FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAJWINDER KAUR; HARPAL SINGH 

CHEEMA, No. 06-71048

Petitioners, Agency Nos.

v.  A072-484-174

A072-484-175 ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 21, 2008—Las Vegas, Nevada

Filed April 1, 2009

Before: John T. Noonan, M. Margaret McKeown and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Noonan;

Concurrence by Judge Rawlinson

3909
COUNSEL

Robert B. Jobe, San Francisco, California, for the petitioners.

Christopher C. Fuller, Department of Justice, Washington,

D.C., for the respondent. 

3912 KAUR v. HOLDER
OPINION

McKEOWN, Circuit Judge: 

Harpal Singh Cheema and his wife Rajwinder Kaur appeal

from the Board of Immigration Appeals’ (“BIA”) decision

denying Cheema asylum and withholding of deportation1 and

denying Kaur asylum. We dismiss Cheema’s appeal as moot.

We reverse the BIA’s denial of asylum for Kaur and remand

for further proceedings. 

Kaur found herself in a fundamentally unfair posture on her

second trip to the BIA. The Board relied on classified evidence without giving her the barest summary notice required

by the regulations, and the Board overrode the Immigration

Judge’s (“IJ”) affirmative credibility finding by sanctioning

the IJ’s passing, unspecified reference to “lack of candor.”

These errors go to the heart of the asylum ruling and require

a remand to the Board. 

BACKGROUND

The petitioners were before this court in Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004), which describes the

lengthy immigration proceedings involving this couple and

the government’s allegations that they engaged in terrorist

activity. We held that “the Board erred in determining

whether Cheema was ‘a danger to the security of the United

States,’ ” and we remanded for determination under the correct legal standard. Id. at 859. We affirmed denial of Cheema’s claim under the Convention Against Torture (“CAT”).

Because we were “compelled to conclude that there is no evidence that Kaur engaged in terrorist activity,” id., her case

was remanded for the Attorney General to exercise his discre1Because deportation proceedings began before April 1, 1997, the withholding claim is for withholding of deportation under former 8 U.S.C.

§ 1253(h) rather than withholding of removal under 8 U.S.C. § 1231(b)(3).

KAUR v. HOLDER 3913
tion as to her asylum claim. We granted Kaur’s petitions for

withholding of deportation and relief under CAT. 

On remand, the BIA took into account evidence classified

as “secret” that was presented to the IJ in the original hearings

—evidence that the BIA had set aside in its first decision. The

BIA held Cheema to be a danger to the security of the United

States and Kaur to be unworthy of a discretionary grant of

asylum. 

Both Cheema and Kaur petitioned for review. Cheema also

filed a petition of habeas corpus in the Northern District of

California, challenging his detention by the Department of

Homeland Security (“DHS”) in various county jails for the

past eight years; the petition was granted but, on the government’s motion, stayed. In February 2006, Cheema told the IJ

that it would be better “to die in a real jail in front of his people” than to continue his confinement in this country. At his

request, deferral of removal was terminated and he was

deported on April 30, 2006. 

In India, Cheema was promptly prosecuted before a Designated Court under the Terrorist and Disruptive Activities Act

(“TADA”), the Explosive Substances Act of 1884, and the

Explosive Substances Act of 1908 for offenses committed in

1992. He was acquitted of offenses under TADA and the

Explosive Substances Act of 1884, but was convicted in 2007

under the Explosive Substances Act of 1908. On appeal, the

Supreme Court of India noted that a prosecution in a Designated Court (a species of special tribunal set up under TADA)

required the authorization of the Inspector General of Police

or the Commissioner of Police. Because the required authorization had not been given, the Designated Court had tried

Cheema without jurisdiction. Cheema’s conviction was set

aside in December 2007. Harpal Singh v. State of Punjab, 1

M.L.J. 875 (India 2008). No further proceedings affecting him

in India are known to this court. 

3914 KAUR v. HOLDER
ANALYSIS

[1] Cheema. Now that Cheema has been determined to be

a danger to the security of the United States and has been

deported, the question is whether his claim for withholding of

deportation is moot. We agree with the government that we

cannot give Cheema any relief with respect to withholding

because he has already been deported and he suffers no collateral consequence from the withholding decision. There is simply no live controversy. See Abdala v. INS, 488 F.3d 1061,

1064 (9th Cir. 2007) (holding that “for a habeas petition to

continue to present a live controversy after the petitioner’s

release or deportation . . . there must be some remaining ‘collateral consequence’ that may be redressed by success on the

petition.”).

[2] Cheema urges us that he falls under the collateral consequences exception to mootness. See Spencer v. Kemna, 523

U.S. 1, 7-8 (1998) (holding that an exception to mootness

arises where a petitioner would suffer collateral legal consequences from the challenged ruling). Citing a Third Circuit

case, Chong v. INS, Cheema argues that he suffers a collateral

consequence of the BIA’s denial of his application for withholding: he cannot return to the United States for ten years,

a consequence sufficient to keep his case alive. See Chong v.

INS, 264 F.3d 378, 385 (3d Cir. 2001). Cheema’s reliance on

Chong, in which the only bar to reentry was the temporal tenyear bar, is flawed. Cheema’s inadmissibility to the United

States is not a collateral consequence of the BIA’s denial of

withholding of deportation; rather, it is a collateral consequence of the Board’s unchallenged determination under 8

U.S.C. § 1182(a)(3)(B)(i)(I) that Cheema is an alien who

engaged in terrorist activities. See Abdala, 488 F.3d at 1064-

65 (holding that “a petitioner subject to the collateral consequence of a ten-year bar to reentry did not present a cognizable claim where the petitioner was also permanently barred

from reentry on a wholly separate ground”). With the Board’s

holding as to terrorist activities undisturbed, the alleged colKAUR v. HOLDER 3915
lateral consequence of inadmissibility does not arise from the

withholding decision. Cheema’s case is moot and should be

dismissed. 

Kaur. Following our remand in 2004, the BIA found that

Kaur had not been “completely candid” in her testimony and

that she had engaged in conspiracy to commit “immigration

fraud.” The BIA found these two negative factors outweighed

the positive factors favoring the exercise of discretion to grant

asylum. We conclude that the BIA abused its discretion on

two fronts: (1) by using secret evidence without giving Kaur

sufficient notice about the parameters of that evidence to

allow her to defend against it; and (2) by holding, in the

absence of an adverse credibility finding, that Kaur was not

candid. 

Kaur’s petition comes to us in an unusual posture. When

the IJ issued her decision in 1999, she granted relief to Kaur

on all of her applications—asylum, withholding of deportation, and withholding of removal under the CAT. The government’s appeal to the BIA focused primarily on the allegations

regarding terrorist activity, although it mentioned immigration

fraud in passing. Specifically, the government’s brief to the

BIA claimed that since Kaur “admits attempting to smuggle

her daughter, Roopi, into the United States, and also admits

paying a friend $3,000 to get her nephew into the United

States,” she should be denied relief even though the IJ found

that “the hardships she has already endured and her wellfounded fear of future persecution outweigh these negative

factors.” 

In its first decision, dated May 8, 2002, the BIA relied

solely on unclassified information and focused exclusively on

Kaur’s engagement “in terrorist activity since entering the

United States” and the fact that she was “a danger to the

security of the United States.” The BIA made no reference to

immigration fraud, and it accepted the IJ’s determination that

Kaur “was a credible witness.” 

3916 KAUR v. HOLDER
On appeal to this court, we determined that Kaur had not

engaged in terrorist activity, granted her petitions for withholding of deportation and relief under CAT, and remanded

for the BIA to exercise its discretion in determining whether

to grant asylum to Kaur. Cheema, 383 F.3d at 859-60. The

issues of immigration fraud and candor were not before us in

the first appeal. Id.

After remand, the BIA issued an unclassified decision and

a classified attachment to that decision.2 In the unclassified

decision, the BIA stated that “as argued by the DHS, the

unclassified summary of classified evidence relating to the

female applicant states that ‘reliable confidential sources have

reported that Kaur has conspired to engage in alien smuggling; has attempted to obtain fraudulent documents; and has

engaged in immigration fraud by conspiring to supply false

documents for others.’ ” This statement, coupled with a reference to lack of candor, was the only basis for denial of asylum, at least as articulated by the BIA. 

In this second appeal to our court, in addition to challenging the DHS’s weighing of hardship factors, Kaur challenges

the proceeding as unfair because of the use of secret evidence

and argues that the BIA abused its discretion in finding that

she had not been completely candid. 

2The Litigation Security Section of the Department of Justice coordinated with security designees at the Ninth Circuit to make classified information available for viewing by members of the court. See Al-Haramain

Islamic Found. v. Bush, 507 F.3d 1190, 1194 n.2 (9th Cir. 2007) (describing procedure for viewing sealed documents and classified non-public

information). Because of recent terrorism cases, courts are increasingly

familiar with the procedures associated with classified evidence. See Robert Timothy Reagan, Federal Judicial Center, Terrorism-Related Cases:

Special Case-Management Challenges (2008). 

KAUR v. HOLDER 3917
1. Secret Evidence

[3] The regulations governing immigration proceedings

permit the use of classified information. See 8 C.F.R.

§ 1240.33(c)(4) (“The Service counsel for the government

may call witnesses and present evidence for the record,

including information classified under the applicable Executive Order. ”). In 1956, the Supreme Court sanctioned the use

of confidential or secret information in connection with discretionary decisions in immigration proceedings. Jay v. Boyd,

351 U.S. 345 (1956). The continuing viability of Jay has been

disputed, but we do not need to resolve that question here.

Here, the use of secret evidence is limited by the regulations

themselves and by the due process principle of “fundamental

fairness.” The lack of fair notice to Kaur violates both the regulations and due process. 

A. Regulatory Limitations on the Use of Secret Evidence

[4] The regulations state that a summary of the classified

evidence “may” be provided if it is possible to “safeguard[ ]

both the classified nature of the information and its source.”

8 C.F.R. § 1240.33(c)(4). Such a summary “should be as

detailed as possible, in order that the applicant may have an

opportunity to offer opposing evidence.” 8 C.F.R.

§ 1240.33(c)(4). Here, the DHS neither provided a meaningful summary nor claimed that a more detailed summary could

not be provided because of the necessity to “safeguard[ ] both

the classified nature of the information and its source.” 

[5] Under Clark v. Martinez, 543 U.S. 371, 379-81 (2005),

where a provision of immigration law applies to both nonadmitted and admitted aliens, it must be interpreted the same

way as to both classes of aliens. Where the rule is ambiguous,

it must be interpreted in such a way as to be constitutional as

to admitted aliens. Id.

3918 KAUR v. HOLDER
[6] The combination of permissive and mandatory language

in the regulation creates just this sort of ambiguity. Read literally, the regulation appears to say that that a summary is not

necessarily provided, yet if one is provided, it is required to

be “as detailed as possible.” To be constitutional as to admitted aliens, who are entitled to due process, see Plyler v. Doe,

457 U.S. 202, 210 (1982), the regulation must be read to

require that summaries of the classified evidence be provided

so long as it is possible to “safeguard[ ] both the classified

nature of the information and its source.” 8 C.F.R.

§ 1240.33(c)(4). The summaries must be “as detailed as possible” without jeopardizing “the classified nature of the information or its source,” such that the alien can reasonably

respond to the government’s allegations. 

[7] The summary provided by DHS is, at best, conclusory

and opaque. It consists of a single sentence: “[R]eliable confidential sources have reported that RAJWINDER KAUR has

conspired to engage in alien smuggling; has attempted to

obtain fraudulent documents; and has engaged in immigration

fraud by conspiring to supply false documents for others.”

This summary is simply insufficient to meet the standard in

§ 1240.33(c)(4) requiring that it be “as detailed as possible”

to allow Kaur “an opportunity to offer opposing evidence.”

Kaur cannot rebut what has not been alleged. 

[8] The DHS provided no further illumination beyond the

summary. The government variously argued to the BIA that

record references relate to purported conduct by Kaur with

respect to her daughter, a nephew, and possibly others. These

references are a moving target. They do not illuminate the

conduct that was the basis of the alleged immigration fraud.

If Kaur did indeed commit immigration fraud, then she personally would be knowledgeable of the details of what

occurred, so there is little justification for failing to provide

enough detail in the summary to allow her to respond to specific allegations. Providing more detail would not jeopardize

the source of the information. At a minimum, Kaur should be

KAUR v. HOLDER 3919
provided with the alleged dates of and individuals involved in

the claimed fraud. 

By way of comparison, the summary of classified evidence

provided here contrasts sharply with the summary provided in

Kiareldeen v. Ashcroft, where the Third Circuit held that

“[i]nformation contained in the unclassified summaries was

ultimately sufficient to assist Kiareldeen in mounting a

defense to the allegations.” 273 F.3d 542, 552 (3d Cir. 2001).

Although Kiareldeen was accused of terrorism, the government provided him with the relevant details that would allow

him to rebut the allegations. Id. at 551 n.2. The summary

listed Kiareldeen’s alleged associates, specified his alleged

terrorist activities, listed his targeted victims, and gave locations and approximate dates for these alleged activities. Id.

Some basic detail should be provided to Kaur to allow her the

same opportunity to counter the accusation that she engaged

in alien smuggling and immigration fraud. 

B. Due Process Limitations on the Use of Secret Evidence

[9] In addition to the regulatory limitations, the use of

secret evidence is cabined by constitutional due process limitations. Although the Federal Rules of Evidence do not apply

in administrative proceedings, we have long held that there

are limits on the admissibility of evidence and that the test for

admissibility includes “fundamental fairness.” MartinMendoza v. INS, 499 F.2d 918, 921 (9th Cir. 1974) (citing

Marlow v. INS, 457 F.2d 1314 (9th Cir. 1972)). The BIA has

also recognized this principle in its own decisions: “[t]o be

admissible . . . evidence must be probative and its use fundamentally fair so as not to deprive respondents of due process

of law as mandated by the fifth amendment.” In re Toro, 17

I. & N. Dec. 340, 343 (B.I.A. 1980). The BIA failed to

observe this rule in its decision in Kaur’s case. 

[10] When Kaur attempted entry into the United States, she

was immediately detained at the border before being paroled

3920 KAUR v. HOLDER
into the country pending resolution of her asylum petition.

Whatever the legal effect of her status at that time, once she

was granted CAT relief in 2004, she surely had “entered” the

United States for purposes of due process. See Zadvydas v.

Davis, 533 U.S. 678, 693 (2001) (noting distinction throughout immigration law “between an alien who has effected an

entry into the United States and one who has never entered”

with respect to due process rights); Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097-99 (9th Cir. 2004) (same). Significantly, the BIA used secret evidence against Kaur for the first

time after she had already been granted CAT relief, at which

time she was an “admitted” alien for due process purposes.

Therefore, use of the secret evidence without giving Kaur a

proper summary of that evidence was fundamentally unfair

and violated her due process rights. 

2. Lack of Candor

The BIA also abused its discretion by bootstrapping a statement about Kaur’s “lack of candor” to justify its decision. The

IJ made an affirmative credibility finding, noting that “Ms.

Kaur was also a convincing witness. Her testimony was

detailed, consistent and plausible. Nothing in her demeanor

nor the content of her testimony detracted from her credible

demeanor.” 

[11] Although the IJ noted that “there are certain instances

where this Court does not find the Applicants’ testimony to be

credible,” this sort of passing statement does not constitute an

adverse credibility finding. Kalubi v. Ashcroft, 364 F.3d 1134,

1137-38 (9th Cir. 2004) (“[I]t is clearly our rule that ‘when

the IJ makes implicit credibility observations in passing, . . .

this does not constitute a credibility finding.’ ” (quoting Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 658-59 (9th Cir.

2003))). This selected reference, which is not even specific to

Kaur, cannot undermine or detract from a positive credibility

finding. Indeed, this passing reference is exactly that—

passing. From this truncated reference, one would be hard

KAUR v. HOLDER 3921
pressed to identify any basis for finding a lack of credibility

as the IJ identified none. 

[12] Because the BIA did not disturb the credibility finding,

it cannot now latch onto an isolated, unsupported reference as

a basis for its discretionary denial of asylum. In the absence

of an adverse credibility finding, “testimony must be accepted

as true.” Kalubi, 364 F.3d at 1137 (citing Kataria v. INS, 232

F.3d 1107, 1114 (9th Cir. 2000)). In the face of a positive

credibility finding, the BIA may not use an unspecified “lack

of candor” reference to buttress a discretionary denial of asylum. See Kalubi, 264 F.3d at 1141-42. 

PETITION GRANTED and REMANDED for further proceedings consistent with this opinion.

NOONAN, Circuit Judge, concurring: 

I concur in the opinion and judgment of the court with this

reservation: The use of secret “evidence” is itself a denial of

a hearing. Jay v. Boyd, 351 U.S. 345, 361-62 (1956) (Warren,

C.J., dissenting). If no hearing, then no process. This court

and the BIA itself, as the opinion of the court states, have held

that the test for the admissibility of evidence is “fundamental

fairness.” A summary of secret evidence does not provide

opportunity for cross-examination of the witness furnishing it.

The evidence is untested. To conclude that a process is fundamentally fair in which cross-examination is precluded is to

say a circle is a square. The verbal assertion may be made.

The assertion does not transform the circle. See United States

ex rel. Mezei, 345 U.S. 206, 217-218, 224 (1953) (Black, J.,

joined by Douglas, J., dissenting) (comparing the power conceded to the Attorney General to the arbitrary procedures provided by the criminal law of Nazi-Germany or the Soviet

Union) (Jackson, J., a former Attorney General and chief

prosecutor at Nuremberg of Nazi crimes against humanity,

3922 KAUR v. HOLDER
joined by Frankfurter, J., dissenting) (stating simply that procedural due process is “of the indispensable essence of liberty”); see also, Jay, 351 U.S. at 365, 373, 375 (Black, J.,

dissenting) (“There is no possible way to contest the truthfulness of anonymous accusations. . . . In a court of law the triers

of fact could not even listen to such gossip . . . .” ) (Frankfurter, J., dissenting) (quoting President Dwight E. Eisenhower as stating, “[i]n this country, if someone dislikes you,

or accuses you, he must come up in front. He cannot hide

behind the shadow. He cannot assassinate you or your character from behind, without suffering the penalties an outraged

citizenry will impose”) (Douglas, J., dissenting) (“Fairness,

implicit in our notions of due process, requires that any ‘hearing’ be full and open with an opportunity to know the charge

and the accuser, to reply to the charge, and to meet the accuser”). 

Neither Jay nor Mezei control in this case. Jay focused on

the interpretation of a statute not at issue here. Mezei dealt

with an unadmitted alien. Nonetheless, the constitutional

insight of the dissenters is worth recalling. Audi alteram

partem — Hear the other side. The Latin maxim has sometimes been taken by English authors as expressing the core of

natural justice. The four dissenters in Jay and the four dissenters in Mezei reflect the same conviction that a proceeding

where one party cannot test the information used against her

is unjust. 

As the opinion of the court observes, we do not need to

resolve the question here; but I would not like to leave the

impression that a summary of secret evidence would have

provided due process.

RAWLINSON, Circuit Judge, concurring:

I concur in the conclusion that Petitioner Harpal Singh

Cheema’s petition for review has been mooted by his deportaKAUR v. HOLDER 3923
tion. I agree with Judge McKeown that we should refrain

from opining about Cheema’s fate in India or the positions

taken by the United States government. 

Although I also concur that Petitioner Rajwinder Kaur’s

petition for review must be granted and this matter remanded,

I do so reluctantly. As I detailed in my dissent to the majority

opinion in our earlier decision, the unclassified evidence in

this case provided adequate support for the denial of relief to

Kaur. See Cheema v. Ashcroft, 383 F.3d 848, 860-61 (9th Cir.

2004), as amended (Rawlinson J. dissenting). Nevertheless, in

view of the Board of Immigration Appeals’ insistence on

incorporating classified information into its decision, remand

is appropriate as a matter of fundamental fairness. See Saidane v. I.N.S., 129 F.3d 1063, 1065 (9th Cir. 1997); see also

Ladha v. I.N.S., 215 F.3d 889, 903-04 (9th Cir. 2000), as

amended (noting that “if the proceeding was so fundamentally

unfair that the alien was prevented from reasonably presenting

his case, . . . we will reverse the BIA’s decision”) (citations

and internal quotation marks omitted).

3924 KAUR v. HOLDER