DHS Reply Brief on Denial of Adjustment of Status for  Misrepresentation. Sandhu v. Gonzales 126 Fed.Appx.  80 (C.A.3,2005).

This DHS Reply Brief on Denial of Adjustment of Status for  Misrepresentation. Sandhu v. Gonzales 126 Fed.Appx.  80 (C.A.3,2005) shows the problems that can occur in an asylum trial.

United States Court of Appeals,
Third Circuit.
Arjan SANDHU, Petitioner,
v.
John ASHCROFT, U.S. Attorney General, Respondent.

No. 03-3292.
August 1, 2004.

Reply Brief
Richard D. Steel, Esq., Steel, Rudnick & Ruben, 1608 Walnut Street, Suite 1500, Philadelphia, PA 19103, 215-546-4333.

TABLE OF CONTENTS

Argument … 1-5

TABLE OF CASES AND AUTHORITIES

Cases

Berishag v. Ashcroft, ___ U.S. ___, (3rd Cir. August 5, 2004, No. 03-1338) … 3, 4

Gao v. Ashcroft, 299 F 3rd 266 (3rd Cir. 2002) … 3

Dia v. Ashcroft, 353 F 3rd 228, 249 … 4

Abdulrahman v. Ashcroft, 330 F 3rd 587 (3rd Cir. 2003) … 5

Statutes and Regulations

§ 212(a)(6)(C)(i) of the INA, 8 USC § 1182(a)(6) … 1

In reply to Respondent’s brief the following are noted:

1. On the issue critical to the ability of Petitioner to simply have his application for adjustment of status considered, rather than pretermitted, Respondent’s brief fails to bridge the large gap between an adverse credibility determination on the one hand and being inadmissible for having “by fraud or willfully misrepresenting a material fact” in seeking the benefit of asylum on the other hand. Even assuming that the adverse credibility determination is not reversed, at worst the Petitioner was confused or inaccurate in his testimony, but this does not constitute “fraud or willful misrepresentation” within the meaning of § 212(a)(6)(C)(i) of the INA, 8 USC § 1182(a)(6). See discussion and cases cited at page 22-24 of Brief for Petitioner previously filed in this matter.
   The “fraud” referred to by Immigration Judge Ferlise was Petitioner submitting an old photograph including himself which the Judge found not to be a photograph of Petitioner even though the Judge specifically stated that:
   “It is impossible for the Court to determine whether or not the man pictured in the large photograph, and this is a photograph which, according to the date written on the back of the photograph, dates back to July 22, 1983, I cannot tell if the individual in the photograph is the same individual who appears before me because the man in the photograph has a full beard, mustache, and is wearing the turban, the Pujadi…
   Likewise, the photograph of the water’s edge with the Petitioner along with six other individuals is at too great of a distance for the Court to determine whether or not they are one in the same individuals (sic).
   The individual in the photograph is wearing the Pujadi, and again, with the full beard and a mustache. It does not appear to the Court that the individual in the picture at the water’s edge, and the photograph, the black and white photograph, the large photograph of all of the individuals seated down, may be the same individual.”
   AR 420-421
   The Judge discussed this further, asked Petitioner to bend his head and turn his head in a certain way and stated “It is very difficult for me to determine whether or not this individual is the same individual as yourself, sir.” AR 422 Nevertheless, based on this, the Immigration Judge determined that Petitioner attempted “to perpetuate a fraud upon this Court”. This alone requires a remand since this finding of “fraud” is critical to the BIA’s and IJ’s decisions.
   Similarly, he found Petitioner’s testimony that a letter from his father was personally delivered and not mailed because of fear that the mail would be checked as being “totally incredible” and that it was a “ridiculous story”. With no factual or empirical basis whatsoever the Court stated that it “… can’t imagine the country of India having the manpower, nor the volition, of intercepting and reading all mail that is leaving that country for parts unknown to the rest of the world, or specifically in the United States.” (emphasis supplied) AR 334-335 However, no such claim was made by Petitioner that all mail would be so read.
   These were two critical aspects of the Immigration Judge’s determination that Mr. Sandhu is inadmissible from the United States, not just that he did not carry his burden of proof on the asylum claim.
   With respect to inconsistencies in Petitioner’s testimony, this is discussed at pages 19-22 of Petitioner’s previously submitted brief. Suffice it to say that these matters can best be explained by confusion and misunderstandings. Surely Petitioner did not intentionally misstate the date of entry into the U.S. inconsistent with that which was previously stated and conceded.
   This Court’s most recent jurisprudence with respect to credibility determinations applies at least as much, if not more so, to the question of not just whether a Respondent in a deportation proceeding (the Petitioner here) is credible, but rather whether the person is inadmissible for reasons discussed above and in Petitioner’s prior brief. Specifically, in Berishag v. Ashcroft, ___ U.S. ___ (3rd Cir. August 5, 2004, No. 03-1338) this Court, citing Gao v. Ashcroft, 299 F 3rd 266 (3rd Cir. 2002) stated that an immigration judge’s credibility determination cannot be based on speculation and conjecture. The Immigration Judge in this case clearly engaged in speculation and conjecture including such matters as Petitioner’s religious beliefs and practices, the photograph, concerning which the Immigration Judge, as upheld by the Board, found that the Petitioner had attempted to perpetrate a fraud on the Court, the question of why matters sent from India were mailed and other matters. These are not matters that are reasonably grounded in the record. The tone of the Immigration judge’s decision and some of the adjectives used are strikingly similar to those frowned upon by the Court in Berishag.
   Petitioner is not inadmissible from the United States and his application for adjustment of status should be considered on its merits.

2. With respect to the asylum claim the foregoing discussion concerning credibility applies. Also see Petitioner’s brief, pp. 21-22. Suffice it to say that, significantly, neither the Immigration Judge nor the Board found that, if credible, Petitioner would not qualify for asylum. The exact sequence of events and exactly where Petitioner was when he was arrested, harassed, confined and beaten are not at all determinative of credibility and eligibility for asylum. Therefore, credibility is the critical determining factor and assuming that there is not substantial evidence to support the Immigration Judge’s and Board’s decision then Petitioner should be granted withholding of deportation and the matter remanded for a discretionary determination on the asylum claim. The decisions below are so infected by errors discussed above that it is not reasonable to conclude that the evidence supports the determination. See Dia v. Ashcroft, 353 F 3rd 228, 249.
3. Finally, with respect to due process, while Petitioner can agree that there is not a due process right to a grant of adjustment of status, there is a right to due process in the conduct of the hearing with respect to an application for asylum, adjustment of status, or any other matter. Abdulrahman v. Ashcroft, 330 F 3rd 587 (3rd Cir. 2003) and cases cited therein. In the instant case the Immigration Judge’s demeanor, belittling of Petitioner’s religious beliefs and practices, taking over the cross examining of Petitioner and intemperate remarks concerning Petitioner belie an impartial handling of this hearing and do not comport with the requirements of due process.

Arjan SANDHU, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.