The documentary evidence before INS establishes that none of the
telephonic testimony of one witness for petitioner, Orlando
Gomez-Echemendia, was recorded, in clear violation of statute and
regulation. 8 U.S.C. § 1229a(b)(4)(C), dealing with aliens' rights in
removal proceedings, requires that "a complete record shall be kept of
all testimony and evidence produced at the proceeding."
8 C.F.R. § 240.9 provides: "The hearing before the immigration
judge, including the testimony, exhibits, applications, proffers, and
requests, the immigration judge's decision, and all written orders,
motions, appeals, briefs, and other papers filed in the proceedings shall
constitute the record in the case. The hearing shall be recorded verbatim
except for statements made off the record with the permission of the
immigration judge. In his or her discretion the immigration judge may
exclude from the record any arguments made in connection with motions,
applications, requests, or objections, but in such event the person
affected may submit a brief." The regulation's allowance of
off-the-record "statements" or "arguments" cannot reasonably be construed
to authorize failure to record the sworn testimony of a witness. In the
absence of a transcript of any of the witness s statements, the court
cannot accept unsworn and unsupported characterizations of the missing
"discussions" as not being "pertinent", an assertion that is not made in
BIA's August 18, 2000 order, which states only that the IJ had advised
that he spoke to Mr. Gomez-Echemendia, a telephonic witness, off the
record and no transcript existed. If an appeal is taken, INS, not the
petitioner, is required to forward to BIA the "record of proceeding,"
8 C.F.R. § 3.5, and BIA is required to consider all of the relevant
evidence. Okoroha v. INS, 715 F.2d 380, 383-84 (8th Cir. 1983) (remanding
deportation proceeding because omission of exhibits from the
administrative appeal record precluded fair administrative or judicial
review). These requirements were not satisfied here.
The violation of law and regulation requires a remand to INS for
further proceedings even if prejudice had not been shown. See Waldron v.
INS, 17 F.3d 511, 518 (2d Cir.), cert. denied, 513 U.S. 1014, 115 S.Ct.
572, 130 L.Ed.2d 489 (1994) ("when a regulation is promulgated to protect
a fundamental right derived from the Constitution or a federal statute,
and the INS fails to adhere to it, the challenged deportation proceeding
is invalid and a remand to the agency is required"), cited with approval
in Guan Shan Liao v. U.S. Dep't of Justice, 293 F.3d 61, 66 (2d Cir.
2002). However, even if a showing of prejudice is needed, the requirement
is satisfied here because petitioner was deprived of his right to a full
and fair determination of his appeal of the IJ's decision on a complete
Especially where the district court has no jurisdiction to review the
facts or the correctness of BIA's determination, it is imperative that
BIA render its decision upon a full record. It is not for this court to
speculate whether the missing testimony would or should have yielded a
different result; that determination is properly made by BIA on the basis
of a complete and accurate record. Although the actual testimony is
unknown, it suffices that the alleged testimony of Gomez-Echemendia as
proffered by petitioner was relevant and material; it corroborated his
claims that he had engaged in anti-Castro activity, that he had suffered
beatings and other reprisals as a result, and that he had reason to fear
his treatment if he returned to Cuba. Cf. Perez-Lastor v. INS,
208 F.3d 773, 780 (9th Cir. 2000) (alien suffered prejudice where
inadequate translation of his testimony raised substantial doubt that he
had received a full opportunity to present evidence and to have his
credibility evaluated fairly); Ortiz-Salas v. INS, 992 F.2d 105, 106-07
(7th Cir. 1993) (denying relief based on inaccurate and incomplete
hearing transcript where no showing that the omitted testimony was
material or helpful to petitioner). Because of the procedural
irregularity, BIA did not have the benefit of the Gomez-Echemendia
testimony in deciding that petitioner had failed to sustain his burden of
proof because his testimony was "vague and lacked detail".
The Board should determine whether there should be a new hearing or
whether it is feasible to accurately reconstruct the record. If
reconstruction of the omitted testimony is not possible, a new hearing
must be held. See Okoroha 715 F.2d at 384 (if on remand INS cannot locate
exhibits, petitioner must be afforded the "opportunity to submit new
documentation and again appear before an" IJ).
The petition for a writ of habeas corpus is granted, the final order of
deportation is vacated, and the matter is remanded to the Board of
Immigration Appeals for further proceedings. If BIA determines that it is
feasible to accurately reconstruct the record to include the omitted
testimony of Orlando Gomez-Echemendia, BIA should conduct a new review of
petitioner's Torture Convention claim on the complete record after it has
been supplemented. Otherwise, a new hearing should be granted on
petitioner's claim. Petitioner is not subject to deportation unless and
until a new final order of deportation is entered.
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