On Appeal from the United States Department of Justice Board of Immigration Appeals. (BIA No. A46-010-274).
Before: Ambro and Van Antwerpen, Circuit Judges, and Shadur, Senior District Judge.*fn2
The opinion of the court was delivered by: Shadur, District Judge
Submitted pursuant to Third Circuit LAR 34.1(a) on December 7, 2004
Adnan Muhanna ("Muhanna") appeals the affirmance by the Board of Immigration Appeals ("BIA") of the decision by Immigration Judge ("IJ") Annie Garcy (1) finding that Muhanna knowingly filed a frivolous asylum application and is thereby rendered permanently ineligible by 8 U.S.C. § 1158(d)(6)*fn3 to receive any benefits under United States immigration laws and (2) denying Muhanna's applications for withholding of removal and for protection under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention"). Because we conclude that the IJ's failure to adhere to the administrative regulations regarding frivolous findings resulted in a denial of due process, we grant Muhanna's petition for review of the BIA's order and remand Muhanna's case to the BIA.
Following his marriage to an American citizen in Ramallah in 1995, Muhanna entered the United States on October 17, 1996 as a conditional permanent resident.*fn4 After living in the United States for a time with his wife, Muhanna obtained a divorce from Islamic authorities in Ramallah on September 23, 1998. Because he had failed to file a joint application for the removal of the conditions on his permanent residency as required by Section 1186a(c)(1)(A) during his marriage, on December 7, 1999 Muhanna applied to the Immigration and Naturalization Service ("INS") for a waiver under Section 1186a(c)(4)(B). Under that provision an alien's failure to file a joint petition for the removal of the conditions on permanent residency may be excused if the alien shows that the marriage qualifying him for conditional status was entered into in good faith but has been terminated and if the alien was not at fault in failing to file the petition. Muhanna's application for the good faith marriage waiver was denied by the INS on September 1, 2000.
On November 27, 2000 the INS commenced removal proceedings against Muhanna, asserting the termination of his conditional status. In the course of those proceedings Muhanna admitted the factual allegations put forth by the INS and conceded that he was removable, but he asked the IJ to review the denial of his good faith marriage waiver and presented evidence that in addition to the divorce from Islamic authorities in Ramallah he had obtained a divorce from a New Jersey court. On June 15, 2001, following several master calendar hearings and continuances, Muhanna also filed applications for asylum, withholding of removal and protection under the Convention, all based on the ongoing conflict between Israeli and Palestinian forces in the Middle East. In particular he related several incidents of persecution he and his family had endured. Muhanna was warned of the consequences of filing a frivolous asylum application.
At an August 14, 2001 master calendar hearing the IJ set the case for a merits hearing and stated she would bifurcate the proceedings:
So maybe we'll have to do the [waiver application] first and then if I don't grant the waiver we can move on to the asylum application....And then we would do that, I suppose, on some other day. When the merits hearing began on June 10, 2002, however, the IJ said she was going to address both the waiver application and the asylum application. Although Muhanna's counsel responded that he was prepared to address only the waiver application and that he did not take on Palestinian asylum cases as a matter of principle, the IJ replied:
Well I don't know what your principle is, but we may end up doing this case. We'll see how it goes today.
In response to questions posed by his counsel, Muhanna testified regarding his marriage, his arrival in the United States and his divorce. Following some testimony that was somewhat inconsistent on those matters, the IJ sought to determine whether the fear of living in Ramallah that Muhanna asserted as the basis for his asylum application predated his marriage. She asked whether a stabbing to which Muhanna had referred in the asylum application (he there claimed that his Jewish employer in Ramallah had stabbed him on May 6, 1996) occurred before or after his marriage. Muhanna initially responded, "Nobody stabbed me," but he then said he had been stabbed by a man named Mohammed when he tried to break up a fight. Warning Muhanna that his answer was inconsistent with his asylum application and also warning him of the consequences of filing a frivolous asylum application, the IJ allowed Muhanna to confer with counsel. After he then did so, Muhanna showed the IJ a major scar on his arm wholly consistent with his having been stabbed, testified--consistently with his asylum application--that the stabbing had in fact been inflicted by his Jewish employer, and he explained that he had lied earlier during the hearing because he was afraid that if his employer discovered his testimony he would be harmed if he were sent back to Ramallah.
Conceding that she had "stumbled onto [the] line of inquiry" regarding the asylum application while initially addressing only the waiver application, the IJ halted the proceedings and made a finding under Section 1158(d)(6) that Muhanna's asylum application was frivolous, making him ineligible to receive any immigration benefits. That finding was expressly based entirely on the inconsistency between his hearing testimony and the original asylum application as to the stabbing incident. On that ground the IJ found Muhanna's asylum application was "a crystal-clear case of a fabricated [application] that is frivolous in every respect." She further concluded that because the information ...