would not jeopardize
the source of the information. At a minimum, Kaur should be
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provided with the alleged dates of and individuals involved in
the claimed fraud.
By way of comparison, the summary of classified evidence
provided here contrasts sharply with the summary provided in
Kiareldeen v. Ashcroft, where the Third Circuit held that
“[i]nformation contained in the unclassified summaries was
ultimately sufficient to assist Kiareldeen in mounting a
defense to the allegations.” 273 F.3d 542, 552 (3d Cir. 2001).
Although Kiareldeen was accused of terrorism, the govern-
ment provided him with the relevant details that would allow
him to rebut the allegations. Id. at 551 n.2. The summary
listed Kiareldeen’s alleged associates, specified his alleged
terrorist activities, listed his targeted victims, and gave loca-
tions and approximate dates for these alleged activities. Id.
Some basic detail should be provided to Kaur to allow her the
same opportunity to counter the accusation that she engaged
in alien smuggling and immigration fraud.
B. Due Process Limitations on the Use of Secret Evi-
dence
[9] In addition to the regulatory limitations, the use of
secret evidence is cabined by constitutional due process limi-
tations. Although the Federal Rules of Evidence do not apply
in administrative proceedings, we have long held that there
are limits on the admissibility of evidence and that the test for
admissibility includes “fundamental fairness.” Martin-
Mendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974) (citing
Marlow v. INS, 457 F.2d 1314 (9th Cir. 1972)). The BIA has
also recognized this principle in its own decisions: “[t]o be
admissible . . . evidence must be probative and its use funda-
mentally fair so as not to deprive respondents of due process
of law as mandated by the fifth amendment.” In re Toro, 17
I. & N. Dec. 340, 343 (B.I.A. 1980). The BIA failed to
observe this rule in its decision in Kaur’s case.
[10] When Kaur attempted entry into the United States, she
was immediately detained at the border before being paroled
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into the country pending resolution of her asylum petition.
Whatever the legal effect of her status at that time, once she
was granted CAT relief in 2004, she surely had “entered” the
United States for purposes of due process. See Zadvydas v.
Davis, 533 U.S. 678, 693 (2001) (noting distinction through-
out immigration law “between an alien who has effected an
entry into the United States and one who has never entered”
with respect to due process rights); Alvarez-Garcia v. Ash-
croft, 378 F.3d 1094, 1097-99 (9th Cir. 2004) (same). Signifi-
cantly, the BIA used secret evidence against Kaur for the first
time after she had already been granted CAT relief, at which
time she was an “admitted” alien for due process purposes.
Therefore, use of the secret evidence without giving Kaur a
proper summary of that evidence was fundamentally unfair
and violated her due process rights.
2. Lack of Candor
The BIA also abused its discretion by bootstrapping a state-
ment about Kaur’s “lack of candor” to justify its decision. The
IJ made an affirmative credibility finding, noting that “Ms.
Kaur was also a convincing witness. Her testimony was
detailed, consistent and plausible. Nothing in her demeanor
nor the content of her testimony detracted from her credible
demeanor.”
[11] Although the IJ noted that “there are certain instances
where this Court does not find the Applicants’ testimony to be
credible,” this sort of passing statement does not constitute an
adverse credibility finding. Kalubi v. Ashcroft, 364 F.3d 1134,
1137-38 (9th Cir. 2004) (“[I]t is clearly our rule that ‘when
the IJ makes implicit credibility observations in passing, . . .
this does not constitute a credibility finding.’ ” (quoting Men-
doza Manimbao v. Ashcroft, 329 F.3d 655, 658-59 (9th Cir.
2003))). This selected reference, which is not even specific to
Kaur, cannot undermine or detract from a positive credibility
finding. Indeed, this passing reference is exactly that—
passing. From this truncated reference, one would be hard
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pressed to identify any basis for finding a lack of credibility
as the IJ identified none.
[12] Because the BIA did not disturb the credibility finding,
it cannot now latch onto an isolated, unsupported reference as
a basis for its discretionary denial of asylum. In the absence
of an adverse credibility finding, “testimony must be accepted
as true.” Kalubi, 364 F.3d at 1137 (citing Kataria v. INS, 232
F.3d 1107, 1114 (9th Cir. 2000)). In the face of a positive
credibility finding, the BIA may not use an unspecified “lack
of candor” reference to buttress a discretionary denial of asy-
lum. See Kalubi, 264 F.3d at 1141-42.
PETITION GRANTED and REMANDED for further pro-
ceedings consistent with this opinion.
NOONAN, Circuit Judge, concurring:
I concur in the opinion and judgment of the court with this
reservation: The use of secret “evidence” is itself a denial of
a hearing. Jay v. Boyd, 351 U.S. 345, 361-62 (1956) (Warren,
C.J., dissenting). If no hearing, then no process. This court
and the BIA itself, as the opinion of the court states, have held
that the test for the admissibility of evidence is “fundamental
fairness.” A summary of secret evidence does not provide
opportunity for cross-examination of the witness furnishing it.
The evidence is untested. To conclude that a process is funda-
mentally fair in which cross-examination is precluded is to
say a circle is a square. The verbal assertion may be made.
The assertion does not transform the circle. See United States
ex rel. Mezei, 345 U.S. 206, 217-218, 224 (1953) (Black, J.,
joined by Douglas, J., dissenting) (comparing the power con-
ceded to the Attorney General to the arbitrary procedures pro-
vided by the criminal law of Nazi-Germany or the Soviet
Union) (Jackson, J., a former Attorney General and chief
prosecutor at Nuremberg of Nazi crimes against humanity,
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joined by Frankfurter, J., dissenting) (stating simply that pro-
cedural due process is “of the indispensable essence of liber-
ty”); see also, Jay, 351 U.S. at 365, 373, 375 (Black, J.,
dissenting) (“There is no possible way to contest the truthful-
ness of anonymous accusations. . . . In a court of law the triers
of fact could not even listen to such gossip . . . .” ) (Frank-
furter, J., dissenting) (quoting President Dwight E. Eisen-
hower as stating, “[i]n this country, if someone dislikes you,
or accuses you, he must come up in front. He cannot hide
behind the shadow. He cannot assassinate you or your charac-
ter from behind, without suffering the penalties an outraged
citizenry will impose”) (Douglas, J., dissenting) (“Fairness,
implicit in our notions of due process, requires that any ‘hear-
ing’ be full and open with an opportunity to know the charge
and the accuser, to reply to the charge, and to meet the accus-
er”).
Neither Jay nor Mezei control in this case. Jay focused on
the interpretation of a statute not at issue here. Mezei dealt
with an unadmitted alien. Nonetheless, the constitutional
insight of the dissenters is worth recalling. Audi alteram
partem — Hear the other side. The Latin maxim has some-
times been taken by English authors as expressing the core of
natural justice. The four dissenters in Jay and the four dissent-
ers in Mezei reflect the same conviction that a proceeding
where one party cannot test the information used against her
is unjust.
As the opinion of the court observes, we do not need to
resolve the question here; but I would not like to leave the
impression that a summary of secret evidence would have
provided due process.
RAWLINSON, Circuit Judge, concurring:
I concur in the conclusion that Petitioner Harpal Singh
Cheema’s petition for review has been mooted by his deporta-
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tion. I agree with Judge McKeown that we should refrain
from opining about Cheema’s fate in India or the positions
taken by the United States government.
Although I also concur that Petitioner Rajwinder Kaur’s
petition for review must be granted and this matter remanded,
I do so reluctantly. As I detailed in my dissent to the majority
opinion in our earlier decision, the unclassified evidence in
this case provided adequate support for the denial of relief to
Kaur. See Cheema v. Ashcroft, 383 F.3d 848, 860-61 (9th Cir.
2004), as amended (Rawlinson J. dissenting). Nevertheless, in
view of the Board of Immigration Appeals’ insistence on
incorporating classified information into its decision, remand
is appropriate as a matter of fundamental fairness. See Sai-
dane v. I.N.S., 129 F.3d 1063, 1065 (9th Cir. 1997); see also
Ladha v. I.N.S., 215 F.3d 889, 903-04 (9th Cir. 2000), as
amended (noting that “if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably presenting
his case, . . . we will reverse the BIA’s decision”) (citations
and internal quotation marks omitted).
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