                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-2662
VATCHAREE PRONSIVAKULCHAI,
                                                        Petitioner,
                               v.

ALBERTO R. GONZALES,
                                                       Respondent.
                        ____________
              Petition for Review of an Order of the
                 Board of Immigration Appeals.
                         No. A-79-190-556
                        ____________
    ARGUED MARCH 29, 2006—DECIDED AUGUST 29, 2006
                    ____________


  Before BAUER, KANNE, and SYKES, Circuit Judges.
   BAUER, Circuit Judge. Vatcharee Pronsivakulchai, a
citizen of Thailand, was arrested in Bangkok in October
of 2000 based on a United States warrant for drug traf-
ficking. She spent seven months in a Thai prison and was
then extradited to the United States to face trial. Once
in United States’ custody, Pronsivakulchai assisted the
Drug Enforcement Administration (“DEA”) in a criminal
investigation by writing letters to Thai gang members she
had met in prison as well as other known gang members
from her hometown, Ranong. At the direction of a DEA
agent, her letters falsely stated that she had won her case,
she was out of jail, and she was interested in buying
narcotics. Maintaining her innocence to the charges against
2                                               No. 05-2662

her, Pronsivakulchai refused a plea deal with the govern-
ment but agreed to assist them in their investigation. On
the day she was to stand trial, March 15, 2004, the govern-
ment moved to dismiss the charges against her. The
government now seeks to deport Pronsivakulchai back to
Thailand.
  Pronsivakulchai filed applications for asylum, withhold-
ing of removal, and protection under the Convention
Against Torture (“CAT”). She testified that if she is re-
turned to Thailand, she will be killed by the gang members
that she contacted while serving as an informant for the
DEA. At the immigration hearing, the government argued
that Pronsivakulchai was ineligible for asylum and with-
holding of removal because they had reason to believe she
had committed a crime in Thailand. Agreeing with the
government, the Immigration Judge (“IJ”) denied
Pronsivakulchai’s application. The IJ concluded that there
was reason to believe that Pronsivakulchai had committed
a non-political crime outside of the United States, which
would make her ineligible for asylum or withholding of
removal. The BIA affirmed and adopted the IJ’s opinion. On
appeal, Pronsivakulchai argues that the IJ denied her due
process because, among other reasons, she was not afforded
a reasonable opportunity to present evidence on her behalf
and rebut the government’s evidence that she had commit-
ted a drug trafficking crime in Thailand. She further argues
that the IJ erred in finding that she did not qualify for CAT
protection. We agree that Pronsivakulchai was denied a fair
hearing, and since Pronsivakulchai was not afforded a
reasonable opportunity to present evidence on her be-
half, we are unable to make a determination as to her
eligibility for CAT protection. Thus, we grant her petition
for review, vacate the BIA’s decision, and remand for
further proceedings.
No. 05-2662                                                3

                     I. Background
  On April 11, 2000, a United States Magistrate Judge
issued a warrant for Pronsivakulchai’s arrest. In October of
2000, Pronsivakulchai was arrested in Thailand based on
the warrant issued in the United States. She was then
incarcerated at Lad Yao prison in Bangkok for seven
months until she was extradited to the United States. While
she was detained at Lad Yao, she witnessed rampant
corruption, such as open narcotics trafficking and guards
forcing inmates to pay for their food or for places to sleep.
The prison guards also beat her.
  On May 7, 2001, she first appeared in a United States
District Court for the charges against her. Here, the
prosecutors and the DEA contacted her about assisting with
a drug trafficking investigation in Thailand. DEA Agent
Kirk Meyer asked Pronsivakulchai to write letters to
various people she had met in prison whom the DEA
believed to be drug traffickers. Pronsivakulchai agreed
when the prosecutors and the DEA told her that if she
cooperated, they would help her with her case.
  Pronsivakulchai wrote in the letters that she had won her
case in the United States and offered to buy drugs from
these individuals in exchange for cash payments, which the
prisoners could use to bribe their way out of Lad Yao.
Pronsivakulchai prepared the letters and sent them to
Agent Meyer. He in turn sent the letters on to the targeted
individuals imprisoned in Thailand.
  Agent Meyer then told Pronsivakulchai that he needed
her assistance in gathering more information for the
investigation. Pronsivakulchai agreed and asked her sister,
who was still in Thailand, to help gather more information
on the drug traffickers. She testified that in her hometown,
many drug traffickers could be identified by real estate and
other luxury items they owned. Pronsivakulchai’s sister
collected the addresses of the homes where it appeared the
4                                              No. 05-2662

drug traffickers lived. Pronsivakulchai then wrote similar
letters to these individuals.
  Specifically, Pronsivakulchai wrote a letter to Siang
Yoksap. She knew that Yoksap was involved in illegal
activity because Yoksap had previously attempted to sell
Pronsivakulchai “protection.” Yoksap was a member of the
Kon Nakorn gang, and was killed three to four weeks after
Pronsivakulchai gave her letters to Agent Meyer to send
to Thailand. Shortly after Yoksap’s death, “Cheet,” a
member of the Kan Nakorn gang, came to Pronsivakulchai’s
sister’s home in Ranong looking for Pronsivakulchai. Cheet
visited her sister many times to inquire about
Pronsivakulchai’s whereabouts. Pronsivakulchai believed
that these persistent inquiries stemmed from the letters she
wrote Yoksap as part of the DEA investigation.
  Pronsivakulchai applied for asylum because she believes
she will be killed by the individuals she “informed on,”
specifically the Thai gangs or drug dealers. She explained
that there is rampant corruption in Thailand and the gangs
and police often share information and work in conjunction
with one another. Since the gangs operate both in and
outside of prison, Pronsivakulchai believes that she will
likely be killed whether or not she is in prison.
  In January of 2004, the prosecutor offered
Pronsivakulchai a plea deal. She refused to take it be-
cause she maintained her innocence. On the day Pron-
sivakulchai’s case was set for trial, the government moved
to dismiss the case against her. After spending three
and a half years in jail in both Thailand and the United
States without being tried for a crime, Pronsivakulchai was
turned over to the Department of Homeland Security.
  On May 27, 2004, Pronsivakulchai had a master calendar
hearing in immigration court. The government argued that
Pronsivakulchai was ineligible for asylum because, they
No. 05-2662                                                    5

claimed, she was a drug trafficker in Thailand. As evidence,
the government submitted a partial and uncertified transla-
tion of a Thai warrant. The IJ gave the government another
opportunity to obtain a certified translation of the Thai
warrant. The IJ also asked for all the documents related to
the dismissed criminal case and wanted a DEA agent to
testify regarding Pronsivakulchai’s help with the DEA’s
investigation.
  The next master calendar hearing took place on July 22,
2004, and for reasons that are not clear to us, the record
contains no transcript of this hearing.1 What we can
conclude from the record is that the IJ admitted the
translated Thai arrest warrant over Pronsivakulchai’s
objection. The Thai warrant, which was issued on April 21,
2000, by a police lieutenant colonel, states that it is for the
arrest of “Mrs. VATCHAREE whose last name is unknown.”
Pronsivakulchai said she had never seen the Thai warrant
until it was entered as an exhibit in the immigration
proceedings against her. Since there is no transcript of this
hearing in the record, it is unclear if the government
complied with the IJ’s request to turn over all the docu-
ments against Pronsivakulchai in the United States’
dismissed criminal case. It is also unclear from the record
whether the DEA agent ever testified regarding
Pronsivakulchai’s assistance in the drug trafficking investi-
gation.
   Pronsivakulchai finally had a merits hearing on her
application for asylum, withholding of removal, and protec-
tion under CAT, on August 11, 2004. Because it was her
first merits hearing, Pronsivakulchai thought she could
present evidence refuting the Thai warrant and rebutting


1
  Petitioner’s counsel explained that they tried several times to
secure a transcript of the July 22, 2004, master calendar hearing
from both the immigration court and the BIA, but they were
unsuccessful.
6                                               No. 05-2662

the government’s contention that there was a reason to
believe she had committed a non-political crime in Thai-
land. Pronsivakulchai tried to present this evidence but the
IJ refused to consider rebuttal testimony or evidence
addressing the government’s contention that she was
inadmissable under Section 212(a)(2)(c) of the Immigration
and Nationality Act (“INA”) as someone they believed was
trafficking in narcotics, 8 U.S.C. § 1182(a)(2)(C)(I). The IJ
made clear that she would not consider testimony address-
ing Pronsivakulchai’s applications for asylum or withhold-
ing of removal because she decided that the government
had reason to believe that Pronsivakulchai was a drug
trafficker, and that foreclosed Pronsivakulchai’s eligibility
for asylum. To preserve the record, the IJ did allow limited
testimony. Pronsivakulchai explicitly denied that she was
involved in drug trafficking and testified that she had never
bought or sold drugs in Thailand. Pronsivakulchai also
testified that she had never been arrested in Thailand other
than for the dismissed United States case that led to her
extradition and her cooperation with the DEA.
Pronsivakulchai also offered several human rights reports,
news articles, and affidavits in support of her application.


                       II. Analysis
  A petitioner’s claim that the immigration hearing was
procedurally insufficient is reviewed de novo. Boyanivskyy
v. Gonzales, 450 F.3d 286, 291 (7th Cir. 2006). For
Pronsivakulchai to prevail on her claim, she must show
prejudice such that the IJ’s mistake impacted the outcome
of the proceedings. Rehman v. Gonzales, 441 F.3d 506, 509
(7th Cir. 2006). In this case, the BIA summarily affirmed
and adopted the IJ’s opinion. Thus, we review the IJ’s
decision as the final agency determination. Georgis v.
Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).
No. 05-2662                                                 7

  The Fifth Amendment entitles aliens to due process of
law in deportation proceedings. Reno v. Flores, 507 U.S.
292, 306 (1993). Due process requires that a court afford an
applicant a meaningful opportunity to be heard and a
reasonable opportunity to present evidence on his or her
behalf. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538
(7th Cir. 2005). Moreover, removal proceedings must be
fair. Kerciku v. INS, 314 F.3d 913, 917, 919 (7th Cir. 2003).
  Although Pronsivakulchai frames her argument in terms
of a violation of due process, we have recently noted that
“[n]on-constitutional arguments always come first; constitu-
tional contentions must be set aside until their resolution
is unavoidable.” Rehman, 441 F.3d at 508. We have cau-
tioned against “leading with an open-ended due pro-
cess argument” and advised that “[a]liens should stick with
claims based on the statutes and regulations unless they
believe that one of these rules violated the Constitution or
that lacunae in the rules have been filled with defective
procedures.” Id. at 509; see also Djedovic v. Gonzales, 441
F.3d 547, 550 (7th Cir. 2006); Boyanivskyy, 450 F.3d at 292.
Aliens have a statutory and regulatory right to a reasonable
opportunity to present evidence. See 8
U.S.C. § 1229a(b)(4)(B), 8 C.F.R. § 1240.1(c); see also
Boyanivskyy, 450 F.3d at 292. Accordingly, we will evaluate
Pronsivakulchai’s claim that the IJ denied her a reasonable
opportunity to present evidence under the applicable
statute and regulation rather than constitutional due
process. See Rehman, 441 F.3d at 509 (reframing a due
process argument as one under the statute); Djedovic, 441
F.3d at 550 (same); Boyanivskyy, 450 F.3d at 292
(reframing a due process argument as one under the statute
and regulation).
  Pronsivakulchai contends that her rights were violated
because the IJ refused to give her a reasonable oppor-
tunity to present evidence on her behalf. Specifically, the IJ
would not consider Pronsivakulchai’s testimony rebutting
8                                             No. 05-2662

the government’s claim that there was reason to believe
Pronsivakulchai had committed a non-political crime in
Thailand. The IJ stated that she would not consider any
evidence on Pronsivakulchai’s application for asylum or
withholding of removal because the IJ had already deter-
mined at the master calendar hearing that under Section
212(a)(2)(c) of the INA, Pronsivakulchai was ineligible for
asylum.
  The problem with this conclusion is that the IJ made her
determination before Pronsivakulchai was able to present
evidence on her behalf. At the master calendar hearing on
July 22, the government proffered the Thai arrest warrant,
which only identified the suspect as “Mrs. Vatcharee whose
last name is unknown,” as its evidence that there was a
reason to believe that the Vatcharee in this case had
committed a non-political crime in Thailand. Once at the
merits hearing on August 11, Pronsivakulchai tried to
offer testimony and evidence to rebut the government’s
claim that she had committed a crime in Thailand but the
IJ stopped Pronsivakulchai in her tracks. The IJ pressed
Ms. Valenzuela, Pronsivakulchai’s counsel, as to why she
was continuing with an asylum-based line of questioning.
She answered that at the master calendar hearing, the
government had raised its claim that there was a reason to
believe Pronsivakulchai committed a non-political
crime. Ms. Valenzuela was trying to address the surround-
ing circumstances that led up to what she maintained was
a warrant for Pronsivakulchai based on false charges in
Thailand. She explained that they were under the
impression from the master calendar hearing that
Pronsivakulchai would be able to present evidence as to
all three forms of relief at her merits hearing. Ms.
Valenzuela contended that the IJ had reserved ruling on
these determinative issues until the merits hearing so
that petitioner could present evidence on her behalf. But
the IJ explained that based on her notes she determined
she had already made her ruling.
No. 05-2662                                               9

  The IJ’s refusal to consider Pronsivakulchai’s rebuttal
evidence denied her an opportunity to be heard and to
present evidence on her behalf. Boyanivskyy, 450 F.3d at
293. Immigration courts must allow petitioners seeking
asylum and withholding of removal a reasonable opportu-
nity to put on their case. Rodriguez Galicia, 422 F.3d at
538. Unfortunately, we do not have the transcript of the
July 22 master calendar hearing in the record to determine
what was admitted and what was explored through testi-
mony. Regardless, Pronsivakulchai should have been given
the opportunity at her merits hearing to present evidence
and offer testimony to rebut the government’s contention
that there was a reason to believe she had committed
crimes in Thailand. A determination of inadmissibility
based on “reason to believe” must be founded on reasonable,
substantial, and probative evidence. Alarcon-Serrano v.
INS, 220 F.3d 1116, 1119 (9th Cir. 2000). Yet, the govern-
ment offered no explanation for the seemingly unlikely
conclusion that the Thai warrant that identifies a “Mrs.
Vatcharee whose last name is unknown” is indeed
Pronsivakulchai. The IJ herself even characterized the
warrant as “not much evidence.” We fail to see how the
evidence the IJ considered was reasonable, substantial, and
probative. Id. Accordingly, we find that the IJ violated
Pronsivakulchai’s statutory and regulatory rights by
denying her the opportunity to present evidence and
testimony to rebut the Thai warrant and the government’s
evidence, 8 U.S.C. § 1229a(b)(4)(B), 8 C.F.R. § 1240.1(c).
The IJ’s finding that Pronsivakulchai was ineligible for
asylum under Section 212(a)(2)(c) of the INA certainly
impacted the outcome of her hearing, and therefore it was
prejudicial.
  The government makes much of the fact that
Pronsivakulchai conceded that she was inadmissable under
the Act and has thus waived the issue of admissibility. But,
Pronsivakulchai only conceded she was inadmissable for the
10                                               No. 05-2662

administrative reason that at the time of her asylum
application she did not have a valid unexpired immigrant
visa, reentry permit, or other valid entry or travel document
required by Section 212(a)(7) (A)(i)(I) of the INA, 8 U.S.C.
§ 1182(a)(7) (A)(i)(I). We are struck by the government’s
focus on this issue because it disregards how
Pronsivakulchai arrived in the United States—by extradi-
tion—and the fact that she is still in the custody of the
Immigration and Customs Enforcement. As a practical
matter, she arrived in the United States after being extra-
dited from Thailand’s Lad Yao prison. One can imagine that
there was hardly an opportunity afforded to
Pronsivakulchai to pop home and retrieve her papers. In
fact, prior to Pronsivakulchai’s agreement to assist the
United States government in its drug trafficking investiga-
tion, it seems she hardly had an asylum claim. It was only
after she agreed to write letters to known drug dealers and
gang members to help the DEA that she developed a fear
for her life if returned to Thailand. Considering that she
arrived in the United States through extradition processes
from a Thai prison, we do not see how the fact that she
lacked a proper visa would be a bar to her asylum applica-
tion. Pronsivakulchai’s case is clearly not a typical one, but
that does not mean she cannot seek relief under the Act,
especially considering her assistance with the DEA’s
investigation.
  Remarkably, at oral argument the government’s coun-
sel conceded that Pronsivakulchai was helpful, but not
helpful enough. That is, while she agreed to write letters to
drug dealers back in Thailand to assist the DEA in its
investigation, her assistance did not prove as fruitful as the
DEA and prosecutors had hoped. Now, Pronsivakulchai’s
reward for helping the DEA is to send her back to the Thai
prison, where the gang members and drug traffickers that
she informed on still reside. As we detailed above, at
Pronsivakulchai’s first master calendar hearing the IJ
requested all the documents regarding the dismissed
No. 05-2662                                                11

criminal case against her. The IJ also requested that a DEA
agent testify regarding Pronsivakulchai’s role in the
investigation. Of course, without the transcript from the
July 22 master calendar hearing in the record, we do not
know if such testimony was taken. Yet, in the IJ’s written
opinion she dismissed Pronsivakulchai’s cooperation and
assistance with the DEA’s investigation because
Pronsivakulchai did not take the plea agreement. This,
together with the IJ’s rejection of Pronsivakulchai’s rebuttal
testimony and evidence, strikes us as fundamentally unfair.
Kerciku, 314 F.3d at 919. We do not address the issue of
whether the evidence as a whole supports the IJ’s conclu-
sion. Rather, we address whether Pronsivakulchai received
a fair hearing that allowed the IJ’s decision to be based on
reasonable, substantial, and probative evidence. Id. We
conclude that Pronsivakulchai was not afforded a fair
hearing. Therefore, her case must be remanded.


                     III. Conclusion
  Accordingly, Pronsivakulchai’s petition is GRANTED. We
VACATE the BIA’s decision and REMAND for proceedings
consistent with this opinion.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-29-06
