Marku v. Board of Immigration Appeals
Opinion of the Court
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED AND DECREED that the petition for review of the order of the Board of Immigration Appeals (“BIA”), entered on October 8, 2003, affirming the order of the immigration judge (“IJ”), entered on March 11, 2002, denying petitioners’ application for asylum and their request for withholding of removal and finding their asylum application frivolous, is hereby GRANTED, and the ease is ‘ REMANDED for further proceedings consistent with this order.
In an application dated October 27, 2000, Albanian nationals Bylbyl Marku and his wife, Heroína Kamberi-Marku, sought asylum and withholding of removal based on the fear that, if forced to return to their native country, Marku would be killed as part of a half-century old blood feud.
The IJ denied asylum and withholding, finding that Marku was not a credible witness in light of the sudden and unexplained change in the substance of his relief application. Indeed, the IJ concluded that Marku’s asylum application was frivolous and, under 8 U.S.C. § 1158(d)(6), she barred both Marku and Kamberi-Marku from ever obtaining asylum in the future. The BIA summarily affirmed pursuant to 8 C.F.R. § 1003.1(e)(5), and Marku petitions this court for review of that order. Because the BIA’s order merely noted that it agreed with each of the IJ’s conclusions, we review the decision of the IJ directly. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003); accord Yu Sheng Zhang v. United States Dep’t of Justice, 362 F.3d 155, 159 (2d Cir. 2004).
Marku challenges the IJ’s refusal to permit Mirakaj to testify in support of his application. Though the IJ received Mirakaj’s affidavit in evidence, she explained that she excluded his testimony because his political persecution allegations were so different from the blood feud claim supporting Marku’s original asylum application. In short, without hearing the witness, the IJ concluded that he would not give credible testimony.
Under the statute governing removal proceedings, an alien “shall have a reasonable opportunity ... to present evidence on the alien’s own behalf.” 8 U.S.C. § 1229a(b)(4)(B); see Augustin v. Sava, 735 F.2d 32, 36 (2d Cir. 1984). Because the rules of evidence do not govern removal proceedings, see Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996), an IJ has some latitude to receive evidence without demanding live testimony. But an IJ’s evidentiary rulings must comport with due process. See Secaida-Rosales v. INS, 331 F.3d at 306 n. 2. Furthermore, an IJ “has an affirmative obligation to help establish and develop the record.” Id. at 306; see 8 U.S.C. § 1229a(b)(l); see also Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002). Here the IJ did not provide Marku with a “reasonable opportunity” to present evidence.
Mirakaj was a witness with direct knowledge of the facts central to Marku’s claim of political persecution. Moreover, he was readily available to testify, being
Because all three of the IJ’s rulings— denying asylum, denying withholding, and finding Marku’s asylum application frivolous—depended on her assessment of the persecution claim about which Mirakaj would have testified, the error we identify precludes affirmance of any part of the BIA order. The petition for review is hereby GRANTED, and the case is REMANDED for a new asylum hearing consistent with this order.
. The couple sought withholding of removal under both 8 U.S.C. § 1231(b)(3) and Article 3 of the Convention Against Torture.
Reference
- Full Case Name
- Bylbyl MARKU, Heroina Kamberi-Marku v. The BOARD OF IMMIGRATION APPEALS
- Cited By
- 1 case
- Status
- Published