United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-1477

___________

Naing Tun, *

*

Petitioner, *

* Petition for Review of an Order of

v. * the Board of Immigration Appeals.

*

Alberto Gonzales, Attorney General *

of the United States, *

*

Respondent. *

___________

Submitted: October 20, 2006

Filed: May 21, 2007

___________

Before MELLOY, BENTON, and SHEPHERD, Circuit Judges

___________

MELLOY, Circuit Judge.

Naing Tun (“Petitioner”) conceded removability and sought asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and

voluntary departure. An Immigration Judge (“IJ”) denied all forms of relief, and the

Board of Immigration Appeals (“Board”) affirmed. Petitioner now seeks review of

the Board’s order.

The Board determined that asylum relief was unavailable because Petitioner

failed to file his asylum application within one year after entering the United States.

We are without jurisdiction to review that determination. See Yakovenko v.
1

Although we do have jurisdiction to review constitutional-based challenges to

timeliness determinations, see, e.g., Munoz-Yepez v. Gonzales, 465 F.3d 347, 351

(8th Cir. 2006) (finding jurisdiction under 8 U.S.C. § 1252(a)(2)(D), to review

questions of law and constitutional claims related to asylum-related timeliness

determinations), the due process violation in the present case is unrelated to the

Board’s timeliness determination.

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Gonzales, 477 F.3d 631, 635 (8th Cir. 2007) (holding that a finding of untimeliness

is a factual finding shielded from our review by 8 U.S.C. § 1158(a)(3)). The denial

of relief on the withholding of removal and CAT claims was based on an adverse

credibility determination. As to these claims, we reverse and remand for further

proceedings. We hold that the improper and prejudicial exclusion of evidence coupled

with unreliable translation denied Petitioner a fair hearing in violation of his due

process rights under the Fifth Amendment of the United States Constitution.1

 We

need not address the parties’ arguments as to whether we have jurisdiction to review

the Board’s denial of voluntary departure. Our remand on the other issues moots the

Board’s ruling on voluntary departure and requires a reopening of the record.

I. Background

A. General Background

Petitioner is a native and citizen of Burma and a member of Burma’s minority

Arakan ethnic group. He entered the United States in February 1997 at New York,

New York, as a non-immigrant crewman in transit with authorization to remain in the

United States until March 6, 1997. He overstayed this authorization, was found

removable, and sought relief alleging torture, past persecution, and a fear of future

persecution. The IJ handling his case excluded a physician’s affidavit and testimony

that would have explained how scars and markings on Petitioner’s body, as well as

Petitioner’s current medical and psychological symptoms, were consistent with claims

of torture at the hands of Burma’s ruling military regime. The IJ also excluded an
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affidavit from a country conditions expert. The expert’s affidavit spoke directly to a

critical, contested issue in the case, namely, the degree of surveillance exercised by

the military regime over mail and communications and the difficulty of obtaining and

sending documents from Burma. Also, at Petitioner’s hearing before the IJ, a native

speaker of Burmese interrupted the proceedings to inform the IJ that the official

translator was not correctly translating the questions and answers. Consistent with

these claims of translation problems, Petitioner repeatedly had trouble understanding

the questions asked by the IJ and attorneys and frequently provided answers that did

not make sense in light of the questions that were asked. After the hearing, Petitioner

submitted an affidavit from the native speaker detailing alleged translation errors, but

the IJ declined to accept the affidavit, found no evidence of translation errors, found

Petitioner non-credible, and denied relief. The Board affirmed in a four page opinion.

Because this case involves a challenge to an adverse credibility determination,

alleged translation errors, excluded evidence, and an alleged deprivation of due

process, it is necessary to review in detail the applications, affidavits, testimony, and

other evidence admitted into and excluded from the proceedings below. 

B. Application, Amended Application, and Accompanying Affidavits and

Documents

Petitioner filed an initial pro se application, an amended application with a

supporting affidavit, and supporting documents. The documents included a 1996

letter from Han Nyunt, a man who claimed that he protested in Burma with Petitioner

in December 1996. Nyunt also claimed that military police arrested him, showed him

pictures of Petitioner, and questioned him about Petitioner. Other documents

included: State Department Human Rights Reports on Burma for 1997, 1998, and

2003; a document Petitioner identified as a Burmese warrant for his arrest dated

October 1998; a March 2002 membership card for a pro-democracy opposition group

in Burma, the National League for Democracy; and a July 2002 document stating that

Petitioner was a member of a group called the Arakan League for Democracy.
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Petitioner also submitted a written report from Dr. Sharon Frye, a physician Petitioner

offered as an expert in physical and psychological trauma. Finally, Petitioner offered

a written report regarding country conditions in Burma prepared by Professor David

Steinberg, the Director of Asian Studies at Georgetown University’s School of

Foreign Service.

In his initial, pro se application, Petitioner made the following claims. His

younger brother was killed in a 1988 student demonstration. Also in 1988, Petitioner

“[a]ctively took part in the mass demonstrations as a member of [the] Local Citizen’s

Committee of my township of South Okkalapa.” Petitioner joined a group called the

National League for Democracy after a 1988 coup that brought the present military

regime to power in Burma. In 1990, before an election, he was arrested with other

workers from the Local Citizen’s Committee and incarcerated for nearly three years

at Insein Prison, where he “faced persecution, interrogations, threats and [was]

forcibly put into solitary confinement.” He took part in demonstrations in late 1996,

shortly before he left the country in February 1997. 

In his amended application, prepared with the assistance of counsel, Petitioner

stated, “In 1990 I was arrested, beaten, and interrogated because of my political

activities. I was incarcerated for over three years during which time I was tortured,

interrogated, and forced to do hard labor. I was released only after signing a

document stating that I would abstain from politics.” He also claimed that a warrant

was issued for his arrest in 1998, and security agents still visited his family and asked

about him. He feared “indefinite incarceration, beatings and torture” because of his

race, political activities and memberships in the National League for Democracy, the

Arakan League for Democracy (which he joined after arriving in the United States)

and the Local Citizen’s Committee. He did not apply for relief immediately upon

arrival in the United States because he “wanted to see if the situation in Burma

improved.” He applied for relief in June 1999. This was shortly after the INS issued
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its notice to appear and shortly after the date he alleges that he learned of the 1998

arrest warrant. 

In his affidavit accompanying the amended application, Petitioner provided

additional details regarding alleged abuse and torture that followed his 1990 arrest.

Petitioner alleged he was arrested by military agents and detained for several months

at Tauck Kyant military headquarters near Rangoon. There, he was asked about his

political activities. When he refused to respond, his persecutors hanged him naked

from the ceiling, beat him with bamboo batons, electrically shocked his back, chest,

genitals, and shoulders, sodomized him with a rough wooden pole, beat him with

rubber batons, and kicked and punched him. He was denied medical attention and still

bears physical scars and suffers headaches and memory loss as a result of the torture.

He then faced trial without counsel and without any appeal rights. He was convicted

of political agitation and imprisoned at a prison facility called Insein where, again, he

was beaten. He was later moved to a work camp where he was subjected to forced

labor. He was required to break rocks, mix feces for fertilizer, and plant trees, all

while wearing shackles on his legs and a collar around his waist.

C. Expert Opinions

As the first order of business at an April 29, 2004 hearing before the IJ, the

government objected to the use of Professor Steinberg’s report on conditions in

Burma. The government did not suggest that Professor Steinberg was in any manner

unqualified to offer insight regarding current conditions in Burma nor did it suggest

that any evidence existed to indicate bias, lack of credibility, or lack of qualifications

on the part of Professor Steinberg. Rather, the government argued that Petitioner

should not be allowed to use Professor Steinberg as an expert because Professor

Steinberg was not made available for cross-examination. Counsel for Petitioner noted

that the immigration court in St. Louis had recognized Professor Steinberg as an

expert on at least four prior occasions and that his credentials showed on their face
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that he was well-qualified to address country conditions in Burma. Professor

Steinberg was a former employee of the U.S. Department of State, had published more

than twelve books and forty articles about Burma and East Asia, and had taught

numerous classes on Burma and East Asia. Notwithstanding these qualifications, the

IJ concluded, “since the Government doesn’t have the opportunity to cross-examine

him, that document will not be given any weight.”

As the next order of business, counsel for Petitioner sought to enter Dr. Frye’s

written report and have Dr. Frye testify as an expert in the fields of physical and

psychological trauma. In her written report, Dr. Frye explained the background

information Petitioner had given to her regarding his time in Burma. That information

was consistent with Petitioner’s applications, affidavits, and testimony (as detailed

below). She then described his current physical and psychological condition, which

she had determined by personally examining Petitioner in early February prior to the

hearing. She stated:

[T]here is spinal tenderness at the level of lumbar region . . . [and] a 2 cm

curved scar on the left shoulder. There are three 1 cm scars at the level

of the left shoulder. There is a 1 cm round scar at the level of the

thoracic spine. There are two 3 mm hyperpigmented areas over the

spine. There is a 3 cm linear curved scar on the medial aspect of the left

knee. There is a 1 cm scar on the left pretibial surface. There is a 1.5 cm

scar on the medial aspect of the left lower extremity. There is a 1 cm

round scar on the left lateral ankle. There is circumferential

hyperpigmentation around the ankles bilaterally. On the left buttock

there is a 5 cm round hyperpigmented brown area.

She concluded:

Based on my examination it is my assessment that Mr. Tun suffers from

symptoms consistent with post-traumatic stress disorder resulting from

his imprisonment and torture. Post-traumatic disorder is a set of

characteristic symptoms that develop following a psychologically
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distressing event such as torture which is considered to be outside the

range of normal experiences. These symptoms in Mr. Tun’s case include

but are not limited to difficulty sleeping, nightmares, a sense of being

lost in life, and increasing irritability. In addition, he develops periods

of anger, and nausea and dizziness based on cues from his experiences.

He has residual pain in his back which is consistent with his description

of wearing the metal collar around his waist and also be[ing] beat[en]

on many occasions with batons. His scars are consistent with the use of

a stun gun-like apparatus, multiple beatings and wearing of collars

around the ankles. Although he remembers the association of some

scars with the specific types of torture he cannot remember all. Mr. Tun

suffers from memory loss due to the torture, malnutrition, sleep

deprivation, and harsh living conditions.

(Emphasis added).

When Petitioner sought to have Dr. Frye testify, the IJ expressed concern that

Petitioner’s government-provided interpreter had to make a six o’clock flight. The IJ

apparently wanted Petitioner to testify first so that the interpreter could be released in

time to make the flight. The parties agreed to this order for questioning the witnesses.

Dr. Frye was about to leave the proceedings and wait outside when the IJ, apparently

anticipating the dismissal of Dr. Frye, decided it would be more efficient to address

her qualifications as an expert before allowing Petitioner to testify. The IJ permitted

voir dire during which Dr. Frye explained her qualifications. 

According to Dr. Frye’s testimony during voir dire and the statement of

qualifications in her written report, she had worked as an emergency room trauma

nurse from approximately 1975 into the early 1980s. She then went to medical school

in West Virginia and was licensed by the State of Missouri to practice medicine in

1985. She has been a practicing physician since that time. She now works as an

Associate Professor of Internal Medicine at the Saint Louis University Health

Sciences Center in the Division of Infectious Diseases and Immunology. She is fully

trained and board certified in internal medicine and infectious diseases. In that
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capacity, she has seen and diagnosed many patients who have been physically or

psychologically traumatized. She sees many victims of trauma who have developed

infections secondary to their trauma and these victims often have psychological as

well as physical symptoms.

In addition, Dr. Frye volunteers with Physicians for Human Rights Asylum

Network. This group’s main purpose is the documentation and exposure of instances

of human rights abuses. Her participation includes travel to war-torn countries to

offer medical assistance and document conditions. She traveled to Zaire, Bosnia,

Tajikistan, Kosovo, Afghanistan, Ukraine, Belize, Rwanda, Uganda, and India, but not

Burma. Dr. Frye’s volunteer work for the group also involves providing assistance

to asylum applicants in the form of medical evaluations and assistance in the

preparation of affidavits. Her role on the domestic side involves interviewing and

examining applicants to make sure their symptoms are consistent with their claims and

identify any false allegations of torture. She acted in a pro bono capacity for

Petitioner.

The IJ believed Dr. Frye was well-qualified in the area of internal medicine but

expressed concern at Dr. Frye’s qualifications to offer an opinion regarding physical

and psychological trauma. The IJ claimed to have read Dr. Frye’s report but appeared

to ignore Dr. Frye’s extensive experience with victims of physical trauma, the fact that

Petitioner offered Dr. Frye as an expert in the area of physical trauma (not just

psychological trauma) and the fact that Dr. Frye directly connected Petitioner’s actual

physical scars and symptoms to his claims of torture and abuse.

The IJ concluded that Dr. Frye was not qualified to serve as an expert because

she had not been to Burma, her primary area of practice was internal medicine rather

than trauma or psychiatry, and her organization, the Physicians for Human Rights

Asylum Network, “seems to be more of an advocacy group than anything to do with

treatment.”
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D. Testimony

After dismissing Dr. Frye, the IJ and the attorneys questioned Petitioner through

the interpreter. Petitioner relayed the following information in his testimony. His

mother had been active in politics when he was young but was arrested and

interrogated and, as result, ceased her involvement in politics. She had not been

harassed by the military since that time, other than general surveillance and

questioning regarding Petitioner. In 1988, after security forces shot and killed

Petitioner’s brother, Petitioner and his family were not able to obtain the brother’s

body nor were they able to obtain a death certificate; the military rulers of Burma

would not issue death certificates for persons who died in demonstrations. Petitioner

testified that he was motivated by, and became active in politics following, the killing

of his brother. Petitioner organized group demonstrations and eventually joined the

National League for Democracy. He became a township organizer for the National

League for Democracy in the township of South Okkalapa. 

Petitioner elaborated upon his description of his arrest and incarceration. He

was arrested by security police in 1990 and tortured at military intelligence

headquarters at Tauck Kyant. His persecutors were ethnic Burmans. He was beaten,

raped, locked in a small, dark, wet cell, and deprived of medical attention and

adequate food. He was tried without process, sentenced, and taken to Insein prison.

There, again, he was beaten by officers, but a doctor provided some medical aid.

When authorities discovered the doctor was being kind to political prisoners, the

doctor was sent away. Petitioner was then moved to a work camp at Htoogyi. There

he wore chains and iron rings around his back and feet, he could not walk freely, and

he was forced to break rocks and plant trees. He testified that, at the work camp, he

was made to do more than other prisoners and he believed this was because of his

race. At the work camp, the only physical abuse other than the forced labor and

shackles was kicking to make the prisoners work more.
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In all, Petitioner was incarcerated for over three years. He spent about three

months at the work camp and was allowed no visitors while at military headquarters

or at the work camp. His family was allowed to visit him once a month at Insein

prison, but on some visits, they were not allowed to see him because of his wounds.

He was released from the work camp in December 1993 after he signed a form

agreeing not to participate in political activities. 

After he was released, he went to a medical clinic to be treated for injuries from

beatings and from the chains he was forced to wear. He then was unable to find

employment because people knew of his past political activities and his imprisonment,

and they did not want to be involved with him. He was on a sort of probation and had

to sign in periodically at a police office. He described being watched by government

agents and being questioned at his home. 

Petitioner resumed political activities in 1995 after the funeral of Burmese

political figure and former prime minister U Nu. Fearing retribution, he fled to Shan

state, a different political subdivision in Burma, near the Thai border. In Shan state,

Petitioner met, was befriended by, and obtained work from the owner of a vineyard.

Petitioner returned to Rangoon in October and December 1996 to see his wife and

parents and to participate in political demonstrations. While in Rangoon during this

time, Petitioner claims that he stayed in a home owned by his employer from Shan

state. After Petitioner participated in a demonstration that police broke up, he fled

again to Shan state. A friend of Petitioner, Saw Naing, was arrested at the

demonstration.

In February 1997, Petitioner was able to leave Burma on a plane after his

employer obtained travel documents for him. Petitioner came to the United States.

Communications with persons in Burma were difficult because government agents

conducted surveillance of his family’s home in Burma, listened to telephone

communications, and read private mail. He could talk to his family on a limited basis,
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however, because they spoke Arakanese, and the government agents spoke only

Burmese. Petitioner’s family was questioned by military intelligence officers. The

military government sent an arrest warrant to Petitioner’s family’s home in October

1998. Petitioner received a copy of the arrest warrant in June 1999. His father sent

the warrant to the United States using the Burmese postal system. Petitioner’s father

died in 2003. A person from Burma who came to the United States brought Petitioner

a copy of his father’s obituary. Petitioner spoke to the family of a friend, Hen Nyunt,

who was arrested at a 1996 demonstration. The family told Petitioner that intelligence

officers had questioned Nyunt about Petitioner. 

Later, Petitioner received a letter from Nyunt stating that Petitioner should not

return and that the military government had asked about Petitioner and shown Nyunt

a picture of Petitioner participating in a demonstration. The letter arrived via DHL.

On cross-examination, there was a good deal of questioning regarding surveillance,

the danger to Petitioner’s family in using the postal system, the use of DHL rather

than use of the postal system, and the difficulty, impossibility, or danger inherent in

trying to obtain government documents. Ultimately, Petitioner stated that his family

used the postal system at their own risk when they sent him the warrant, that

surveillance varied from being very tight at times to being less tight at other times, and

that DHL was generally more secure and less likely to be screened by the military

intelligence. Petitioner explained that his family was not able to obtain government

documents because he had been involved in politics, so he didn’t have a death

certificate regarding his father or prison records for his own incarceration. Petitioner

explained that the warrant was delivered to his family’s home and that it was not a

document that his family had to seek from the government. Petitioner also stated that

he did not seek an affidavit or letter from his employer in Shan state because he felt

the employer had already done enough to help and Petitioner did not want to bother

him further. Finally, Petitioner stated that he did not have a death certificate regarding

his father because he had not asked the person who came to the United States and

brought the obituary to bring a death certificate.
2

A few examples of such exchanges are as follows:

Q. Didn’t you just say they didn’t mistreat you?

A. Yes, I did.

Q. Okay. And, now you’re saying that they took you out and

tortured you?

A. Yes.

Q. Do you know what mistreatment means?

A. Yes, I do.

Q. Okay.

. . . 

Q. Okay. Did you go back to Rangoon, after you arrived in Shan

state?

A. Yes, I did.

Q. When was that?

A. Around ‘96.

Q. What month?

A. ‘96, around October and December.

Q. Okay. And, why did you go back to Rangoon?

A. It was because I missed my mother and father, I missed my wife,

I missed my children, and, at that same time, at that time, the

students were demonstrating.

PETITIONER’S COUNSEL TO JUDGE.

Your Honor, I think, I object to the interpretation. He didn’t –

UNIDENTIFIED PERSON TO JUDGE.

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During the hearing, there were at least a dozen instances where Petitioner

indicated that he did not understand the questions posed by the translator and at least

a dozen other instances where Petitioner’s responses, provided to the court by the

translator, were confusing or not directly responsive to the questions originally asked

in English. The IJ and the Board discussed examples of these confusing exchanges

and relied upon the IJ’s view of these confusing exchanges in finding Petitioner to be

not credible. We do not discuss each exchange, but rather, focus on those exchanges

identified by the Board and the IJ.2
He didn’t say the children.

PETITIONER’S COUNSEL TO JUDGE.

He didn’t say children. He has no children.

INTERPRETER TO JUDGE.

What do mean by –

JUDGE TO PETITIONER’S COUNSEL.

I’m sorry. Just a minute.

INTERPRETER TO JUDGE.

I’m sorry.

JUDGE TO PETITIONER’S COUNSEL.

This is the official interpreter. He heard what he said. He went

back because he missed his wife, he missed his parents, and he missed

his children. I don’t believe the correct translation –

PETITIONER’S COUNSEL TO JUDGE.

I don’t believe he said children, Your Honor. Someone else here

speaks Burmese and –

JUDGE TO PETITIONER’S COUNSEL.

I’m asking him.

PETITIONER’S COUNSEL TO JUDGE.

– is indicating he just –

JUDGE TO UNIDENTIFIED PERSON.

What did he say?

UNIDENTIFIED PERSON TO JUDGE.

He said the parent, and his wife.

JUDGE TO INTERPRETER.

Interpreter, is that what you heard?

INTERPRETER TO JUDGE.

Well, I, (indiscernible) the respondent said that he didn’t mention

the children.

JUDGE TO INTERPRETER.

So, only missed his wife and parents?

INTERPRETER TO JUDGE.

Parents. And there was also a demonstration, students’

demonstration at that time.

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E. Motion to Supplement the Record and Motion for a New Hearing

After the April 29 hearing, Petitioner filed a motion to supplement the record

with an affidavit from the native Burmese speaker who attended the hearing and

attempted to speak during the hearing. The government resisted the motion and

Petitioner responded, asking for new hearing. In the affidavit, the native speaker

indicated specific instances of incorrect translation and stated that, in his assessment,

approximately twenty percent of the translation contained errors. Examples

referenced by the native speaker included, inter alia, the above-referenced claim by

the translator that Petitioner had made reference to his children, when Petitioner, in

fact made no reference to children and, in fact has no children; the translator’s misuse

and interexchange of general terms like “mistreated” and “beaten” with more specific

terms like “raped” and “tortured like before” leading to confusion regarding when,

how often, and at which location Petitioner experienced torture during his

incarceration; the interpretation of questions about when Petitioner met his wife as

questions regarding when Petitioner married his wife; and questions about his

hometown rather than questions about his place of birth. According to Petitioner,

these and other passages in the transcript led to confusion and delay in Petitioner’s

answers and confusing, contradictory answers that contributed to the IJ’s overall

impression regarding Petitioner’s credibility.

F. IJ Decision

The IJ restated her conclusions regarding Dr. Frye in her written decision:

“Even if Dr. Frye could have established that she was an expert, her testimony would

have been given less weight because of her activities with refugees. Ultimately the

Court found that Dr. Frye was not an expert in the area offered and she was excused.”

The IJ then addressed Petitioner’s testimony at length. In concluding that Petitioner

was not credible, the IJ stated, “[t]he [Petitioner’s] sworn testimony was inconsistent

with his asylum application and it was not sufficiently corroborated by his supporting
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documents.” The IJ’s analysis of Petitioner’s credibility focused on three main areas

of concern: (1) alleged inconsistency between Petitioner’s affidavit and his testimony

concerning the conditions of his confinement at Insein prison; (2) the issue of

obtaining corroborating documents via regular post or DHL, the issue of the

surveillance of his family in Burma, and the danger to his family in sending materials

to Petitioner; and (3) the differences between his original and amended asylum

applications and the lack of detail in the original application. The IJ also cited other,

miscellaneous inconsistencies.

Regarding his treatment as a prisoner, the IJ stated that Petitioner’s affidavit

was “for the most part” consistent with his testimony regarding his treatment while

in custody at military headquarters in Tauck Kyant, but Petitioner “failed to testify to

certain details he mentioned in his affidavit,” such as being required to drink his own

urine when water was not provided. The IJ then stated that Petitioner’s testimony was

inconsistent with his affidavit regarding the conditions during his imprisonment at

Insein Prison. The IJ characterized Petitioner’s affidavit as claiming that he was

“tortured once a month . . . beaten with batons and punched . . . tortured, then put in

solitary, then tortured, and returned to solitary.” The IJ then described Petitioner’s

testimony regarding Insein Prison as follows: “[H]e first said he was not mistreated

at Insein, but then said he was tortured. He said he was tortured only twice, and after

being put in solitary he was returned to his regular cell. He said he was hit with rifles

and military boots[,] claimed he was not mistreated at Insein but then said he was

tortured.” 

Regarding Petitioner’s ability to obtain documents, the IJ noted that Petitioner

repeatedly stated that he could not obtain documents from the government, but the IJ

found it inconsistent that Petitioner had been able to obtain the arrest warrant. The IJ

also said it was inconsistent that Petitioner was able to obtain a passport and leave the

country in light of the arrest warrant and it was inconsistent that Petitioner’s father

was able to mail the arrest warrant when Petitioner stated it was not possible for his
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family and friends to use the mail to send affidavits because they were under

surveillance. Also, the IJ stated there was an inadequate explanation as to why his

family couldn’t use DHL.

Regarding the addition of detail between the original and amended asylum

applications, the IJ noted the omission from the initial application of “details

regarding his arrest, detainment, rape, or torture” and the omission of any reference

to having been a political organizer or leader, living in Shan state or receiving the

assistance from the employer in Shan state. The IJ recognized that Petitioner had

assistance of counsel in preparation of the amended application.

Finally, regarding other inconsistencies, the IJ noted that Petitioner’s mother

remains in Burma unharmed even though she used to be active in politics, petitioner

stated in his affidavit that he spent several days in a medical clinic after release from

prison but testified that he only spent one day at a medical clinic, and Petitioner failed

to submit his National League for Democracy membership card until 2004 even

though it was purportedly issued in 2003.

The IJ then addressed the fact that Petitioner had moved to reopen the record

or hold a new hearing and had submitted an affidavit from the native Burmese speaker

who was present at the hearing. Notwithstanding claims in the native speaker’s

affidavit regarding language proficiencies, the IJ found “no evidence proving [the

native speaker’s] abilities in either Burmese or English,” and the IJ refused to permit

Petitioner to supplement the record. The IJ made no comment as to Petitioner’s

confusing and non-responsive answers or instances where Petitioner was unable to

understand the questions posed by the interpreter, and the IJ apparently did not

consider these exchanges to be evidence of poor translation.

Based on the adverse credibility ruling, the IJ denied relief.
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G. Board Decision

The Board reviewed the IJ’s opinion, finding no clear error in the IJ’s

credibility determination. The Board addressed a few of the claimed translation

errors, and stated, “The [IJ] only relied on two of the cited errors in making her

adverse credibility determination . . . the testimony that [Petitioner] was not mistreated

but was tortured at Insein prison and . . . the amount of times he was beaten at Insein

prison.” The Board chose six instances of alleged inconsistencies between

Petitioner’s affidavit and his testimony and described how the Board believed the

record supported the IJ’s finding of inconsistencies. We address these inconsistencies

in our analysis below. 

The Board also made fine distinctions in addressing what it perceived to be

inconsistencies between the original and amended applications. For example,

Petitioner described his brother’s death as the catalyst for his own involvement in

political activities, and listed May 13, 1988 as the date of death in one instance. In

another instance, he gave May 18, 1988 as the date of his brother’s death. The Board

seized upon this and other inconsistencies as material inconsistencies proving

Petitioner not credible. Ultimately, the Board affirmed the credibility determination

and dismissed the appeal.

II. Discussion

A. Standard of Review

An applicant for withholding of removal or relief under CAT is entitled to a fair

hearing under the Due Process Clause of the Fifth Amendment of the United States

Constitution. Reno v. Flores, 507 U.S. 292, 306 (1993); Al Khouri v. Ashcroft, 362

F.3d 461, 464 (8th Cir. 2004) (“The Fifth Amendment’s due process clause mandates

that removal hearings be fundamentally fair.”). For a removal hearing to be fair, the
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arbiter presiding over the hearing must be neutral and the immigrant must be given the

opportunity to fairly present evidence, offer arguments, and develop the record. 8

U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.10(a)(4); Al Khouri, 362 F.3d at 465

(“[C]urtailing . . . testimony and circumscribing [a petitioner’s] ability to elaborate on

the details of his claim by instructing him only to answer the questions asked and then

concluding that . . . limited responses undermined . . . his credibility violates notions

of fundamental fairness.”); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“The

Due Process Clause entitles a person to an impartial and disinterested tribunal in both

civil and criminal cases.” ). A neutral arbiter is, at a minimum, one who has not predecided the case and who is not predisposed to disregard a witness’s testimony based

on that witness’s participation in an advocacy group. See, e.g., Lopez-Umanzor v.

Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005) (finding a due process violation where

an IJ appeared to have pre-decided a case and refused “to hear relevant testimony

because of a prejudgment about the witness’s ‘credibility [and] the probative value of

[the witness’s] testimony’”) (quoting Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir.

2004)).

These procedural rights would be meaningless if an immigrant could not

understand the proceedings, so the BIA recognizes that due process rights necessarily

encompass the right to competent translation. Matter of Tomas, 19 I&N Dec. 464, 465

(BIA 1987). Also, although the “traditional rules of evidence do not apply in

immigration proceedings,” Prawira v. Gonzales, 405 F.3d 661, 663 (8th Cir. 2005),

due process concerns dictate that immigration judges do not enjoy complete discretion

in the admission and exclusion of evidence. Id.; see also Maroon v. INS, 364 F.2d

982, 986 (8th Cir. 1966) (“[T]he exacting requirements of judicial admissibility are

not ordinarily applicable to administrative proceedings, except to the extent that due

process is involved.”) (internal citation omitted). To comport with the requirements

of due process, evidence must be “‘probative and its admission . . . fundamentally

fair,’” Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004) (quoting Espinoza v.
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INS, 45 F.3d 308, 310 (9th Cir. 1995)), and the immigration court cannot unfairly

prevent a petitioner from presenting probative evidence and making a record.

 

To be entitled to relief based on an alleged due process violation, a petitioner

under the immigration laws must show prejudice. In this context, prejudice means a

showing that the outcome of the proceeding may well have been different had there

not been any procedural irregularities. United States v. Torres-Sanchez, 68 F.3d 227,

230 (8th Cir. 1995) (“Actual prejudice exists where defects in the deportation

proceedings may well have resulted in a deportation that would not otherwise have

occurred.”) (emphasis added, internal quotations omitted). This standard does not

require petitioners to show by a preponderance that, but for the procedural infirmities,

the result of the proceedings would have been different. Al Khouri, 362 F.3d at 466

(“Prejudice in this context, however, does not require ‘but for’ causation.”). Rather,

petitioners must demonstrate an error that “‘potentially . . . affects the outcome,’” id.

(quoting Agyeman v. INS, 296 F.3d 871, 884 (9th Cir. 2002)), or “‘had the potential

for affecting’ the outcome.” Al Khouri, 362 F.3d at 466 (quoting Ambati v. Reno,

233 F.3d 1054, 1061 (7th Cir. 2000)). 

Here, given the strength of Dr. Frye’s report and testimony as well as the

importance of her medical opinion to the corroboration of Petitioner’s claims of

physical abuse and torture, we hold that the exclusion of her testimony “may well

have” affected the outcome, especially when coupled with the IJ’s exclusion of other

evidence and reliance upon infirm translation. Torres-Sanchez, 68 F.3d at 230. These

combined errors include not only the exclusion of Dr. Frye’s clearly admissible and

highly probative testimony and report, but the exclusion of Professor Steinberg’s

corroborating report, the IJ’s and the Board’s reliance on unreliable translation, and

the application of a far-too-exacting standard in assessing consistency between the

application, the amended application, and the testimony. In particular, the IJ and the

Board focused primarily on Petitioner’s failure to maintain consistency in the details

and level of detail used to describe his abuse and the locations and times of that abuse
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during his incarceration at three different facilities. The IJ and the Board also focused

on Petitioner’s description of difficulties with the mail and obtaining documents.

These issues relate directly to the excluded evidence and to some of the most

confusing aspects of the infirm translations. We discuss the errors below and detail

the prejudicial impact associated with each.

B. Exclusion of Experts

1. Dr. Frye

As an initial matter, we note that our review of the transcript left us with the

firm impression that the IJ’s desire to help the translator make a six o’clock flight

weighed substantially in the decision to exclude Dr. Frye. This is an obviously

improper factor to consider when assessing the admissibility of an expert. The IJ did

not, however, expressly rely on this fact, and our analysis need not focus on this

apparent basis for rejecting Dr. Frye. Rather, we look to Dr. Frye’s qualifications and

the reasons for exclusion expressly stated by the IJ.

Among the express reasons given by the IJ for the exclusion of Dr. Frye were

(1) her lack of travel to Burma, (2) her membership and work for the human rights

organization, (3) her focus on internal medicine and infectious diseases rather than

trauma, and (4) her lack of specialization in psychiatry or psychology. Whether she

had ever traveled to Burma has absolutely no bearing on her ability as a physician to

recognize physical or psychological trauma or to comment regarding the consistency

between Petitioner’s actual, present physical symptoms and his claims of abuse and

torture. Further, we find it more than a little troubling that an immigration judge who

is ostensibly working as a neutral arbiter in a fact-finding and decisionmaking

capacity would use a physician’s participation in an advocacy and aid organization as

a basis to presume a conflict and bias (as opposed to considering such participation

as affecting the weight of the evidence). This is especially troubling where, as here,
3

The government does not contest assertions contained in the administrative

record that immigration courts in over twenty-five states have accepted affidavits from

physicians working for Physicians for Human Rights and that guidelines prepared by

Physicians for Human Rights were included in the conference materials for the

Immigration Judges Annual Conference in 2001. In fact, the administrative record

contains materials from that conference demonstrating that Physicians for Human

Rights presented to the immigration judges a program entitled “Evaluating the

Physical and Psychological Scars of Torture.”

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the immigration service itself has used the very same organization to give

presentations to immigration judges during training and continuing education

seminars regarding torture.3

 In our view, the IJ’s assessment of Dr. Frye contained

commentary regarding participation with the human rights organization that suggests

the IJ may not have acted as a neutral arbiter. Cf. Bensilmane v. Gonzales, 430 F.3d

828, 829 (7th Cir. 2005) (collecting cases involving suspect rulings by immigration

judges); Wang v. Attorney General, 423 F.3d 260, 269 (3rd Cir. 2005) (“The tone, the

tenor, the disparagement, and the sarcasm of the IJ seem more appropriate to a court

television show than a federal court proceeding.”).

Further, Dr. Frye was clearly qualified and offered critical corroborating

testimony based on a recent medical examination of the Petitioner. There does not

appear to have been any objection to her methodology, only to her qualifications, and

even if the Rules of Evidence were to apply in this context, it is not necessary that a

physician be a specialist or publish in a particular area to provide assistance in the

evaluation of claims of abuse or torture. See Fed. R. Evid. 702 (requiring only that

an expert be qualified “by knowledge, skill, experience, training, or education”).

Given Dr. Frye’s medical education and work experience as a physician and nurse in

the United States and abroad, she was qualified to comment on physical trauma,

physical scars, the consistency between Petitioner’s claims and his physical scars and

symptoms, and, based on her experience with trauma victims, psychological effects

of trauma. See, e.g., Hanaj v. Gonzales, 446 F.3d 694, 696, 700 (7th Cir. 2006)

(ordering a remand and suggesting reassignment to a different IJ where the initial IJ
-22-

ignored aspects of a petitioner’s evidence, including an affidavit from a board certified

family physician “who documented scars on [the petitioner’s] heel, head, shoulder,

back, palms and leg consistent with [the petitioner’s] allegations of . . . beatings”).

Regarding the possibility of prejudice under the standard of Torres-Sanchez, we

believe that the exclusion of Dr. Frye’s report and testimony may have affected the

outcome of the proceedings. The contents of her report and anticipated testimony

were strong evidence of torture and strongly corroborated Petitioner’s claims. The

markings around Petitioner’s waist and ankles were consistent with his claims of

having been shackled in the work camp, and his numerous small scars and skin

discolorations were consistent with his claims of having been tortured with electrical

shocks. The IJ and the Board, however, chose to wholly disbelieve Petitioner by

focusing only on perceived conflicts between the applications, affidavit, and testimony

regarding the details of when and where the abuse occurred. It is clear the IJ wholly

disbelieved Petitioner because the IJ stated, “[t]he horrific facts Tun describes, if true,

surely amount to past persecution.”

Notwithstanding this conclusion, the IJ and the Board completely ignored the

most valuable corroborating evidence of his torture—his scars—and relied specifically

on infirm aspects of the translation to discount his claims. Petitioner’s claim for relief,

however, depended not on the precise details of when, how often, and in which place

of confinement he was tortured, but whether he was tortured and whether it is likely

to happen again upon his return to Burma. The inconsistencies relied upon by the IJ

and the Board pale in comparison to the strong physical evidence corroborating his

claims of torture, forced labor, and bondage. Given this fact, we have little trouble

concluding that the improper exclusion of Dr. Frye’s affidavit and testimony strongly

suggest prejudice under the due process standard.
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2. Professor Steinberg

Professor Steinberg was qualified as shown not only by his resume, but also by

his body of published works. According to his affidavit, prepared in January 2004,

he traveled frequently to Burma, including a recent visit in August 2003 and a planned

trip in February 2004. The IJ excluded his affidavit solely because he was not present

to be cross examined. The presence of the author of a report and availability of the

author for cross-examination, however, are not absolute requirements in immigration

proceedings. See, e.g., Yang v. Gonzales, 427 F.3d 1117, 1121-22 (8th Cir. 2005)

(finding error and remanding where an IJ and the BIA failed to accord weight to an

affidavit from a non-testifying, facially qualified country condition expert). As

described above, fairness rather than the rules of evidence govern the admissibility of

evidence, and the use of a report from a qualified witness, in the absence of any

specific objections, is generally fair. The weight IJ’s routinely ascribe to reports by

absentee authors is shown by reliance on such materials, including the State

Department’s country reports. Perinpanathan v. INS, 310 F.3d 594, 599 n.1 (8th Cir.

2002) (discussing the value of Department of State country condition reports in the

assessment of claimed fears of persecution). Importantly, the government and the IJ

in the present case did not suggest that there was any basis upon which to impugn

Professor Steinberg’s qualifications or to suspect bias. Had the government suggested

any basis for its alleged need to cross-examine Professor Steinberg, this issue might

merit greater attention. As it stands, however, the IJ’s election to exclude the report

of a facially unobjectionable expert without any explanation as to why crossexamination was needed is unfair and unsupportable. See, e.g., Niam v. Ashcroft, 354

F.3d 652, 660 (7th Cir. 2004) (holding in an asylum case that the exclusion of a

relevant expert witness’s affidavit was arbitrary and required reversal where “nothing

in [the expert’s affidavit] or in her curriculum vitae showed that she was unqualified

to give expert evidence”).
4

Professor Steinberg wrote:

Based upon my travels to the country and my contacts there, I have no

doubt that nearly all international correspondence is screened,

international communications are tapped, and when I am there, I am

often followed. My telephone conversations are intercepted, sometimes

intelligence staff arrives at my appointments before I do. My taxis are

often followed. Indeed, the United States Department of State reports

that the Burmese security officials tightly screen all correspondence in

and out of Burma, be it of a telephonic or written nature.

Given the foregoing, I believe that family members of political dissidents

and former political prisoners who attempt to obtain prison records

would be, at a minimum, detained and interrogated. The military

government keeps a close watch over all aspects of the society, and fear

is pervasive. Similarly, anyone who attempts to send out of Burma any

correspondence of a political nature, such as police or prison records,

political party documentation, or affidavits describing the reasons why

such documents cannot be safely obtained in Burma, would place

themselves in jeopardy and, if apprehended, would be at a minimum

subject to interrogation by agents of the Burmese government.

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Regarding prejudice, we note that Professor Steinberg’s report provided strong

corroboration for Petitioner’s claims the military regime in Burma conducted

surveillance of individuals, mail, and telephone conversations. These claims were

also corroborated by statements in the country reports, but Professor Steinberg’s

report added detail and explained with greater specificity the invasive and pervasive

nature of the regime’s surveillance practices.4

 The exclusion of his report added to the

prejudice against Petitioner because one of the primary bases for finding Petitioner not

credible was Petitioner’s perceived waffling regarding his family’s and his friends’

ability or inability to use the Burmese postal system and DHL shipping. Petitioner

said that use of the mail was too dangerous and that government agents would read

the mail, but he also said DHL packages were less likely to be screened and his family

could use the mail system if they paid bribes to the appropriate persons. While it is
5

We do not intend our opinion to stand for the proposition that the exclusion of

an arguably redundant, corroborating report could, standing alone, give rise to a due

process violation. Regarding Professor Steinberg’s report, we hold only that

exclusion was improper and added to the overall prejudice caused by the combined

errors in this case.

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not unreasonable for a finder of fact to view these statements as inconsistent and rely

on such inconsistencies, in part, to find a petitioner not credible, our review for

prejudice under the due process argument is not so deferential to the administrative

findings. Al Khouri, 362 F.2d at 466. We do not ask whether a reasonable fact finder

could agree with the IJ, rather, we ask whether the procedural errors may have

affected the outcome. Id. The details added by Professor Steinberg demonstrate that

communication is possible but risky and support Petitioner’s claims regarding a

limited ability to obtain documents and letters due to danger inherent in sending such

materials from Burma. This additional corroboration was important to Petitioner’s

claims.5

C. Interpretation Errors / Standards Regarding Consistency

We are also troubled by the lack of consideration given by the IJ and the Board

to the issue of alleged translation errors in this case. Common sense informs us that

evidence of improper translation may include direct evidence of mistranslated words,

evidence that a witness is unable to understand a translator, or unresponsive answers

from a witness. See, e.g., Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000)

(listing forms of evidence useful in identifying translation errors). Here all three

indicia of erroneous translation were present. Of course, isolated instances of

translation errors are not generally a basis for relief if “[t]he transcript of [a

petitioner’s] testimony as a whole [is] understandable and coherent, and thus [the

petitioner is] able to convey her story to the IJ.” Meas v. Ashcroft, 363 F.3d 729, 730

(8th Cir. 2004). It remains necessary, however, to ensure testimony is coherent before

dismissing allegations of infirm translation. It is also necessary to gauge the
-26-

possibility of prejudice in light of any other errors that may have occurred and in

relation to whether the IJ or the Board relied upon erroneous portions of the

translation in reaching their decisions. Here, we believe the evidence of erroneous

translation, reliance by the Board and IJ on allegedly erroneous portions of the

translation, and focus by the Board and IJ on minutia in the effort to find

inconsistencies added to the overall prejudice against Petitioner.

Looking specifically at some of the issues noted by the IJ and the Board, the IJ

stated that Petitioner’s testimony was largely consistent with his affidavit as to torture

at Tauck Kyant, but that Petitioner failed to recite in his testimony every detail

regarding abuse and conditions of confinement as set forth in his affidavit. This

standard, applied by the IJ, was too exacting. It is simply not necessary for a

petitioner to precisely recite the contents of an affidavit verbatim in his testimony.

See Bellido v. Ashcroft, 367 F.3d 840, 843-44 (8th Cir. 2004) (stating that the

omission of details does not necessarily undermine the entirety of a petitioner’s

testimony). 

Further, the IJ noted that Petitioner testified that he was not mistreated at Insein

prison but shortly thereafter corrected himself to say that he was tortured at Insein

prison. Also, Petitioner said in his affidavit he was raped at Tauck Kyant, the military

headquarters, but in his testimony, he said he was raped at Insein before he corrected

himself to say he was raped at Tauck Kyant. We find sufficient confusion

surrounding these statements to make any reliance on this alleged inconsistency

unfair. This was one of the most confusing aspects of the hearing and was obviously

riddled with translation problems. While the IJ and the Board both recognized that

there was some confusion in the translation as to the issue of times and locations of

torture, their opinions treated the confusion as having been wholly clarified. For

example, the interpreter appeared to have interchanged the words “raped,”

“mistreated,” and “tortured like before.” The Board determined that these errors had

no impact because the interpreter relayed an answer provided by Petitioner as “No, I
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was not mistreated while at Insein.” This, however, ignores the fact that the flawed

interpretation works in two directions—if the interpreter was using different words

interchangeably when speaking to Petitioner, we can have no confidence that the

answers relayed by the interpreter to the IJ and the attorneys accurately reflected what

the Petitioner answered. 

Also, the IJ said it was inconsistent for Petitioner to state he could not obtain

documents from the Burmese government, but to have a copy of the arrest warrant to

present at his hearing. Petitioner clearly explained, however, that the arrest warrant

was delivered to his family—no family member had to seek this document from the

Burmese government. The IJ also stated that it was inconsistent that Petitioner could

obtain a passport given the fact that there was a warrant for his arrest. This statement

merely demonstrates that the IJ ignored or missed the fact that the warrant was not

issued until 1998, after Petitioner had already left the country. 

The Board discussed numerous other instances of alleged inconsistencies. First,

in the affidavit, Petitioner said he was beaten at Insein with batons, but in the

testimony, he said he was hit with a stick, rifle butts, and military boots. We believe

it is self-evident that the terms baton and stick are sufficiently similar to permit the use

these two terms interchangeably without giving rise to an adverse credibility

determination. Also, the omission of a reference to rifle butts and boots is

inconsequential in light of the overall evidence in this case. 

Also in the affidavit, Petitioner described the severe injury of not being able to

walk, sit down, eat solid food, or go to the bathroom and of suffering severe

abdominal pain after torture at Tauck Kyant, but in his testimony, he only made

general reference to injury in his back ,shoulders, eyes, and head. The Board seized

on this apparent discrepancy to support the finding of non-credibility. The Board

failed to recognize, however, that the specific references were to injuries immediately

after the beatings and sodomy. The general references to aches and pains, on the other
-28-

hand, were entirely consistent with Petitioner’s claim regarding his lingering health

effects and his present state of health as described by Dr. Frye.

Petitioner correctly notes that the numerous instances of difficulties in

understanding the interpreter and Petitioner’s arguably unresponsive answers lent an

air of evasiveness and confusion to the proceedings. It is not possible to

mathematically weigh the impact this impression or tone may have had on the IJ, and

we do not mean to suggest that we believe Petitioner’s testimony was without

inconsistencies or that we believe Petitioner necessarily should have been found

entirely credible. We also do not suggest that it would be proper to reverse the

administrative decision under the highly deferential standard for direct review as set

forth in INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992) and 8 U.S.C.A. §

1252(b)(4)(B). There remain numerous inconsistencies that do not appear to have

been fully addressed by Petitioner and that might support a ruling against Petitioner.

We hold only that the combined errors in this case were sufficiently pervasive that we

must conclude they may have had an affect on the outcome. The excluded evidence

provided strong support for Petitioner’s claims, was closely related to the matters

found dispositive by the Board, and involved matters that were the subject of the

questionable translation. 

III. Conclusion.

Based on the foregoing, remand is required. On remand, proper consideration

must be given to the medical evidence, focus should not be on trivial details to the

exclusion of strong evidence of abuse, and steps should be taken to ensure adequate

translation. We grant the petition for review, vacate the decision of the Board and remand for

further proceedings.

______________________________