Kheireddine v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2328

MOHAMMAD ADNAN KHEIREDDINE;
HASSANE ADNAN KHEIREDDINE,

Petitioners,

v.

ALBERTO GONZALES, Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya and Lynch, Circuit Judges, and
Restani,* Judge.

Daniel F. Cashman, Susanna L. Shafer, and Cashman & Lovely,
P.C. on brief for petitioners.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
and Thomas P. Colantuono, United States Attorney, on brief for
respondent.

October 25, 2005

*
Chief Judge of the United States Court of International
Trade, sitting by designation.
 LYNCH, Circuit Judge. This petition seeks review of the

decision of the Board of Immigration Appeals (BIA) affirming the

Immigration Judge's (IJ's) decision to deny applications for asylum

by two Lebanese brothers ("petitioners"). While the petitioners

attack the merits of the denial of asylum on the basis that the IJ

made serious errors of law, the most significant claim asserted is

that the BIA violated their due process rights by deciding their

appeal when a portion of the transcript of the testimony of their

expert witness was missing.

The IJ had found the petitioners' claims not to be

credible and had noted their failure to provide corroboration for

their claims. Petitioners say the missing transcript is material

because it contained the expert's opinion as to why they could not

reasonably be expected to corroborate their testimony.

If petitioners were correct that they were denied due

process by the transcription failure, we would likely not proceed

to review the merits of the BIA decision, but would rather remand

to the agency. Because the problem of missing portions of

transcripts is a recurring one, we set the parameters here for

evaluation of such claims.

I.

The evidence at the removal hearing consisted of the

testimony of petitioner Hassane Adnan Kheireddine, a brief

statement by his brother, petitioner Mohammad Adnan Kheireddine,

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that he agreed with Hassane's testimony and did not wish to correct

it, and the testimony of their expert witness, Professor Dirk

Vandewalle of Dartmouth College. The documentary evidence

consisted of the applications for asylum, an affidavit by Professor

Vanderwalle, and a State Department Country Conditions Report on

Lebanon. All of this testimony was recorded and transcribed, save

for a portion of the direct and the entire cross-examination of the

expert, as well as the closing arguments of both sides. The BIA

had before it the incomplete transcript and the remainder of the

administrative record.

As to the petitioners' testimony, we give a brief précis.

The two brothers entered this country illegally from Mexico on June

30, 2001, and flew to Boston, where they lived until they were

apprehended by the INS. They conceded removability but sought

asylum, withholding of removal, and relief under the UN Convention

Against Torture. They contended that they were former soldiers in

the South Lebanon Army (SLA)1 and, as a result, suffered past

persecution at the hands of the Lebanese government and Hezbollah.2

They claimed that when the Israeli Army withdrew from South Lebanon

in 2000, Hezbollah kidnapped them and held them for a week, during

1
The SLA was allegedly created by Israel to serve as a proxy
for the Israeli Army during its occupation of southern Lebanon.
2
There are a number of acceptable spellings of the name of
the group, including "Hizballah," "Hizbollah" and "Hezballah." We
use the most common English transliteration.

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which they were interrogated about their service with the SLA.

When Hezbollah turned them over to the Lebanese Army, the brothers

went from the frying pan into the fire. The Lebanese Army

mistreated them badly, beating and torturing them, and

interrogating them about the SLA and its relationship with the

Israeli Army. However, when asked whether either he or his brother

had needed medical care after any of the incidents of torture and

mistreatment, Hassane replied, "Of course, not. That was nothing."

After a month in Lebanese Army custody, petitioners were

tried, convicted, and sentenced to six months in jail for certain

crimes. The grounds for their conviction in Lebanon are somewhat

unclear. Hassane testified that he and his brother were charged

with either treason, for their alleged support of Israel through

his membership in the SLA, or failure to comply with the Lebanese

Army draft laws, or both.

In any case, Hassane testified that Hezbollah felt that

the brothers "got off easy" with their six-month sentences given

their participation in the SLA. After petitioners were released

from jail in January 2001, masked gunmen arrived at their home and

manhandled them and other family members. The men kidnapped the

petitioners, took them away, and threatened to kill them.

Petitioners were beaten before being released. After their

release, they returned to work at their father's hardware store.

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Their father, upset by the incidents just described, arranged for

the brothers to leave the country.

The testimony recounted that one week after the brothers

fled Lebanon, the remaining family members were interrogated as to

the whereabouts of the brothers and threatened that the brothers

would be harmed if they were found. When, at the hearing,

petitioners' counsel was asked whether this event were referred to

in the asylum applications, counsel replied, "I don't think it is,

Judge." The asylum applications do both state: "[Hezbollah] have

already threatened our father to kill us if we should return."

Counsel for the government suggested that this "minor statement"

might be construed to be a reference to the interrogation of the

family after the brothers fled. The IJ acknowledged that

explanation, but rejected it, finding that these events were in

fact not mentioned in the applications.

When the IJ asked Hassane why he had not corroborated his

testimony (for example, with a letter from his father, who

remained, living as normal, in Lebanon) Hassane replied that he did

not think he needed it. Hassane had been represented by counsel

for over a year. When the IJ inquired of counsel as to the failure

to introduce corroborative evidence, counsel replied he was not

sure anything was available, and that there might be authentication

difficulties. The IJ knew the counsel from an earlier case and

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recalled that he had been generous in allowing the attorney to

submit corroborative evidence in that case.

The IJ found the petitioners had not met their burden as

to any of their claims because they were not credible.3 The IJ

noted that they had made no effort to buttress their credibility

with corroborative evidence. The BIA affirmed and also rejected

the petitioners' due process claim based on the missing transcript.

II.

This is the second occasion for this court to deal with

a claim arising out of a failure to transcribe a portion of a

proceeding before an IJ. See Ibe v. Gonzales, 415 F.3d 142 (1st

Cir. 2005) (finding no denial of due process where the IJ

inadvertently failed to record the testimony of two witnesses).

Our review of petitioners' due process claim is de novo. See id.

at 144 (citing Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir.

1999)).

At least in the context of criminal prosecutions, due

process requires a record of the trial proceeding in order to allow

meaningful and effective appellate review. See Entsminger v. Iowa,

386 U.S. 748, 752 (1967); Specht v. Patterson, 386 U.S. 605, 610

(1967); United States v. Cashwell, 950 F.2d 699, 703 (11th Cir.

3
The IJ also expressed doubt as to whether petitioners'
mistreatment was truly "on account of" their membership in one of
the protected classes, although it is not clear whether he rested
his decision on that alternative ground as well.

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1992). While this case involves the failure of transcription in an

immigration proceeding, the respondent does not deny that the due

process principle is the same: due process demands a "reasonably

accurate, reasonably complete transcript," or an adequate

substitute, to allow for meaningful and adequate appellate review.

Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir. 1993); see also

Marincas v. Lewis, 92 F.3d 195, 203-04 (3d Cir. 1996) (holding that

"two of the most basic of due process protections" are "a hearing

before a neutral immigration judge" and a "complete record of the

proceedings").4 Absence of such a record of proceedings below

hampers the ability of an alien to mount a challenge to the

proceedings that were conducted before the IJ. In addition, the

lack of such a transcript may foreclose "effective administrative

and judicial review." Marincas, 92 F.3d at 203. In McNary v.

Haitian Refugee Center, Inc., 498 U.S. 479 (1991), for instance,

the Court considered the INS's administration of the "special

agricultural worker" amnesty program. It found that "because of

the lack of recordings or transcripts of . . . interviews and the

4
We acknowledge that generally the due process requirements
for immigration proceedings are lower than those for criminal
proceedings. See Carlson v. Landon, 342 U.S. 524, 537 (1952); V.
Capitaine, Life in Prison Without A Trial: The Indefinite Detention
of Immigrants in the United States, 79 Tex. L. Rev. 769, 788
(2001). However, this does not mean that an alien in removal
proceedings has no due process rights. See Reno v. Flores, 507
U.S. 292, 306 (1993) ("It is well established that the Fifth
Amendment entitles aliens to due process of law in deportation
proceedings."); Ishak v. Gonzales, 422 F.3d 22, 32 (1st Cir. 2005)
(same).

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inadequate opportunity for [special agricultural worker] applicants

to call witnesses or present other evidence on their behalf, the

administrative appeals unit of the INS . . . and the courts of

appeals . . . have no complete or meaningful basis upon which to

review application determinations." Id. at 496.

The Immigration and Nationality Act (INA) provides that

in removal proceedings "a complete record shall be kept of all

testimony and evidence produced at the proceeding." 8 U.S.C.

§ 1229a(b)(4)(C). For removal proceedings, the agency's own

regulations provide: "The hearing shall be recorded verbatim except

for statements made off the record with the permission of the

immigration judge." 8 C.F.R. § 1240.9. Neither the INA nor the

regulation speak of transcripts, but in practice, the BIA has

generally required transcription of testimony. See Ortiz-Salas,

992 F.2d at 106. The agency, however, appears to have minimal

formal procedures for correcting or supplementing inaccurate or

incomplete transcripts. See 8 C.F.R. § 1003.1(e)(2) (providing

that "a single [BIA] member may adjudicate . . . a case where

remand is required because of a defective or missing transcript").

In contrast, the Federal Rules of Appellate Procedure

supply a detailed provision on how missing or incomplete

transcripts are to be handled:

If the transcript of a hearing or trial is unavailable,
the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the
appellant’s recollection. The statement must be served

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 on the appellee, who may serve objections or proposed
amendments within 10 days after being served. The
statement and any objections or proposed amendments must
then be submitted to the district court for settlement
and approval. As settled and approved, the statement
must be included by the district clerk in the record on
appeal.

Fed. R. App. P. 10(c). The Federal Rules also provide a process

for correction or modification of the record, should disputes about

the accuracy or completeness of its contents arise. See Fed. R.

App. P. 10(e).5 The Federal Rules of Appellate Procedure, of

course, do not apply to proceedings before the BIA.

The problem of inaccurate or incomplete transcription of

immigration proceedings is not recent. See, e.g., McLeod v. INS,

802 F.2d 89, 94-95 (3d Cir. 1986); Sotto v. U.S. INS, 748 F.2d 832,

837-38 (3d Cir. 1984). Such persistent problems put at risk the

ability of the courts of appeals to provide meaningful and

effective appellate review. As the court in McLeod noted,

"[t]ranscript deficiencies reflect adversely upon the integrity of

the administrative process, and upon the possibility of meaningful

review during the critical appellate stage." 802 F.2d at 95. An

appropriate and detailed procedure for handling transcription

5
A great number of states have adopted analogous provisions
for handling missing or inaccurate transcripts. See, e.g., Ala. R.
App. P. 10(d), (f)-(g); Ariz. R. Civ. App. P. 11(c), (e); Cal. R.
Ct. 124(e), 127; Col. App. R. 10(c), (e); D.C. App. R. 10(c); Fla.
R. App. P. 9.200(b)(4), (f); Ind. R. App. P. 31; Mass. R. App. P.
8(c), (e); Minn. R. Civ. App. P. 110.03; Mont. R. App. P. 9(d),
(f); Nev. R. App. P. 9(d); Ohio R. App. P. 9(C), (E); R.I. Sup. Ct.
R. App. P. 10(d), (f).

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problems before a case reaches the appellate review stage might

ensure that aliens' due process rights remain intact. See Britt v.

North Carolina, 404 U.S. 226, 227 (1971); Mayer v. City of Chicago,

404 U.S. 189, 194 (1971); Ibe, 415 F.3d at 144.

There is no question that in this case the agency failed

to meet its "duty to prepare a reasonably accurate, reasonably

complete transcript." Ortiz-Salas, 992 F.2d at 106. But a mere

failure of transcription, by itself, does not rise to a due process

violation. Our analogous cases from criminal law hold that a

missing transcript, without more, does not require either reversal

or remand. See United States v. Brand, 80 F.3d 560, 563 (1st Cir.

1996) (discussing the effect of a violation of the Court Reporter

Act, 28 U.S.C. § 753(b)(1), which requires that all open court

proceedings in criminal cases "be recorded verbatim"). Rather, the

claimant must show "specific prejudice to his ability to perfect an

appeal" sufficient to rise to the level of a due process violation.

United States v. Smith, 292 F.3d 90, 97 & n.6 (1st Cir. 2002)

(quoting Brand, 80 F.3d at 563) (internal quotation mark omitted);

cf. United States v. Flecha-Maldonado, 373 F.3d 170, 178 (1st Cir.

2004).

Prejudice is an amorphous concept, and necessarily so,

given the wide variety of facts that may arise. However, a few

basic principles may be set forth. A petitioner in an immigration

case cannot show prejudice if the missing portion of the transcript

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is not material to the issue on review. See McLeod 802 F.2d at 95-

96 ; cf. Draper v. Washington, 372 U.S. 487, 495 (1963) (holding

that a criminal defendant must be given only so much of the trial

transcript as may pertain to the particular issues on appeal). Nor

may a petitioner meet his burden of showing prejudice if the

missing material can be reasonably recreated or derived from other

sources, and the petitioner has made no effort to obtain such a

substitute record. Cf. Ibe, 415 F.3d at 144; Equan v. U.S. INS,

844 F.2d 276, 278-79 (5th Cir. 1988); Bundy v. Wilson, 815 F.2d

125, 135 (1st Cir. 1987) ("A defendant's right to a transcript can

be satisfied by providing him with a written substitute that

reports the portions of the trial which underlie his appellate

contentions." (citing Draper, 372 U.S. at 495)). And prejudice to

warrant a remand cannot be shown if the transcription failure does

not make any difference to the outcome of the review. See Ibe, 415

F.3d at 144; Singh v. Ashcroft, 367 F.3d 1139, 1143-44 (9th Cir.

2004).

Other factors that might be considered in a review for

prejudice include: whether the missing testimony was duplicative of

other properly recorded evidence; whether the witness was called by

the alien or the government; whether the missing testimony was on

direct or cross-examination; the directness of the connection

between the missing testimony and the grounds of the IJ's decision;

the nature and weight of the testimony which is transcribed; and

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the resulting restrictions from the untranscribed testimony on the

alien's ability to present his case on appeal for meaningful

appellate review. This list is non-exhaustive; case-by-case

analysis will often be required.

In Ibe, for example, the IJ had failed to record the

testimony of two witnesses, but instead -- with the assistance of

both Ibe's and the government's counsel -- created a record of

their testimony using her notes and the witnesses' written

statements. 415 F.3d at 143-44. Ibe made no objection to this

procedure and offered nothing to suggest that this recreated record

was inaccurate; thus the recreated record was adequate to provide

meaningful appellate review. Id. at 144. We, like the BIA, found

that Ibe could not meet his burden of showing prejudice given that

Ibe's counsel admitted that the content of the missing testimony

would provide nothing more than what was provided in the

affidavits, which were not missing from the record. Id.

In this case, the transcript failed to record a portion

of the direct testimony and the entire cross-examination of

Professor Vandewalle, the petitioners' expert witness, although the

transcript does contain ten pages of his direct testimony.

Petitioners suggest that the missing transcript pages would have

helped demonstrate why they were unable to obtain corroborative

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evidence.6 In particular, they argue that "comments made by the

[IJ] in his decision indicate that the expert witness did testify

regarding the availability of documents from Lebanon" and so the

IJ's reliance on the lack of corroborative evidence was improper.

In fact, the only reference made by the IJ to untranscribed

testimony does not advance their case. The IJ noted that the

petitioners, after coming to the United States, voluntarily

presented themselves to the Lebanese consulate in New York to ask

for new Lebanese passports with their correct names, and the

passports were issued without any difficulty. The IJ commented

that the expert had remarked in his testimony that it was "truly

puzzling" that the petitioners obtained a second set of Lebanese

passports while in the United States. As the IJ correctly

concluded, this testimony by petitioners' own expert about

obtaining second passports undercuts their claim of persecution.

The petitioners, who were present at the hearing, have never

asserted that the IJ's recounting of that statement by the expert

was in error.

Gaps in the missing testimony can be filled, at least in

part, by the expert's affidavit, which was placed in the record and

6
The brothers raise this precise argument for the first time
before us. Before the BIA they simply argued that since the IJ
relied on statements made by the expert after transcription failed,
their ability to challenge the IJ's interpretation of the testimony
was impeded, but they did not explain why. For argument's sake, we
ignore what may well have been a waiver of the argument.

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was before the BIA and this court to review. In the affidavit, the

expert accepted the petitioners' story as credible based on their

declarations. While it does not explicitly discuss the topic of

the petitioners' failure to produce corroborating information, the

affidavit does paint a picture of Lebanon as "a kind of selective

anarchy" and stresses the "lawlessness of the territory in which

they live." Presumably Professor Vandewalle's testimony before the

IJ was consistent with the information he provided in his

affidavit: that the failure to obtain documents was explained by

lawlessness in Lebanon. The IJ heard that explanation and

implicitly rejected it. Thus, as to this reason at least, there

was no material omission. Furthermore, while this might be an

explanation for the failure to corroborate with government

documents, it certainly does not explain the failure to obtain

affidavits from family members regarding essential details of the

petitioners' story.

Based on our review of the entire record, we conclude

that petitioners have not established the transcription failure

created "specific prejudice to [their] ability to perfect an

appeal" sufficient to justify reversal of or remand to the agency.

Smith, 292 F.3d at 97 (internal quotation marks and citation

omitted). The petitioners have the burden to explain to us why the

missing portion of the transcript is material to their claim here,

and beyond vague references to testimony that seems to cut against

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their position, they have failed to do so. In addition, the

brothers were present at the hearing, and there is no reason to

think that Professor Vandewalle was not still available to

reconstruct his testimony.

Furthermore, even if somehow the missing transcript gave

a reason for the utter failure to produce corroboration, there is

no suggestion that the outcome would have been any different had

the BIA had the full transcript before it. The IJ rested his

decision on an adverse credibility determination, bluntly

concluding "I don't believe them." The IJ had ample reason to

question the petitioners' credibility based on their own testimony.

The IJ noted that there were material inconsistencies

between the brothers' testimony and their applications for asylum.

For example, the brothers' asylum applications did not contain the

testimony given by Hassane that forces came by looking for them and

terrorized the family after the brothers had left Lebanon. Also,

the IJ found that "notwithstanding the claims of horrific

mistreatment," the petitioners never claimed to need "any kind of

medical care." The IJ found that if the petitioners truly had

undergone significant mistreatment, "one would have to question why

neither of them sought any kind of medical assistance." Further,

the IJ noted that although petitioners claimed that they would be

subject to persecution if they returned to Lebanon, they also

explained that the Lebanese government considered them to have paid

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their dues; that is, that "the government was no longer interested

in them." Petitioners make no claim that anything in the expert's

report or testimony resolved those inconsistencies.

III.

Having rejected the due process claim, the merits of the

petition may be easily dealt with. Under the deferential

"substantial evidence" standard of review, we uphold the IJ's

credibility determination "unless any reasonable adjudicator would

be compelled to conclude to the contrary." 8 U.S.C.

§ 1252(b)(4)(B); see also Rodriguez-Ramirez v. Ashcroft, 398 F.3d

120, 123 (1st Cir. 2005). The petitioners argue that the IJ erred

in application of Matter of S-M-J-, 21 I. & N. Dec. 722 (BIA 1997),

which set forth the standard for when corroborating evidence was

required to support an applicant's claim. In that case, the BIA

held that "[w]here the record contains general country condition

information, and an applicant's claim relies primarily on personal

experiences not reasonably subject to verification, corroborating

documentary evidence of the asylum applicant's particular

experience is not required." Id. at 725 (emphasis added).

Petitioners argue that in this case the request for corroborating

evidence was not reasonable.

The petitioners' claim misfires. The IJ did not require

corroborating evidence; he noted that corroborating evidence could

only help the petitioners, that some corroborating evidence was

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likely available, and that petitioners had failed to produce any.

Nothing in Matter of S-M-J- precluded the IJ from deeming already

not credible petitioners even less credible when they failed to

back up their claims with information reasonably available. See

Matter of Y-B-, 21 I. & N. Dec. 1136, 1139 (BIA 1998) ("[T]he

weaker an alien's testimony, the greater the need for corroborative

evidence.").

There is no need to address the remaining issues raised

by the petitioners; their case disappears with the rejection of the

due process argument and the conclusion that the adverse

credibility determination was amply supported by the record.

The decision of the BIA is affirmed; the petition for

review is denied.

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