The opinion of the court was delivered by: A. SIMON CHREIN
By order dated September 12, 1994 the above referenced matter was referred to the undersigned Magistrate Judge for a report and recommendation on the petitioner's writ of habeas corpus.
The petitioner is a native and citizen of Zaire who entered the United States on November 20, 1993. The petitioner concedes that she is deportable under 8 U.S.C. § 1251 (1970 & Supp. 1995). Petitioner submitted an application for asylum and/ or withholding of deportation which were denied in an oral decision by Immigration Judge Howard Cohen on February 7, 1994. In the alternative, petitioner requested that her case be remanded to enable her to present her application at a full evidentiary hearing before an impartial trier of fact. See Petition For Writ Of Habeas Corpus, dated August 21, 1994. Petitioner appealed to the Board of Immigration Appeals ("BIA") and the BIA denied her appeal on August 16, 1994. The petitioner is under a final order of exclusion.
On August 22, 1994, the petitioner filed a petition for a writ of habeas corpus. The issues raised in the petition are: (1) the decision denying petitioner's applications were not supported by substantial evidence; (2) the petitioner was denied due process by the Immigration Judge when he questioned the petitioner directly on many matters relating to her asylum application; (3) the Immigration Judge and the BIA applied an erroneous legal standard in evaluating petitioner's application for asylum; and (4) the petitioner was denied the right to present evidence on her behalf because the translation confused her during the questioning and neither she nor her attorney were permitted to explain themselves when the questioning became confusing and when her credibility was attacked.
On October 7, 1994 the petitioner filed a motion to amend the habeas corpus petition. The undersigned issued a report and recommendation which recommended granting the petitioner's motion to amend the complaint and the Honorable Edward R. Korman adopted the report and recommendation on November 17, 1994. The motion to amend added that "all references to credibility as used in the four claims for relief in the original habeas corpus petition hereby incorporate by reference, in part, an allegation that the failure to obtain a favorable credibility determination rested, in part, on errors in translation." The amendment also added a fifth claim for relief. The petitioner asserts she was not afforded a complete and accurate translation on the day of her Immigration court hearing. She alleges that the translation problem was magnified by the fact that petitioner's first language is Lingala, and thus, her limited comprehension and use of the French language did not provide an accurate record. Additionally, the translator's first language was not French either, which allegedly compounded the propensity for error. The petitioner argues that based on the errors in translation, petitioner's right to a fair hearing as required by the Fifth Amendment Due Process Clause was violated. Included in the amendments are allegations which describe the errors in translation that occurred at the petitioner's asylum hearing.
Alleged Conditions in Zaire:
Petitioner alleges that her father, Emmanuelle Badjoko, was a member of the National Assembly of the Zairian Parliament since 1984. Mr. Badjoko was also a member of an opposition party called Union for Democracy and Social Progress ("UDPS"). In 1987 the petitioner's father was told that his activities were in opposition to the government of Zaire. Since that time the petitioner's home has been the subject of harassment, scrutiny and subject to unwelcome visits by the Secret Police. In mid-September of 1991, the Army broke into the petitioner's house. They began beating the petitioner's father, took all the family's valuable possessions, attempted to rape the petitioner's mother and beat the petitioner. At this time, Mr. Badjoko was arrested and taken into custody as a political prisoner. The petitioner now believes that her father is dead.
On January 23, 1993, the petitioner alleges that the Army broke into her house again and demanded money and valuables. While searching the petitioner's house, the Army found letters and leaflets belonging to the petitioner's political organization. The petitioner was immediately arrested and taken to an Army detention center in "OAU city". The petitioner alleges that she was raped once and beaten repeatedly by soldiers during her imprisonment. On April 15, 1993 the petitioner claims she was taken to a hospital due to illness. During her hospital stay a friend of the petitioner's father, Paul Mukuya, arranged to have petitioner released by bribing a prison guard. Upon her release, the petitioner feared for her safety and stayed with a relative for six months in a neighborhood called Dijili until she left the country on October 14, 1993. The petitioner claims she left the country because a friend stated that the authorities were looking for her. The petitioner went to Congo, then Belgium and finally to the United States. The petitioner felt that she would not have been safe staying in Belgium because of the Belgian Government's close ties to Zaire's Mobutu government. The petitioner claims that if she returned to Zaire she would be killed.
In his decision the Immigration Judge stated that the testimony of petitioner ". . . was incredulous [sic], inconsistent, and contradictory . . . ." See Oral Decision Of The Immigration Judge ("IJ"), dated February 7, 1994. p. 3. annexed as Exhibit 3 to Petition for Writ of Habeas Corpus, dated August 21, 1994. He specifically pointed to certain inconsistencies and problems with the petitioner's testimony. The Immigration Judge felt that the petitioner was not believable because she did not know what "UDPS" stood for (IJ, p. 4); failed to introduce any corroborating evidence including testimony of her father's friend, Paul Mukuya, her mother, Mrs. Maeli or any members of her political organization (IJ pp. 4-8); her political organization did not have a name; she did not explain how the bribery was arranged by Paul Mukuya (IJ p.8); and petitioner offered no explanation as to why she did not stay in Congo (IJ p.8). The Immigration Judge did not believe the petitioner's story, thus, found that she did not meet the requirements for an applicant seeking political asylum or withholding of deportation. (IJ, p. 9).
The BIA agreed with the Immigration Judge and stated that his conclusions were supported by the record. See In re: Yvette Nsukami-Badjoko, In Exclusion Proceedings, Appeal ("Appeal"), dated August 16, 1994, annexed as Exhibit 4 to Petition for Habeas Corpus, dated August 21, 1994. The BIA stated that although the petitioner provided corroborative evidence concerning civil unrest in her home country, she did not introduce any supporting evidence or documentation to support the claim that she will be persecuted if she returns to Zaire. Appeal, p.5. Her application was solely supported by her own testimony, which the Immigration Judge stated lacked credibility. The Board recognized that the Immigration Judges' findings of credibility are given significant deference since the Immigration Judge is best able to observe the applicant's demeanor. Appeal, p.5, citing Turcios v. Immigration Naturalization Service, 821 F.2d 1396 (9th Cir. 1987); Canjura-Flores v. Immigration Naturalization Service, 784 F.2d 885 (9th Cir. 1985); (other citations omitted). The Board held that the Immigration Judge's decision concerning the petitioner's credibility was supported by the record. Appeal, p.5. They held that if petitioner was the President of a political organization seeking release of prisoners and her father was a political prisoner there should be documents supporting these allegations. Id. The Board stated there was no evidence in the record to support petitioner's personal experiences in Zaire or any evidence that efforts had been made to secure this information. Therefore, the Board held that the petitioner failed to establish a well-founded fear of persecution and is not eligible for asylum under § 208 of the Act. Id. at 6. They held that she also failed to satisfy the higher burden of proof for withholding of deportation under § 243(h) of the Act. Id.
This court has jurisdiction to hear the habeas corpus petition for review of the Board's decision pursuant to 8 U.S.C. § 1105a(b) of the Act. See 8 U.S.C. § 1105a(b) (1970). An alien who is presently in the United States may seek relief from deportation in two ways: asylum and withholding of deportation. See Michael v. Slattery, 852 F. Supp. 211 (S.D.N.Y. 1994), citing Immigration Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 423, 94 L. Ed. 2d 434, ...