- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 11-06-2013
- Case #: 09-70628
- Judge(s)/Court Below: District Judge Marshall for the Court; Dissent by Circuit Judge Bybee; Circuit Judge Berzon
- Full Text Opinion
In 2004, Sumaira Urooj was granted asylum because of the persecution she claimed to have experienced from being a member of the Pakistan People’s Party (“PPP”). Khalid Mahmood Turk, Urooj’s husband, was granted asylum as her derivative beneficiary. In 2005, Urooj admitted to the Department of Homeland Security (“DHS”) that she had never been persecuted because of her membership in the PPP. Afterwards, a removal hearing was held to determine whether or not Urooj’s and Turk’s asylum status would be terminated. Prior to the hearing, “DHS did not provide notice of its proposed witnesses or exhibits … as required by the Local Operating Procedures” (“LOP”) of the immigration court. At the hearing, DHS called Urooj as a witness, which her counsel objected to based “on the lack of proper notice under LOP.” While on the stand, on the advice of her counsel, Urooj refused to answer any questions. DHS offered “documents as impeachment evidence,” which the Immigration Judge (“IJ”) admitted. After the hearing, the IJ terminated Urooj’s and Turk’s asylum status; they appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed, and Urooj and Turk petitioned for review. The Ninth Circuit noted that in order to terminate asylum status, the “DHS must establish the grounds for termination by a preponderance of evidence.” The panel also cited Matter of Guevara, which held that the DHS cannot satisfy its burden “in the absence of any substantive evidence …, based solely upon the adverse inference drawn from … silence.” Since DHS presented only impeachment, and no substantive, evidence, the panel held that DHS had failed to “meet its burden of establishing the grounds for termination of asylum by preponderance of the evidence.” Thus, the IJ should have terminated the removal proceeding. PETITION FOR REVIEW GRANTED.