                                                                 [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 09-10716                 ELEVENTH CIRCUIT
                                                               FEBRUARY 22, 2010
                           ________________________
                                                                   JOHN LEY
                                                                    CLERK
                            Agency No. A077-997-838

XUE TONG ZOU,

                                                                         Petitioner,
                                      versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                           ________________________

                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                           _________________________
                                 (February 22, 2010)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Xue Tong Zou, a Chinese national, petitions for review of the final order of

the Board of Immigration Appeals (“BIA”), which affirmed the Immigration

Judge’s (“IJ”) denial of his claims for asylum and withholding of removal under

the Immigration and Nationality Act, 8 U.S.C. §1101 et seq., and relief under the
United Nations Convention Against Torture. Both the Immigration Judge and

Board of Immigration Appeals rejected Zou’s application for asylum, based partly

on a government expert’s report concluding that Zou submitted fraudulent

documents in support of his claim.

        Zou claims that the government’s handling of the case violated his due

process rights under the Fifth Amendment.1 Specifically, Zou claims that the when

the government refused to produce its expert as a witness despite a promise to do

so, the hearing provided to him was fundamentally unfair. We agree and remand

the case with instruction that the government shall produce its expert as a witness.

                                      I. BACKGROUND

           Zou concedes that he illegally entered the United States in February 2002.

In March 2002, the Department of Homeland Security issued a notice to appear,

charging that Zou was subject to removal as an immigrant without valid entry

documents. In September 2002, Zou filed an application for asylum. He claimed

asylum eligibility based on fear of future persecution due to his resistance to

China’s family planning policies.

        In his asylum application, Zou stated that he was born in 1973 and his wife,

Xie Shou Jin, was born in 1975. They first met in 1994 and began living together



       1
           “No person shall . . . be deprived of life, liberty, or property, without due process of law
. . . .” U.S. Const. amend. V.
                                                     2
in 1995, but decided not to marry because they were below the minimum age. In

October 1996, Jin gave birth to their child, who was adopted by a neighboring

family in January 1997. In August 2001, Jin became pregnant for a second time.

The couple sought and obtained a marriage certificate from the government and

married in September of 2001. However, before they could register their

completed marriage with the government, a neighbor informed the authorities that

the couple had previously had a child.

      Based on this information, Zou claims that Chinese family planning officials

threatened to sterilize him if his wife did not have an abortion. Due to the threats,

the couple went into hiding September 2001 and Zou fled China the following

month. Zou’s wife remained in hiding in China and gave birth to her second child

in June 2002. Zou claims family planning officials discovered his wife in 2003

and forcibly sterilized her. Zou contends that if not granted asylum, he would be

fined and forcibly sterilized upon his return to China.

      In support of his application, Zou filed a copy of an October 2001 notice

from the Chinese family planning officials finding that he violated family planning

laws and was required to report for sterilization. Additionally, he filed copies of

notices from 2002 and 2003 in which Chinese officials demanded that he and his

wife report for a fine and sterilization. A 2003 operation certificate reported that

Zou’s wife had been sterilized and a letter from Zou’s wife stated that the
                                           3
sterilization was involuntary. A letter, which appears to be from Zou’s mother,

reported that in November 2003, family planning officials arrested Zou’s parents

for a second time because officials could not find him. Zou also filed (1) a 2003

notarial certificate stating that Zou and his wife married in September 2001;2 (2) a

2002 birth certificate stating that a daughter was born to Zou and his wife; and (3)

a birth certificate dated October 1996 stating that a son was born to Zou and his

wife.

        In response to Zou’s petition for asylum, the government had Elaine

Wooten, a forensic document examiner with the Department of Homeland

Security, analyze the documents submitted by Zou. In her forensic document

laboratory report, Wooten concluded, in relevant part, that (1) she could not

authenticate the marriage certificate, (2) that the sterilization certificate was

“unlikely genuine,” and (3) both birth certificates were counterfeit. Wooten

assigned a range of authenticity to the remaining documents, finding most to be

indeterminable.

        Zou hired Larry Ziegler, a former government forensic document examiner

now in private practice, to counter Wooten’s laboratory report. Ziegler examined

the documents and assembled his own forensic document laboratory report.

        2
         The IJ noted that notarial certificates have limited value because China has a “fee for
service” notarial system and these documents may be bought to reflect the purchaser’s
statements.
                                                   4
Ziegler found that the notarial marriage certificate was genuine. Ziegler also

concluded that it could not be conclusively determined whether the birth and

sterilization certificates were genuine and it was therefore improper to consider

them counterfeit. Ziegler stated that proper procedure under laboratory policy

would be to report that no determination could be made. Ziegler testified to his

conclusions at Zou’s initial hearing.

      At the time Ms. Wooten’s written report was admitted, Zou orally requested

that Ms. Wooten be subpoenaed to testify and filed a motion accordingly. The

government stated that a subpoena was unnecessary as Wooten would be made

available at the hearing. The IJ accepted this promise and declined to issue a

subpoena for Wooten.

      A hearing on the merits of Zou’s claims was held in four parts: June 2005,

August 2005, December 2005 and finally, March 2006. Wooten was scheduled to

testify at the August 2005 hearing, but was never called as a witness due to time

constraints. The government recognized its failure to produce Wooten and

promised that Wooten would be made available at a later date.

      Despite Zou’s objection, Wooten was not made available at the two

subsequent hearings. When asked by the IJ when Wooten might be available,

government counsel admitted in both instances that they had failed to contact her

and request her appearance. In her ruling, the IJ noted Wooten’s absence, but
                                          5
found that Wooten’s report referencing fraudulent documents, coupled with

inconsistences in Zou’s testimony were enough to find that Zou’s story was not

credible. The IJ’s opinion states that she afforded “great weight” to Wooten’s

report in making her ruling. Relying partly on her determination that Zou was not

a credible witness, the IJ denied Zou’s petition for asylum.

      The denial was affirmed by the BIA, which found that the IJ’s credibility

findings were not clearly erroneous. Zou then appealed the case to this court,

which granted a motion to remand the case back to the BIA for consideration of

Zou’s due process argument. On its second review, the BIA again affirmed the

decision of the IJ, holding that the failure of the government to produce its witness

did not constitute a due process violation.

      In its decision, the BIA adopted and incorporated by reference its previous

decision regarding the merits of Zou’s applications for relief. The BIA asserted

that Zou was given the opportunity to call his expert witness to dispute the

government’s findings regarding the authenticity of the documents submitted. The

BIA concluded that such an opportunity satisfies the government’s burden of

providing Zou a full and fair hearing in an immigration proceeding. As such, the

BIA asserted that the government was not legally bound to produce Wooten,

despite their promises to do so. Zou now seeks relief from the BIA’s decision.



                                              6
                              II. SCOPE OF REVIEW

      We review only the BIA’s decision, except to the extent the BIA

expressly adopted the IJ’s reasoning. See Lin v. U.S. Att’y Gen. 555 F. 3d 1310,

1314 (11th Cir. 2009). We review legal conclusions de novo. See id. Credibility

determinations and factual findings are reviewed under the substantial evidence

test and are left undisturbed if “supported by reasonable, substantial, and probative

evidence.” Id.

      Here, the BIA expressly adopted the IJ’s findings, including her partial

adverse credibility determination regarding Zou. The IJ determined that Zou

“submitted documents that appeared to be fraudulent or counterfeit and that relates

to his credibility . . . .” The BIA incorporated this determination in its second

opinion, which is now under review. As such, the IJ’s determination regarding the

authenticity of the documents in question fall squarely before this court.

                                 III. DISCUSSION

      Aliens are entitled to due process of law in deportation hearings. Ibrahim v.

U.S. I.N.S., 821 F.2d 1547, 1550 (11th Cir. 1987). This due process requirement is

satisfied only by a full and fair hearing. Wong Yang Sung v. McGrath, 339 U.S.

33, 49-51, 70 S. Ct. 445, 453-54 (1950). In order to establish that they did not

receive a full and fair hearing, “aliens must show that they were deprived of liberty

without due process of law, and that the asserted errors caused them substantial
                                           7
prejudice.” Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003)

(per curiam).

       Zou contends that the government’s failure to produce a promised witness

deprived him of his right to a fair hearing. We agree. Zou timely requested a

subpoena so that he could examine Wooten at his hearing. He did so both orally

and in writing. The IJ declined to issue the subpoena based wholly upon the

representation by the government that they would produce the witness. Zou was

therefore left without immediate recourse when the government failed to follow

through on its promise. The government simply cannot fail to live up to its

promise and then reap benefits from that failure.3

       Additionally, the failure was not a mere oversight. The record shows that

after time ran long at the August 2005 hearing, government counsel failed to even

contact Wooten to request her appearance at the December 2005 or March 2006

hearings. When questioned by the IJ at both hearings, government counsel

admitted that they had not been in contact with Wooten and were unaware of her

whereabouts. This repeated failure shows utter disregard for the promises made to

Zou and the IJ.



       3
        It is very disappointing to have a situation where the government’s lawyer promises to
produce a witness and then makes no effort to do so despite repeated opportunities followed by
an argument before us that there was no obligation to do so. This type of playing “fast and
loose” with the system is inconsistent with basic notions of due process and fairness.
                                                  8
      The IJ decided to move forward without Wooten’s testimony in an attempt

to conclude the case without granting a continuance. While an IJ has considerable

authority to regulate the course of the hearing, the Immigration and Nationality Act

provides that an alien must be permitted a reasonable opportunity to cross-examine

witnesses presented by the government. 8 U.S.C. § 1229a(b)(4)(B). While the

statute on its face does not give an alien the right to cross-examine a witness not

called by the government, courts have recognized that the statutory purposes

behind the provision “would be frustrated if the government's choice whether to

produce a witness or to use a hearsay statement [were] wholly unfettered.”

Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir. 1988).

      The same reasoning applies in the instant case. The IJ’s broad authority to

regulate the course of the proceeding does not trump Zou’s constitutional right to a

fair hearing. The government created the duty to produce the witness by promising

to do so. It is no answer to suggest that because the Federal Rules of Evidence do

not control administrative proceedings, the government can conduct its affairs in

this fashion. The due process clause of our Constitution requires basic fairness

regardless of the forum.

      The government’s failure undercut Zou’s opportunity to fully present his

case. This denial was not harmless, as Zou was prohibited from cross-examining

the witness whose report went to the heart of Zou’s credibility and was ultimately
                                           9
determinative of the case. Therefore, the errors asserted caused Zou substantial

prejudice and denied him the opportunity for a fair hearing.

                                     IV. CONCLUSION

       It is clear that the government’s conduct deprived Zou of fair hearing, and as

such, his due process rights were violated. Therefore, we remand the case to the

BIA for remand to the IJ for a new hearing where the government produces its

expert witness.4

       REVERSED AND REMANDED.




       4
         We indicate nothing as to the final outcome of this matter. Our ruling is that under the
particular circumstances of this case, Zou must be given the right to cross examine the
government’s expert witness.
                                                10
BARKETT, Circuit Judge, specially concurring:

      I agree with the majority that the government’s refusal to produce its expert

witness, despite its promise to do so, violated Mr. Zou’s Due Process rights such

that reversal and remand for a new hearing is necessary. I would also note that this

new hearing is a clean slate for Mr. Zou as well to present any evidence of his

“other resistance,” as provided for by Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1330-

31 (11th Cir. 2009), which was published after briefing was completed in this

appeal.




                                         11
