The Ninth Circuit Court of Appeals held that an Immigration Judge could not use notes taken during an unrecorded bond hearing at a later removal hearing. Joseph v. Holder, No. 05-74390, slip op. (April 14, 2010) (Fletcher, Pregerson, and Graber). Judge Pregerson wrote the panel’s majority decision. Judge Graber wrote a separate concurrence.
This case involved a Haitian citizen who requested bond, then, after his bond request was denied, had a removal hearing during which he requested asylum. Joseph, No. 05-74390, slip op. at 5570. The bond and removal hearings were conducted before the same IJ. Joseph, No. 05-74390, slip op. at 5569.
Like most bond hearings, Joseph’s bond hearing was not recorded. Instead, the IJ took notes of Joseph’s testimony. The IJ denied Joseph’s bond application. Joseph, No. 05-74390, slip op. at 5572.
Approximately five months after Joseph’s bond hearing, the same IJ presided over Joseph’s removal proceeding. Joseph, No. 05-74390, slip op. at 5573. After hearing Joseph’s testimony regarding his fear of persecution, the IJ concluded that Joseph lacked credibility. Joseph, No. 05-74390, slip op. at 5573. “[T]he IJ stated that she ‘would have expected…a more thorough explanation, during the bond hearing, with respect to [Joseph’s] fear, his past persecution.’ Specifically, the IJ ‘would have expected to have been told of persecution and assaults on [Joseph’s] family’ when she asked Joseph at his bond hearing why he had left Haiti.” Joseph, No. 05-74390, slip op. at 5573.
Importantly, the IJ’s recollection of Joseph’s testimony at his bond hearing was based on her notes. Joseph, No. 05-74390, slip op. at 5573. Joseph’s attorney objected to the use of the IJ’s notes, but the IJ used them anyway and the BIA affirmed. Joseph, No. 05-74390, slip op. at 5573.
The Ninth Circuit clearly found the IJ’s use of her notes regarding the unrecorded bond hearing improper. According to the Ninth Circuit, “The main issue here is whether an IJ, who presides over the same petitioner’s bond hearing and removal hearing, may use her notes from the unrecorded bond hearing in reaching her decision in the removal hearing. We conclude that she may not.” Joseph, No. 05-74390, slip op. at 5569.
The Ninth Circuit based its conclusion first on the BIA’s recognition that “‘bond and removal are distinctly separate proceedings.’” Joseph, No. 05-74390, slip op. at 5577 (quoting Matter of R-S-H-, 23 I&N Dec. 629, 630 n.7 (BIA 2003)).
Secondly, the Ninth Circuit distinguished the BIA’s decision in Matter of Adeniji, 22 I&N Dec. 1102, 1115 (BIA 1999), which “indicates that evidence from a removal hearing, if made part of the record, can be considered in a bond hearing….” In Adeniji, the bond hearing was held after the removal hearing. Matter of Adeniji, 22 I&N Dec. at 1115. Relying on Board Member Lory Rosenberg’s concurring opinion in Matter of Adeniji, the Ninth Circuit concluded that the opposite is not true—that is, that evidence introduced during a bond hearing may not be used during a removal hearing. Joseph, No. 05-74390, slip op. at 5578. According to the Ninth Circuit, “Rosenberg explains that the ‘underlying purpose of the regulation [8 C.F.R. § 1003.19(d)] is not to limit the information an IJ may consider in redetermining bond, but to ensure that evidence presented in the far more informal bond hearing does not taint the ultimate adjudication of the charges of removability.’” Joseph, No. 05-74390, slip op. at 5578 (Matter of Adeniji, 22 I&N Dec. at 1126).
As such, it was improper for the IJ to “consider her notes from Joseph’s bond hearing to evaluate Joseph’s credibility during his removal hearing.” Joseph, No. 05-74390, slip op. at 5579.
Judge Graber’s short concurrence simply suggests that “if a transcript of the proceeding were available, neither the regulations nor common sense would prohibit the use of statements made by the petitioner or by other witnesses.” Joseph, No. 05-74390, slip op. at 5590 (Graber, J. concurring).