Juan Mendoza Manimbao v. John Ashcroft, Attorney General

298 F.3d 852 Juan MENDOZA MANIMBAO, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 00-71329. No. INS-A70-184-349. United States Court of Appeals, Ninth Circuit. Submitted February 5, 2002. * Filed August 1, 2002. Joseph L. Feldun, Korenberg, Abramowitz & Feldun, Encino, CA, for the petitioner. Cathy Appling, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before TROTT, THOMAS, and WARDLAW, Circuit Judges. Opinion by Judge WARDLAW; Dissent by Judge TROTT. OPINION WARDLAW, Circuit Judge. 1 Juan Mendoza Manimbao, a native and citizen of the Philippines, petitions for review of a final order of deportation issued by the Board of Immigration Appeals ("BIA"), denying his applications for asylum and withholding of deportation under the Immigration and Nationality Act ("INA") sections 208 and 243(h), 8 U.S.C. §§ 1158 , 1253(h) (1994), and reinstating a period of voluntary departure. The Immigration Judge ("IJ") failed to make an express credibility finding supported by specific, cogent reasons. Concluding that…

Opinion by Judge WARDLAW; Dissent by Judge TROTT.

OPINION

Juan Mendoza Manimbao, a native and citizen of the Philippines, petitions for review of a final order of deportation issued by the Board of Immigration Appeals (“BIA”), denying his applications for asylum and withholding of deportation under the Immigration and Nationality Act (“INA”) sections 208 and 243(h), 8 U.S.C. *854 §§ 1158 , 1253(h) (1994), and reinstating a period of voluntary departure. The Immigration Judge (“IJ”) failed to make an express credibility finding supported by specific, cogent reasons. Concluding that credibility was the central issue in the case, the BIA substituted itself for the IJ and made its own — adverse—credibility determination. Because, in this case, credibility was the dispositive issue, the BIA erred in (1) failing to remand to the IJ for an express finding, consistent with the requirements of its regulations and the law of our circuit; and (2) requiring Man-imbao to provide corroborative evidence to meet his burden, when, if his testimony were deemed credible, he would have had no obligation to do so.

I. Background

Manimbao entered the United States on June 19, 1992, as a nonimmigrant…

dissenting:

The majority holds that the BIA violated Manimbao’s Fifth Amendment due process rights by rendering an adverse credibility determination after the IJ failed to make an explicit adverse credibility determination in the first instance. I respectfully disagree, and thus, I dissent.

“When the BIA decides an asylum case ‘based on an independent, adverse credibility determination, contrary to that reached by the IJ, it must give the petitioner an opportunity to explain any alleged inconsistencies that it raises for the first time.’ ” Abovian v. INS, 219 F.3d 972, 978 (9th Cir.) amended by 228 F.3d 1127 and 234 F.3d 492 (2000) (quoting Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999)). In probing for a due process violation, the crucial inquiry is whether the petitioner had “notice that [his] credibility was questioned or that [he] should provide the BIA with explanations for alleged discrepancies • in [his] testimony.” Id. at 978 (internal quotation and citations omitted). If provided with such notice, the petitioner must explain all inconsistencies in his testimony, not merely those specified by the IJ. Pal v. INS, 204 F.3d 935, 939 (9th Cir.2000).

In…