Emmanuel Senyo Agyeman v. Immigration & Naturalization Service

296 F.3d 871 Emmanuel Senyo AGYEMAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 99-70396. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 16, 2001. Filed July 23, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Christopher B. Durbin (argued), Kristen Kay Mitchell (argued), Eric Schnapper, Amy Edwards, Seattle, Washington (University of Washington School of Law (Students of Pro Bono Program)); Leonard J. Feldman, Heller, Ehrman, White & McAuliffe, Seattle, Washington; Daniel M. Kowalski, Ryan, Swanson & Cleveland, Seattle, WA, for the petitioner-appellant. John S. Hogan (argued) and John M. McAdams, Jr., U.S. Department of Justice, Washington, DC, for the respondent-appellee. On Petition for Review of an Order of the Board of Immigration Appeals. Before FERGUSON, KLEINFELD, and GOULD, Circuit Judges. Opinion by Judge FERGUSON; Dissent by Judge KLEINFELD. OPINION FERGUSON, Circuit Judge. 1 Emmanuel Senyo Agyeman ("Agyeman"), a native and citizen of Ghana, petitions for review of the Board of Immigration Appeals' ("BIA") decision, affirming the Immigration Judge's ("IJ") denial of his request for suspension…

Opinion by Judge FERGUSON; Dissent by Judge KLEINFELD.

OPINION

Emmanuel Senyo Agyeman (“Agye-man”), a native and citizen of Ghana, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, affirming the Immigration Judge’s (“IJ”) denial of his request for suspension of deportation pursuant to Section 244(a)(1) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1254 (a)(1) (repealed 1996) (“Section 244”), and adjustment of status pursuant to Section 245 of the INA, 8 U.S.C. § 1255 (“Section 245”). Agyeman claims that he was denied a full and fair hearing because he was not given adequate instructions as to how to proceed with his applications for relief. Specifically, he alleges, among other errors, that the denial of adjustment of status was predicated on his inability to procure his wife’s attendance at the deportation hearing to testify on his behalf. Given that his wife suffers from bipolar disorder and resides thousands of miles from the site of the proceedings, we agree. Accordingly, we grant the petition and now remand for a new hearing. In addition, we hold that the filing fees provisions of the Prison Litigation Reform Act (“PLRA”) do not…

dissenting:

I dissent.

The majority opinion provides a misleading description of the facts and creates bizarre new constitutional law. We had previously held, in a split decision, that an immigration judge must, as a matter of due process, diligently elicit relevant facts from a pro se asylum seeker facing deportation, such as asking the alien to provide narrative testimony that might explain away apparent credibility problems. 1 Yet today, we hold that when the immigration judge did just that, by telling the prospective deportee that to win his case he was going to need his wife’s testimony, the judge denied the applicant due process. The majority opinion reaches that conclusion by offering a psychiatric diagnosis and prognosis of the wife that no physician has ever given, so far as the record shows. The wife never appeared, and her medical records have never been provided. Under today’s decision, not only does an immigration judge have to act as a lawyer and psychiatrist, but if he tells the petitioner that he must present more than the minimum required by law to prevail, even if it’s true, it’s a denial of due process. There just isn’t any point to an administrative law…