Violeta Circu v. John Ashcroft, Attorney General

389 F.3d 938 Violeta CIRCU, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-73420. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 10, 2004. Filed November 22, 2004. Sharon M. Dulberg and Rosy H. Cho, McVey Mullery & Dulberg, San Francisco, CA, for the petitioner. Peter D. Keisler, Assistant United States Attorney General, Civil Division; Christopher C. Fuller, Senior Litigation Counsel; and Janice K. Redfern, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Acu-nsi-idu. Before O'SCANNLAIN, SILER, JR., * and HAWKINS, Circuit Judges. Opinion by Judge SILER; Dissent by Judge HAWKINS. SILER, Circuit Judge. 1 Violeta Circu, a native and citizen of Romania, petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying her claim for asylum, but permitting her to voluntarily depart the United States. Circu argues, inter alia, that the Immigration Judge ("IJ") and BIA violated her right to due process by relying on the Department of State "1999 Country Reports on Human Rights…

Opinion by Judge SILER; Dissent by Judge HAWKINS.

Violeta Circu, a native and citizen of Romania, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying her claim for asylum, but permitting her to voluntarily depart the United States. Circu argues, inter alia, that the Immigration Judge (“IJ”) and BIA violated her right to due process by relying on the Department of State “1999 Country Reports on Human Rights Practices” in Romania (“1999 Report”), a document never introduced into evidence.

Circu entered the United States on November 2, 1994, as a nonimmigrant visitor for pleasure. She was authorized to remain in the United States until November 1, 1995. On March 27, 1996, the INS charged that Circu was subject to deportation under 8 U.S.C. § 1251 (a)(1)(B) (1994) 1 for overstaying her visitor visa. She applied for asylum based on religious persecution. Romania is predominantly Romanian Orthodox; Circu and her family are Pentecostal.

Circu testified that persecution of her family dates back to when she was young. Her father was imprisoned; her family was forced to live in barracks; and her brother was taken from her family. In 1987, Circu…

dissenting.

What happened in this case would be unimaginable in any civil or criminal court in the land. The immigration equivalent of a trial is held. The record of the proceeding is complete and the fact trier retires to consider that record and render a decision. Two years later, without warning or an opportunity to rebut its contents, the judge decides the case based on the contents of a document that did not exist at the time of the hearing. The BIA then ignores a request to remand the case to rebut the evidence. To approve this result, the majority inexplicably argues that the petitioner had an opportunity to rebut the new evidence, even though it is plain she did not, and ignores Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir.2004), which requires that the BIA address remand motions of this type.

Violeta Circu credibly testified that she and her immediate family experienced religious persecution in Romania from the time of her birth until she departed Romania in 1994. Born into a family of devout Pentecostals, both her grandfather and father were imprisoned for their religious beliefs. Her grandfather’s home was confiscated, forcing Circu’s family to live in barracks in…