                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2006

Cham v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-4251




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Cham v. Atty Gen USA" (2006). 2006 Decisions. Paper 1168.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1168


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-4251


                       ABOU CHAM,
                                Petitioner

                              v.

    ATTORNEY GENERAL OF THE UNITED STATES,
                           Respondent


       PETITION FOR REVIEW OF A DECISION OF
        THE BOARD OF IMMIGRATION APPEALS
                Agency No. A79-307-524
         Immigration Judge: Hon. Donald V. Ferlise


                   Argued January 9, 2006


      Before: BARRY and AMBRO, Circuit Judges, and
               DEBEVOISE,* District Judge


                (Opinion Filed: April 28, 2006)




Joseph C. Hohenstein, Esq. (ARGUED)
Orlow & Orlow


      *
         The Honorable Dickinson R. Debevoise, Senior District
Judge, United States District Court for the District of New
Jersey, sitting by designation.
620 Chestnut Street, Suite 656
Philadelphia, PA 19106

Counsel for Petitioner


Jonathan Cohn, Esq. (ARGUED)
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
       -AND-
John J. Andre, Esq. (ARGUED)
Donald E. Keener, Esq.
Douglas E. Ginsburg, Esq.
John D. Williams, Esq.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044

Counsel for Respondent




                  OPINION OF THE COURT


BARRY, Circuit Judge

      “It is a hallmark of the American system of justice
      that anyone who appears as a litigant in an
      American courtroom is treated with dignity and
      respect. That expectation must be met regardless
      of the citizenship of the parties or the nature of the
      litigation. In a country built on the dreams and
      accomplishments of an immigrant population, a
      particularly severe wound is inflicted on that
      principle when an immigration matter is not

                                 2
       conducted in accord with the best of our tradition
       of courtesy and fairness.” 1

          The case now before us exemplifies the “severe wound
. . . inflicted” when not a modicum of courtesy, of respect, or of
any pretense of fairness is extended to a petitioner and the case
he so valiantly attempted to present. Yet once again, under the
“bullying” nature of the immigration judge’s questioning, a
petitioner was ground to bits. That immigration judge’s conduct
has been condemned in prior opinions of this court. See, e.g.,
Sukwanputra v. Gonzales, 434 F.3d 627, 637-38 (3d Cir. 2006)
(“intemperate and bias-laden remarks” interjected by the
immigration judge, “none of which had any basis in the facts
introduced, or the arguments made, at the hearing”); Fiadjoe v.
Attorney General, 411 F.3d 135, 143, 145-46, 154-55 (3d Cir.
2005) (“bullying” and “brow beating” by the immigration judge;
“continuing hostility towards the obviously distraught
[petitioner] and his abusive treatment of her throughout the
hearing,” reducing her “to an inability to respond”; and an oral
decision, later “sanitized,” which was “crude (and cruel)).” 2

        On the day on which oral argument was heard in this
case, a Deputy Assistant Attorney General appeared, at our
request, to explain what, if any, procedures are followed when
repeated conduct of this nature is seen. It is not coincidental, we
think, that on that same day the Attorney General announced “a
comprehensive review of the immigration courts.” In a
memorandum to immigration judges,3 referenced during
argument, the Attorney General made the following statement:

                I have watched with concern the reports of


       1
           Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997).
       2
       We are today filing yet another opinion in which we
condemn the immigration judge’s conduct. See Shah v.
Gonzales, Nos. 04-3607 and 05-1122 (3d Cir. 2006).
       3
        The memorandum, dated January 9, 2006, was later
submitted to the Court pursuant to Fed. R. App. P. 28(j).

                                   3
      immigration judges who fail to treat aliens
      appearing before them with appropriate respect
      and consideration and who fail to produce the
      quality of work that I expect from employees of
      the Department of Justice. While I remain
      convinced that most immigration judges ably and
      professionally discharge their difficult duties, I
      believe there are some whose conduct can aptly be
      described as intemperate or even abusive and
      whose work must improve.

He concluded his statement by reminding immigration judges
that “[t]o the aliens who stand before you, you are the face of
American justice” and “insist[ing] that each be treated with
courtesy and respect.” We agree that most immigration judges
“ably and professionally” discharge what surely are “difficult
duties.” We write because one of them, the Hon. Donald V.
Ferlise, has seen fit on more than one occasion, including that
now before us, not to do so.

                                I.

       We begin with a taste of the conduct which so troubles us,
conduct which tainted the entire proceeding. At the very outset
of the hearing, petitioner Abou Cham said, in English, that he
was born in 1978.

      JUDGE TO MR. CHAM
             Q.      All right. Remember what I told
      you, Mr. Cham? Mr. Cham, these instructions are
      not really earth shattering. They’re not that
      complicated. We are going to stay totally in the
      Wolof language, now. All right?
             A.      Okay.
             Q.      Just, just answer in the Wolof
      language. It’s rather simple. All right. What’s
      your full date of birth, sir?
             A.      1979.
             Q.      All right. Did you not just tell me
                     1978?

                                4
              A.      ’78.
              Q.      Mr. Cham–
      MS. DUSSEK TO MS. IBRAHIM.4
              It’s going to be a long day.
      JUDGE TO MR. CHAM
              Q.      Mr. Cham, the question is a rather
      basic question. When were you born? You said in
      English, 1978. You said to interpreter in the
      Wolof language, 1979, or at least that was
      interpreted as 1979. I just brought that to your
      attention. Now, we’re back to 1978. When were
      you born, Mr. Cham? Give me your date of birth?
              A.      I, I cannot count it in Wolof. That’s
      the reason why I’m a little confused.
              Q.      I want to know the date you were
      born, sir.
              A.      1978.
              Q.      What date? Give me a month.
              A.      September. September 28.
              Q.      And, please –
              A.      I’m sorry, sir. I’m sorry.
              Q.      Would you, please, remain in the
      Wolof language. I don’t know why you’re doing
      this. I’m giving you instructions to speak only in
      Wolof and you keep intermingling English and
      Wolof. So, what’s your date of birth, now? Sir,
      the questions are going to get progressively more
      difficult. We’re two minutes into the hearing and
      already you’re having difficulty with a simple
      question. When were you born?
              A.      When it come to counting, Your
      Honor, I am, I’m not very, very good at it in
      Wolof. I am better at counting in English than I
      am in Wolof. I’m very sorry.
              Q.      I’m not asking you to count. I’m
      asking you to give me a month. Give me a month



      4
       Ms. Dussek was government counsel and Ms. Ibrahim
was Cham’s counsel.

                               5
      that you were born.
             A.     Okay. I would like to know, Your
      Honor, if I can say the month in English?
      JUDGE TO [INTERPRETER]
             Mr. Interpreter, in the Wolof language, are
      the months January, February, March – are there
      12 months?
      [INTERPRETER] TO JUDGE
             Yes, there are, there are 12 months but they
      use the arabic [names for the] month . . .
      JUDGE TO [INTERPRETER]
             All right. Well, you’ll know that. You’ll
      know the months – don’t you?
      [INTERPRETER] TO JUDGE
             Your Honor, personally, I know few of
      them. I don’t know all of them . . . I use the
      French or the English . . .
      JUDGE TO MR. CHAM
             Q.     Okay. What’s the – give me your
      date in English, date of birth in English.
             Q.     September 28, 1978.

(A.R. 91-93.)

      And just moments later:

      JUDGE TO MR. CHAM
             Q.     Mr. Cham, do you have a problem
                    following directions?
             A.     I’m sorry, sir. I’m sorry.
             Q.     Well, I’m, I’m tired. I’m sorry. And
      I’m tired of hearing you say I’m sorry. I don’t
      want you speaking English.
             A.     Okay.
             Q.     Don’t you understand the problem?
      Don’t you understand this premise?
             A.     Okay.
             Q.     I don’t want you speaking English. I
      gave you the opportunity and you flubbed the
      opportunity. You were tripping all over the words

                                6
      in English. Your English is not that good. I
      thought it was better. Now, instead of using your
      native language with the interpreter that I’ve
      provided at some cost to the Government, you
      want to impress me with your English. Stay in that
      Wolof language.
             A.     Okay, sir.
             Q.     You’re just delaying everything here.
             A.     I’m sorry, sir. I’m sorry. I’m very
                    sorry. Forgive me.

(A.R. 99-100.)

      Shortly thereafter, Judge Ferlise saw another opening
when the subject of Cham’s age resurfaced.

      MS. DUSSEK TO MR. CHAM
              Q.     Now, you stated that you were 14
      when you left the Gambia. Is that right?
              A.     Yes.
              Q.     But in, in, in 1994, if you were born
      in 1978, you would have been almost 16, wouldn’t
      that, wouldn’t that be true?
              A.     I know my age but I think I’m in the
      – not far from, not far in between.
      JUDGE TO MR. CHAM
              Q.     Not far from what?
              A.     Not far from between 14 and 16 –
                     15.
              Q.     You were 16, sir. . . . You were born
      in ’78. You were 3 months less – shy of being 16 .
      . . . You told me you were 14 when [the coup]
      occurred. I’m telling you you were three months
      short of being 16. There’s a big difference
      between 14 and almost 16. So I want to know why
      you told me you were 14.
              A.     I apologize. It’s just so much going
      in my mind but that’s a mistake of – on my part.
      JUDGE TO MS. DUSSEK
              Proceed.

                               7
(A.R. 140-41.)

        The belligerence continued:

        JUDGE TO MR. CHAM
            A.    No, sir, I’m – like I’m very sorry . . . .
            Q.    Would you stop with the sorry. Just give
                  me an answer.

(A.R. 160.)
                               .   .   .

                Q.    You know what I’m talking about, now give
                      me an answer.

(Id. at 163.)

               Q.      Look, I’m not going to play games
        with you. You know what I’m talking about.
        Now, you better come up with an answer pretty
        quickly or I’ll find that you’re non-responsive.
               A.      I’m sorry.

(Id.)

      Towards the end of the second day of the hearing, and
immediately after excluding evidence Cham sought to present,
Judge Ferlise went after Cham one last time.

        JUDGE TO MR. CHAM
               Q.     All right. All right, Mr. Cham, I
        want you to take the witness stand. Why are you
        laughing, Mr. Cham? Is this funny? Is this whole
        procedure funny to you?
               A.     No. It’s not funny.
               Q.     Then why, why are you laughing
                      inappropriately?
               A.     I’m sorry.
               Q.     Well, fine but if, if there’s a joke to
        be shared I’m more than happy to share the joke

                                   8
      with you. What’s so funny?
              A.    It’s just because I’m thinking about
      sitting back here and being hollered at and I’m
      sorry about.
              Q.    Hollered at? Stand up, Mr. Cham.

(A.R. 185.)

                               II.

        Petitioner Abou Cham, now twenty-seven years of age, is
a citizen of The Gambia. He claims to have entered the United
States on or about February 2, 2001 in Chicago, using the
Gambian passport of his cousin, Fotou Cham, who lives in the
United Kingdom. On April 10, 2001, Cham filed an application
for asylum, withholding of removal, and for relief under the
United Nations Convention Against Torture (“CAT”) with the
former Immigration and Naturalization Service (“INS”), now the
Bureau of Immigration and Customs Enforcement (“BICE”).
On June 4, 2004, the INS initiated removal proceedings against
him by issuing a Notice to Appear. Judge Ferlise held hearings
on April 7, 2003 and June 23, 2003, denied relief, and ordered
Cham removed to The Gambia. Cham filed a timely appeal with
the Board of Immigration Appeals (“BIA”). On October 6,
2004, the BIA dismissed the appeal. A timely petition for
review to this Court followed.

        Cham based his application for relief on his relationship
with his uncle, Dawda K. Jawara, who was president of The
Gambia until he was ousted by a military coup on July 22, 1994.
Jawara and his family, including Cham, are members of the
People’s Progressive Party (“PPP”), a political party that has
since been banned by The Gambia’s new regime. Because of
their association with Jawara and the PPP, four of Cham’s uncles
have been attacked and/or arrested and jailed since the coup. His
uncle, Oshous Njie, who was head of the Gambian Central Bank
in Jawara’s government was imprisoned for two years. Another
uncle, Baba Njie, a doctor, was stabbed by members of the new
regime. Two other uncles were jailed when the coup occurred.



                               9
         At the time of the coup, Cham was fifteen years old.
After two days of violence following the coup, Cham escaped
alone to neighboring Senegal to live with his aunt. He lived and
attended high school in Senegal until 2001, but left Senegal for
the United States when his aunt informed him that “there were
people looking for [him] and in my mind, those people were
nobody else but the people connected to the people in power in
Gambia.” (A.R. 118-19.) As noted above, Cham’s cousin,
Fotou Cham, helped him by getting him plane tickets to England
and then to Chicago, and by allowing him to use his Gambian
passport to make the journey. Cham fears that if he returns to
The Gambia he will be arrested because he will be easily
recognized by members of the current regime. Cham’s mother
still resides in the Gambia; his father is deceased.

       Cham submitted an affidavit from Jawara, written in
1996, which confirmed Jawara’s status as former president of
The Gambia and his relationship to Cham. Additionally, Cham
submitted a letter from Osman Salla, Jawara’s former
ambassador to the United States, which warned that “Cham’s life
could be in danger should he return to [T]he Gambia.” (A.R.
236.)

        Cham also documented the fact that seven members of
Jawara’s family have been granted asylum in the United States.
Judge Ferlise admitted the documents, but declared that “we
don’t boot strap one case on the other and I don’t see the
relevance of that group exhibit.” (A.R. 80.) According to
Cham, the PPP party is still banned in The Gambia, and its
members are still being arrested and harassed, with their
property and travel documents taken away. “[T]here’s no peace
in that country.” (A.R. 146.)

       In an oral decision rendered immediately after the hearing
concluded, Judge Ferlise denied Cham’s applications for relief
and ordered him deported to The Gambia. There is no question
that Judge Ferlise intended his decision to be bulletproof, and so
every “i” was dotted and “t” was crossed – and then some. First,
finding that Cham failed to present any proof of when he entered
the United States, Judge Ferlise found that Cham failed to

                               10
demonstrate that he filed his asylum application within one year
of entry, as required by 8 U.S.C. § 1158(a)(2)(B). Second, he
found that Cham’s testimony was “totally incredible,” and that
“[t]here is no portion of the respondent’s testimony that makes
sense to this Court.” (A.R. 62-63.) As the basis for this finding,
he cited numerous supposed inconsistencies in Cham’s
testimony and his demeanor. Third, on the basis of Cham’s
“total incredibility,” he found that Cham has “fabricated his
entire case in chief,” “has fabricated his testimony,” and has
filed a frivolous application for asylum. (A.R. 63.)

        Fourth, assuming that Cham’s testimony was credible,
Judge Ferlise found that Cham “has not presented a scintilla of
evidence that he has ever been persecuted,” and has failed to
“establish a well-founded fear of persecution [or] establish[] that
it is more likely than not that he would be persecuted again if he
is returned to The Gambia.” (A.R. 64.) Finally, assuming that
he was considering Cham for asylum and further assuming that
Cham was credible and that he had in fact been persecuted in the
past, Judge Ferlise concluded that Cham’s application would still
be denied because he could avoid future persecution by simply
returning to Senegal where he lived for years without any
problem.

       On appeal, the BIA adopted and affirmed the denial of
Cham’s substantive claims “for the reasons stated” by Judge
Ferlise. (A.R. 2.) However, the BIA reversed Judge Ferlise’s
finding that Cham filed a frivolous asylum application – the
record did not disclose that the application was knowingly
fabricated and Judge Ferlise failed to “provide a sufficient
explanation” for why he came to that conclusion.5 (A.R. 3.) The



       5
         We cannot ignore the fact that Judge Ferlise typically
finds asylum applications “frivolous,” and the BIA typically
reverses that finding. We take this opportunity to observe that a
finding of frivolousness must not be made lightly, for it renders
the alien “permanently ineligible for any benefits under the
immigration laws.” See Muhanna v. Gonzales, 399 F.3d 582,
588 (3d Cir. 2005) (quoting 8 U.S.C. § 1158(d)(6)). We also

                                11
BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have
jurisdiction under section 242(a)(1) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1252(a)(1). We will review
the immigration judge’s opinion to the extent it was adopted by
the BIA. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d
Cir. 2001).

                                III.

       We began with a reminder of the “dignity,” “respect,”
“courtesy,” and “fairness,” that a litigant should expect to
receive in an American courtroom. These words, quoted by us at
the very outset of this opinion, are not merely advisory or
aspirational. Indeed, although Cham has no constitutional right
to asylum, he was entitled, as a matter of due process, to a full
and fair hearing on his application.6 See Abdulrahman v.
Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003); Abdulai, 239 F.3d at
549. A full and fair hearing would have provided him with a
“neutral and impartial arbiter[]” of the merits of his claim and “a
reasonable opportunity to present evidence on [his] behalf.”
Abdulrahman, 330 F.3d at 596 (citing Schweiker v. McClure,
456 U.S. 188, 195 (1982); Sanchez-Cruz v. INS, 255 F.3d 775,
779 (9th Cir. 2001)). Cham received neither.



observe that an adverse credibility determination does not
automatically and sufficiently support a finding of frivolousness,
for 8 C.F.R. § 208.20 requires more – “a finding of deliberate
fabrication of a ‘material element’ of an application, plus an
opportunity for the alien to account for inconsistencies.”
       6
         On appeal to the BIA, Cham raised substantive
allegations which, if true, would constitute a violation of due
process. See Abdulrahman v. Ashcroft, 330 F.3d 587, 595 n.5
(3d Cir. 2003) (“While [petitioner’s] appeal to the [BIA] did not
frame the matter in due process terms in so many words, both his
notice of appeal and his later brief to the [BIA] argued that the IJ
impermissibly based her decision on her own speculative beliefs
rather than on the evidence.”). We review the issue of whether
Cham was denied due process de novo. Id. at 595-96.

                                12
        “‘No person [may] be deprived of his interests in the
absence of a proceeding in which he may present his case with
assurance that the arbiter is not predisposed to find against
him.’” Wang v. AG of the United States, 423 F.3d 260, 269 (3d
Cir. 2005) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242
(1980)). It is crystal clear that Judge Ferlise presumed Cham’s
application to be without merit before even a shred of testimony
had been presented, and treated Cham accordingly. Indeed, early
in this opinion, when we used the phrase “ground to bits,” we
did not do so idly. From the very beginning of the two-day
hearing in this matter until the very end, Judge Ferlise
continually abused an increasingly distraught petitioner,
rendering him unable to coherently respond to Judge Ferlise’s
questions. This, of course, enabled Judge Ferlise to then
conclude that Cham’s testimony was “totally incredible” because
of inconsistencies and because his demeanor was that of “an
individual not telling the truth.” 6 (A.R. 63.)

        Beyond the belligerence, there was wholesale nitpicking
of Cham’s testimony with an eye towards finding inconsistencies
and contradictions that Judge Ferlise undoubtedly believed
would nail the lid shut on Cham’s case.7 And nitpicking it was.
For example, Cham was fifteen at the time of the coup and
testified, nine years later, that the coup took place in June 1994
when in fact it took place in July 1994. While we are at a loss to
understand the relevance, much less the materiality, of this one-
month discrepancy, Judge Ferlise made much of this “obvious



       6
          With reference to demeanor, Cham, Judge Ferlise
observed, started stuttering when he and the government asked
him questions, stuttering that became more and more
pronounced as the questions became more and more difficult –
Cham was “extremely nervous” when being questioned by them.
(A.R. 63.) Mirabile dictu.
        7
          In the past, we have been reluctant to speculate as to the
state of mind of an immigration judge. See Sukwanputra v.
Gonzales, 434 F.3d 627, 638 (3d Cir. 2006); Wang v. AG of the
United States, 423 F.3d 260, 269 (3d Cir. 2005). We are not
reluctant to do so here.

                                13
contradiction,” convinced that the date of such a “traumatic
event” would be “forever seared in [Cham’s] memory.” (A.R.
58.) Indeed, the fact that Cham made this one-month mistake
about an event which occurred years earlier when he was little
more than a boy so exercised Judge Ferlise that he found that it
“has a negative impact on his credibility and the credibility of his
case in chief.” 8 Id.

        Another example. Judge Ferlise began his opinion by
pointing out that Cham originally testified that he was born in
1978. “Then he changed it to the year 1979, then he changed it
back to the year 1978, and finally settled on being born
September 28, 1978 . . . .” (A.R. 54.) It is, of course, immaterial
to Cham’s claim of persecution whether he was born in 1978 or
1979. Moreover, it is clear from the dialogue that took place
between Cham, the interpreter, and Judge Ferlise that Cham was
being required by Judge Ferlise to say the month of his birth in
the Wolof language and was unable to do so. It is clear, as well,
that the interpreter did not know all of the months in Wolof.
When Cham was finally permitted to give the date of his birth in
English, he answered accurately and without hesitation. And, of
course, there was the exchange, quoted above, in which Judge
Ferlise ignored the fact that Cham said he was fifteen and
focused on the contradiction between fourteen and “going on
[sixteen]” (A.R. 55.) Cham was “unable” to explain this
contradiction, and Judge Ferlise concluded that “[w]henever the
Court sees a respondent’s testimony impeaching subsequent
testimony during a hearing, the credibility of the respondent and
the case in chief naturally suffers.” Id.

      We do not pause to consider the various other even more
minor discrepancies Judge Ferlise spotted, none of which even
came close to the “heart of the claim.” See Xie v. Ashcroft, 359




       8
         Another one-month discrepancy of an event four years
earlier was deemed worthy of note. Cham’s mother obtained his
passport for him and sent it to him two months later. Wrong,
said Judge Ferlise. It was three months later.

                                14
F.3d 239, 246 (3d Cir. 2004).9 Suffice it to say that what is
readily apparent as to those “discrepancies” is Judge Ferlise’s
inability to concede that any discrepancy can be minor for fear,
we suppose, that any such concession would undermine his
bottom line credibility determination. We suggest that, given
this inability, the credibility he undermined was his own.

       The belligerence of the questioning and the tension in the
courtroom fairly leap off the pages of the record. That
belligerence and that tension may well have prejudiced both
Cham’s ability to present his claims and the appropriate
resolution of those claims. It certainly demonstrated the
intensity with which Judge Ferlise sought, at all costs, to support
his denial of relief to Cham with an adverse credibility
determination.

       Judge Ferlise also denied Cham a reasonable opportunity
to present evidence on his own behalf. During the April 7
hearing, Judge Ferlise reluctantly admitted into evidence
documentation that seven of Cham’s aunts, uncles and cousins
had been granted asylum in the United States on grounds
allegedly similar to those Cham asserted. In the course of doing
so, however, he informed Cham’s counsel that “we don’t boot
strap one case on the other and I don’t see the relevance of that
group exhibit.” (A.R. 80.) The hearing was continued to a later
date before Cham’s three witnesses – family members who had
been granted asylum and who Judge Ferlise knew were in court
intending to corroborate Cham’s testimony about the political



       9
         Although not directly pertinent to our due process
analysis, we note that for all petitions filed after May 11, 2005,
an adverse credibility determination may now be made by an
immigration judge “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the application’s
claim.” REAL ID Act of 2005, Pub. L. No. 109-13, §§
101(a)(3)(iii), 101(h)(2). (May 11, 2005) (codified at 8 U.S.C. §
1158(b)(1)(B)(iii). Because Cham’s petition was filed on or
about November 19, 2004, this provision does not apply to his
case.

                                15
situation in The Gambia – could be reached. When that date
arrived, Judge Ferlise was advised that the witnesses could not
be present due to work commitments, but that they would be
present at a subsequent date. Judge Ferlise informed Cham:
“No, there’s (sic) no more next times. Today is your last
hearing, sir.” (A.R. 180.)

        An applicant “cannot rely solely on the persecution of
[his] family members to qualify for asylum,” Ciorba v. Ashcroft,
323 F.3d 539, 545 (7th Cir. 2003), or “bootstrap,” as Judge
Ferlise termed it, but surely such evidence can be relevant to an
asylum applicant’s claim, see, e.g., Khalaj v. Cole, 46 F.3d 828,
833 (8th Cir. 1994) (stating that a grant of asylum to “family
members who share a petitioner’s political beliefs is material to
the likelihood of the petitioner’s own persecution” so long as the
cases share similar circumstances). This is particularly true
where, as alleged here, there is a high degree of factual similarity
between the applicant’s claim and those of his family members,
and where his claim of political persecution rests on that very
familial relationship. See, e.g., Bropleh v. Gonzales, 428 F.3d
772, 777 (8th Cir. 2005).10

       While Judge Ferlise did allow documentation of Cham’s
relatives’ grants of asylum to be admitted into evidence, “if a
document is admitted into evidence with the caveat that it will be
given ‘no weight,’ that is tantamount to an exclusion of

       10
          Bropleh feared persecution if removed to his native
Liberia because he opposed the current government, and because
the government knew his brother had been granted asylum in the
United States. Bropleh v. Gonzales, 428 F.3d 772, 775 (8th Cir.
2005). He argued that the immigration judge who denied his
asylum application violated his due process rights because
asylum was granted to his brother under nearly identical
circumstances. Id. at 777. The Eighth Circuit disagreed, noting
that the immigration judge admitted the brother’s immigration
files into evidence, and concluded that the circumstances of the
case were not sufficiently similar. Id. at 777. The implication is
that, had they been similar, the brother’s grant of asylum would
have been relevant to Bropleh’s application.

                                16
evidence.” Liu v. Ashcroft, 372 F.3d 529, 531 n.3 (3d Cir.
2004). Judge Ferlise failed to “see the relevance” of that
evidence, and did not even mention it in his opinion denying
relief. Due process demands that an immigration judge “actually
consider the evidence and argument that a party presents.”
Abdulai, 239 F.3d at 549 (internal quotations omitted). See also
Chen v. Gonzales, 417 F.3d 268, 272-73 (2d Cir. 2005)
(following Abdulai, and surveying reversals of the BIA by other
circuits for failure to properly consider relevant evidence). We
do not find it irrelevant that such a large number of Cham’s
immediate family members were granted asylum, and wonder,
because we cannot know, whether that testimony would or
should have made a difference.

        The government does not attempt to defend Judge
Ferlise’s conduct, but argues that, putting that conduct aside and
assuming that Cham was credible, the petition should be denied
because Cham does not merit relief. The issue here, however,
“is not whether the evidence as it stands supports the result
reached by the immigration judge and the BIA,” but instead “is
whether the original deportation hearing was conducted in a fair
enough fashion for one to determine that the BIA’s decision was
based on reasonable, substantial, and probative evidence.”
Podio v. INS, 153 F.3d 506, 509 (7th Cir. 1998). In Podio, the
Court of Appeals for the Seventh Circuit held that an asylum
applicant’s due process right to a fair hearing was violated by an
immigration judge’s conduct, conduct strikingly similar to Judge
Ferlise’s conduct. There, as here, the immigration judge
continuously interrupted the petitioner’s testimony, preventing
important parts of his story from becoming part of the record.
Id. at 509-10. There, as here, the immigration judge denied
petitioner’s relatives – who had been granted asylum under
similar circumstances – the opportunity to testify and corroborate
his claim, stating that “they’ve got nothing to do with this
case.” 11 Id. at 510-11. Finding that these actions “had the

       11
          While these grants of asylum were not dispositive, the
Seventh Circuit said, they were relevant “in light of the fact that
[the relatives] followed [Podio] to the United States from
Ukraine and were both granted asylum.” Id. at 510-11.

                                17
potential for affecting the outcome of [the] deportation
proceedings,” the Seventh Circuit remanded for a new hearing.
Id. at 511 (internal quotations omitted).

       It is far from clear that Cham would have qualified for
asylum, withholding of removal or CAT relief had there not been
belligerent questioning and a failure to consider relevant
evidence. The standard for a due process violation, however, is
not so high. It is only required “that the violation of a procedural
protection . . . had the potential for affecting the outcome of
[the] deportation proceedings.” Shahandeh-Pey v. INS, 831 F.2d
1384, 1389 (7th Cir. 1987). Had Cham not been brow beaten,
and had corroboration by his relatives been actually heard and
considered, it is possible that material details surrounding his
experience would have come to light, justifying relief from
deportation. We, therefore, conclude that Cham “must be given
a second, and a real, chance to ‘create a record’ in a deportation
hearing that comports with the requirements of due process.”
See Podio, 153 F.3d at 511.12

                                IV.

       One final, and wholly predictable, word. We urge that, on
remand, a different immigration judge be assigned to any further
proceedings. See Sukwanputra, 434 F.3d at 638 (“[W]hile we
recognize that the assignment of an immigration judge is within
the province of the Attorney General, if on remand an
[immigration judge’s] services are needed, we believe the parties
would be far better served by the assignment to those

       12
          Perhaps, on remand, Cham, now out of the cauldron,
will be able to show that he filed his asylum application within
one year of entry, as required by 8 U.S.C. § 1158(a)(2)(B).
However, we reject his arguments that the one-year period of
limitations of 8 U.S.C. § 1158(a)(2) for filing an asylum
application violates both the Supremacy Clause and the Due
Process Clause of the United States Constitution, and that 8
U.S.C. § 1158(a)(3), which bars judicial review of § 1158(a)(2)
determinations, violates the Due Process Clause. See
Sukwanputra, 434 F.3d at 631-32.

                                18
proceedings of a different [immigration judge].” (quoting
Korytnyuk v. Ashcroft, 396 F.3d 272, 287 n.20 (3d Cir. 2005))
(citations and internal quotation marks omitted)).

       We will grant the petition for review, vacate the order of
the BIA, and remand to the BIA for further proceedings
consistent with this opinion. We, of course, take no position on
whether, at the end of the day, petitioner should prevail.




                               19
