Juan Mendoza Manimbao v. John Ashcroft, Attorney General

Opinion by Judge WARDLAW; Dissent by Judge TROTT.

ORDER AND AMENDED OPINION

ORDER

The Opinion and dissent filed August 1, 2002, slip op. 10857, and appearing at 298 F.3d 852 (9th Cir.2002) are AMENDED. The attached Amended Opinion and Dissent shall be filed. The panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

Juan Mendoza Manimbao, a native and citizen of the Philippines, petitions for review of a final order of deportation issued *657 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 credibility was the central issue in the case, the…

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 Campos-Sanchez…

329 F.3d 655 Juan MENDOZA MANIMBAO, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 00-71329. United States Court of Appeals, Ninth Circuit. Submitted February 5, 2002. * Filed August 1, 2002. Amended May 20, 2003. 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. INS No. Atf-ulc-qcc. Before: TROTT, THOMAS, and WARDLAW, Circuit Judges. 1 Opinion by Judge WARDLAW; Dissent by Judge TROTT. ORDER AND AMENDED OPINION ORDER 2 The Opinion and dissent filed August 1, 2002, slip op. 10857, and appearing at 298 F.3d 852 (9th Cir.2002) are AMENDED. The attached Amended Opinion and Dissent shall be filed. The panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc…