                      FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 SUMAIRA UROOJ; KHALID                        No. 09-70628
 MAHMOOD TURK,
                Petitioners,                  Agency Nos.
                                             A-098-144-358
                 v.                          A-098-144-359

 ERIC H. HOLDER, JR., United
 States Attorney General,                        OPINION
                  Respondent.


           On Petition for Review of a Final Order
            of the Board of Immigration Appeals

                    Argued and Submitted
          June 12, 2013—San Francisco, California

                      Filed November 6, 2013

      Before: Marsha S. Berzon and Jay S. Bybee, Circuit
      Judges, and Consuelo B. Marshall, District Judge.*

                  Opinion by Judge Marshall;
                   Dissent by Judge Bybee



  *
    The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by
designation.
2                        UROOJ V. HOLDER

                           SUMMARY**


                            Immigration

    The panel granted a petition for review of the Board of
Immigration Appeals’ decision terminating petitioners’
asylum status.

    The panel held that the Board erred by relying on
impeachment evidence only in concluding that the
Department of Homeland Security had established grounds
for termination of asylum by a preponderance of the
evidence. The panel explained that DHS could not meet its
burden in this case through rebuttal documents submitted in
conjunction with the adverse inference drawn from petitioner
Sumaira Urooj’s refusal to answer questions at the hearing.

    Dissenting, Judge Bybee would deny the petition because
the IJ based his decision not only on an adverse inference
drawn from Urooj’s refusal to testify, but also on her sworn
statement admitting to concocting a false story to support the
asylum application. Judge Bybee wrote that even if the
Board erred by improperly applying its own precedent, the
proper procedure would be to remand to the Board for an
explanation and further proceedings.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     UROOJ V. HOLDER                       3

                        COUNSEL

Jonathan M. Kaufman, Law Offices of Jonathan M. Kaufman,
San Francisco, California, for Petitioners.

John Blakeley (argued), Tony West, Assistant Attorney
General, Civil Division, Emily Radford, Assistant Director,
and Patrick J. Glen, Office of Immigration Litigation,
Department of Justice-Civil Division, Washington, D.C., for
Respondent.


                        OPINION

MARSHALL, District Judge:

    Petitioners Sumaira Urooj (“Urooj”) and her husband,
Khalid Mahmood Turk (“Turk”), seek review of the Board of
Immigration Appeals’ (“BIA”) dismissal of their appeal from
a final order of removal. The order terminated their asylum
status and held them removable under § 237(a)(1)(B) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(1)(B), for remaining in the United States longer
than permitted. The order also held Urooj removable for
misrepresenting a material fact, and declared that Urooj had
filed a frivolous asylum application.

    Petitioners seek review on three bases: First, the
Department of Homeland Security (“DHS”) failed to
establish grounds for termination of asylum by a
preponderance of the evidence. Second, the IJ violated
Urooj’s due process rights when he did not require DHS to
adhere to the local operating procedures requiring advance
disclosure of both witnesses and exhibits. Finally, the BIA’s
4                    UROOJ V. HOLDER

decision affirming the IJ’s finding that Petitioners’ asylum
application was frivolous was not supported by substantial
evidence.

    Because we agree that the BIA erred in finding that DHS
established grounds for termination of asylum by a
preponderance of the evidence we grant the Petition for
Review.

                             I.

    Petitioners Sumaira Urooj and Khalid Mahmood Turk are
a married couple from Pakistan admitted to the United States
on non-immigrant visas in 2002 and 2003. Both visas
expired in 2005. While in the United States, Petitioner Urooj
submitted an application for asylum in 2004. Her husband,
Petitioner Turk, was a derivative beneficiary of this
application. In her application, Petitioner Urooj stated that
while in Pakistan she was detained or arrested on at least
three occasions, during which she was beaten, interrogated,
tortured, and threatened on account of her membership in the
Pakistan People’s Party (“PPP”), and she feared similar
mistreatment or worse if removed to Pakistan. Petitioner
Urooj’s asylum application was granted on December 23,
2004.

    In August 2005, Petitioner Urooj was interviewed by
DHS. DHS prepared a Record of Sworn Statement from the
interview, which Urooj signed. The Statement reflects that
Urooj paid an acquaintance to help prepare her application
and her acquaintance told her to “memorize the story that he
created for the asylum interview” and reminded her of details
while serving as her interpreter during the asylum interview.
It also reflects that Urooj was a member of a PPP student
                          UROOJ V. HOLDER                                5

organization but was never persecuted, arrested, or tortured
in Pakistan because of that affiliation and did not fear
persecution if she returned to Pakistan.

    Following the interview, Petitioners received Notices to
Appear and Notices of Intent to Terminate Asylum Status.
The Notices to Appear charged Petitioners with being subject
to removal pursuant to § 237(a)(1)(b) of the Immigration and
Naturalization Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), as
(1) immigrants who remained in the United States for a
longer period than authorized and (2) aliens present in the
United States in violation of law, on account of a prior
misrepresentation of a material fact pursuant to section
212(a)(6)(C) of the INA, 8 U.S.C. § 1182(a)(6)(C).

    DHS did not provide notice of its proposed witnesses or
exhibits before the hearing on Petitioners’ removability, as
required by the Local Operating Procedures (“LOP”) of the
San Francisco, California Immigration Court.1 At the
hearing, DHS called Petitioner Urooj as a hostile witness and
offered the following documents as evidence: (1) Petitioner
Urooj’s asylum application; (2) the Record of Sworn

  1
     Local Operating Procedure 3 provides “all pre-hearing briefs and
proposed exhibits must be filed with the Immigration Court no later than
fifteen (15) calendar days before the scheduled Individual Calendar
hearing, unless specifically permitted by the Immigration Judge assigned
to the matter. Except for good cause shown, an Immigration Judge will
not consider materials that are not timely submitted as in the Procedure.
This procedure shall not apply to exhibits which are to be submitted for
purposes of rebuttal and impeachment.” Procedure 3 applies the same
timeline and exceptions to submission of witness lists and provides
“[a]ttorneys shall name all proposed witnesses that they intend to bring to
a hearing and provide a brief offering as to each witness’ testimony, the
length of the witness’ testimony, and whether the witness needs an
interpreter and, if so, in what language.”
6                    UROOJ V. HOLDER

Statement; and (3) the record of oath pertaining to her asylum
application.

    Counsel for Petitioners objected, relying on the lack of
proper notice under the LOP. Questions were propounded by
DHS, but Petitioner Urooj refused to answer on advice of
counsel. While Petitioner Urooj was on the stand, DHS
offered the documents as impeachment evidence, which is
excepted from the LOP notice requirements, and the IJ
admitted them as such. The IJ also found that Petitioner
Urooj did not need to be disclosed as a “proposed witness”
within the meaning of the LOP because she was a party to the
proceedings. The IJ drew adverse inferences from Petitioner
Urooj’s refusal to answer each question she was asked.

    Following the removal hearing, the IJ terminated
Petitioners’ asylum and held that Petitioner Urooj filed a
frivolous asylum application. The IJ ordered Petitioners
removed to Pakistan.

   Petitioners sought review of the IJ’s decision to the BIA.
The BIA dismissed Petitioners’ appeal, affirming the IJ’s
decision. Petitioners timely appealed.

                              II.

    We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review final orders of removal. See Morales-Alegria v.
Gonzales, 449 F.3d 1051, 1053 (9th Cir. 2006). On review
from a decision to terminate asylum status, this Court reviews
the BIA’s factual findings for substantial evidence. Brezilien
v. Holder, 569 F.3d 403, 411 (9th Cir. 2009). Questions of
law are reviewed de novo. Id. Where, as here, the BIA
adopts the decision of the IJ, “‘we review the IJ’s decision as
                     UROOJ V. HOLDER                        7

if it were that of the BIA.’” Abebe v. Gonzales, 432 F.3d
1037, 1039 (9th Cir. 2005) (en banc) (quoting Hoque v.
Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004)).

                             III.

    In proceedings to terminate a grant of asylum, DHS must
establish the grounds for termination by a preponderance of
the evidence. 8 C.F.R. § 1208.24(f). The pivotal legal
question before this Panel, which we review de novo, is
whether DHS can satisfy its burden through impeachment
evidence only. Our conclusion is that it cannot.

    Where, as here, the sole witness refuses to answer
questions, DHS cannot satisfy its burden, “in the absence of
any substantive evidence . . . , based solely upon the adverse
inference drawn from . . . silence.” Matter of Guevara,
20 I. & N. Dec. 238, 244 (BIA 1990). As the BIA aptly
observed in Guevara, “if the ‘burden’ of proof were satisfied
by a respondent’s silence alone, it would be practically no
burden at all.” Id. at 244.

     The IJ distinguished the evidentiary record in this case
from that in Guevara and justified the different result by
relying on the impeachment evidence offered by DHS. The
IJ held that Petitioner Urooj’s “refusal to testify, taken in
conjunction with the documentation submitted by the DHS
. . . is sufficient to demonstrate by a preponderance of the
evidence that ‘there was a showing of fraud in [her]
application . . .’.” We disagree. Impeachment evidence alone
cannot satisfy DHS’ burden where there was no substantive
evidence and thus nothing to impeach.
8                         UROOJ V. HOLDER

     It is clear both from the transcript of the proceedings and
the IJ’s written decision that the IJ admitted the documentary
evidence proffered by DHS for impeachment purposes only.2
Impeachment evidence is limited to “show[ing] background
facts which bear directly on whether [the factfinder] ought to
believe [one witness] rather than other and conflicting
witnesses.” Gordon v. United States, 383 F.2d 936, 940
(D.C. Cir. 1967); see also Fed. R. Evid. 607, 608
(impeachment includes attacking witness credibility and
character for truthfulness or untruthfulness); 4 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence, § 607.03[1] (2d ed. 1997) (“[T]he technicalities
surrounding impeachment tend to submerge the basic aim of
all credibility rules: to admit evidence that enables the trier of
fact to determine whether or not the witness is telling the
truth.”) Where there is no act of “telling,” there is no need to
determine the credibility of the witness.3

    Rather than terminating the proceedings for lack of
substantive evidence, the IJ and BIA relied on the
impeachment evidence for proof of the facts in dispute. This
reliance was error, as it improperly conflated impeachment

    2
   The IJ overruled Petitioners’ objection to the documentary evidence,
holding that impeachment evidence is excepted from the advance notice
requirement imposed on other categories of evidence.
   3
     The better course in this situation would have been to terminate the
proceedings. Duvall v. Attorney General of the United States is instructive
on this point. 436 F.3d 382 (3d Cir. 2006). In Duvall, as here, the
government called the respondent as the sole witness. Id. at 384. The
respondent refused, however, to answer the government’s questions. Id.
The government then sought to introduce the respondent’s application for
adjustment of status but the IJ ruled it inadmissible for noncompliance
with the local rules. Id. Finding that the government had failed to satisfy
its burden of proof, the IJ terminated the proceedings. Id.
                          UROOJ V. HOLDER                                  9

evidence with substantive evidence.4 See, e.g., United States
v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (emphasizing
“subtle distinction between impeachment and substantive
evidence”); Robert E. Jones, et al., Federal Civil Trials &
Evidence § 8:1954 (2013) (“Impeachment evidence proves
only that the declarant lacks credibility; substantive evidence
proves the facts in dispute”). The IJ found the impeachment
evidence to be “probative on the issues of fraud . . . . [and]
give[n] full evidentiary weight.” Similarly, the BIA found
the impeachment evidence to “indicate that [Urooj] knew her
asylum application contained false statements and that she
made false claims in support of it during her asylum
interview.” The decisions of the IJ and the BIA in this case
relieved DHS of its burden of proof, allowing it to prove the
facts in dispute by offering only impeachment evidence
unconstrained by the procedural rules of notice.5

    We agree with the First Circuit that “‘the United States
Government should not be bailed out from the need to present
an adequate prima facie case . . . . We should not encourage
the cutting of corners by an agency having such significant

     4
     We are not called upon to determine whether the IJ could have
properly admitted the documentary evidence as substantive evidence, and
then reached the same result, and we do not opine on that issue.
 5
   The Immigration Court Practice Manual replaced all Local Operating
Procedures nationally on July 1, 2008. See U.S. Dep’t of Justice, Exec.
Office for Immig. Rev., Immigration Court Practice Manual. The Manual
continues to require advance disclosure of proposed exhibits with the
exception of exhibits used for impeachment or rebuttal. See also Fed. R.
Civ. P. 26(a)(1)(B) (providing an exception to the regular disclosure
requirements when documents will be used “solely for impeachment”);
Tamenut v. Ashcroft, 361 F.3d 1060, 1061 (8th Cir. 2004) (holding that
“evidence . . . offered to impeach Petitioner’s credibility” is excepted from
disclosure requirements).
10                   UROOJ V. HOLDER

responsibilities.’”    Navia-Duran v. Immigration and
Naturalization Serv., 568 F.2d 803, 811 (1st Cir. 1977)
(quoting Sint v. Immigration and Naturalization Serv.,
500 F.2d 120, 124 (1st Cir. 1974)). We thus conclude that
DHS did not meet its burden of establishing the grounds for
termination of asylum by a preponderance of the evidence.
Cf. Duvall v. Attorney General of the United States, 436 F.3d
382, 384 (3d Cir. 2006). We need not reach the merits of
Petitioners’ remaining arguments in support of review.

                             IV.

     Accordingly the Petition for Review is GRANTED.



BYBEE, Circuit Judge, dissenting:

     The majority holds that the Department of Homeland
Security (“DHS”) cannot satisfy its burden of establishing
grounds for termination of a grant of asylum by a
preponderance of the evidence where the sole witness refuses
to answer questions and documentary evidence is offered
only for impeachment. Maj. at 7. Remarkably, for support,
the majority principally relies on the Board of Immigration
Appeals (“BIA”) decision in Matter of Guevara, 20 I. & N.
Dec. 238 (BIA 1990). But in that case, the BIA said just the
opposite: “[A]n adverse inference may indeed be drawn from
a respondent’s silence in deportation proceedings.” Id. at 241
(citing U.S. Supreme Court and Ninth Circuit authority). As
I explain, infra, the BIA qualified that rule in Guevara,
holding that silence can be evidence; it just can’t be the only
evidence. Id. at 243–44. That qualification doesn’t help
Petitioner Urooj.
                     UROOJ V. HOLDER                       11

    Because the Immigration Judge (“IJ”) not only based his
decision on an adverse inference drawn from Urooj’s refusal
to testify but also on Urooj’s sworn statement admitting to
concocting a false story to support her asylum application, I
would deny the petition. But even if I thought that the BIA
had acted inconsistently with Guevara, I would remand the
matter pursuant to Immigration and Naturalization Serv. v.
Ventura, 537 U.S. 12 (2002). Guevara is not a constitutional
or a statutory mandate; it is the BIA’s own evidentiary rule.
And for that reason, if I thought the BIA had misapplied its
own rule, I would give it the opportunity to address our
concerns in the first instance. Accordingly, I respectfully
dissent.

    In Guevara, the respondent was charged with entering the
United States without inspection in 1987 in violation of
241(a)(2) of the Immigration and Nationality Act, then
codified at 8 U.S.C. § 1251(a)(2) (1988). 20 I. & N. Dec. at
239. He never admitted to the crime and contested the
allegations from the beginning, and, in an initial appearance
before the IJ, apparently informed the IJ through counsel that
he would move to suppress any evidence produced as a result
of his apprehension. Id. He appeared a second time before the
IJ and was called as a witness by the government. Id. He
refused to testify, asserting his Fifth Amendment privilege
against self-incrimination, even after the IJ informed him of
the existence of an “Agency Order” from the Immigration
and Naturalization Service (“INS”) that directed him to
testify and purported to immunize him from the use of any of
his testimony in any future criminal proceedings. Id. at
239–40. “The Service presented no evidence to establish the
respondent’s alienage and deportability other than the
respondent’s silence in the face of questioning.” Id. at 240.
On the basis of that silence alone, the IJ drew an adverse
12                    UROOJ V. HOLDER

inference, shifted the burden of proof to Guevara, and noted
that he had not established the time, place, or manner of his
entry, and was, therefore, deportable as charged. Id.

    The BIA reversed. It began by noting that “an adverse
inference may indeed be drawn from a respondent’s silence
in deportation proceedings.” Id. at 241. “Thus, it is clear that
when confronted with evidence of, for example, the
respondent’s alienage, the circumstances of his entry, or his
deportability, a respondent who remains silent may leave
himself open to adverse inferences, which may properly lead
in turn to a finding of deportability against him.” Id. at 242.
It distinguished Guevera’s case, though, by explaining that
“[u]nder the circumstances presented here, the respondent’s
silence alone does not provide sufficient evidence, in the
absence of any other evidence of record at all, to establish a
prima facie case of alienage, sufficient to shift the burden of
proof to the respondent under [8 U.S.C. § 1361].” Id.
“[W]hile we have held that a respondent’s silence may fairly
corroborate other evidence presented for the record, we have
also stated that ‘[s]uspicion cannot be solidified into proof by
the mere silence of respondent.’” Id. at 243 (internal citations
omitted; second alteration in original). And in that case, the
INS had “introduced no other evidence” but respondent’s
silence. Id. at 244.

    This is not the case here. In the instant case, the IJ did not
rely “mere[ly on Urooj’s] silence,” id. at 243, but on the DHS
exhibits, particularly the record of her August 25, 2005
Sworn Statement where she admitted paying an acquaintance
$5,000 to help her and Petitioner Turk become U.S.
permanent residents and admitted to memorizing a false story
to tell at her asylum interview. The IJ, quoting 8 C.F.R.
§ 1208.24(a)(1), found that Urooj’s “refusal to testify, taken
                         UROOJ V. HOLDER                              13

in conjunction with the documentation submitted by the DHS
. . . [wa]s sufficient to demonstrate by a preponderance of the
evidence that ‘[t]here is a showing of fraud in the alien’s
application such that he or she was not eligible for asylum at
the time it was granted.’” Urooj was granted asylum based on
her application and interview, the IJ observed, which Urooj
had “previously indicated under oath were both false.”
Guevara was concerned with “the absence of any other
evidence of record at all,” Guevara, 20 I. & N. at 242, aside
from the alien’s silence. The facts are far different here, and
the IJ was likely justified in drawing an inference from the
Petitioner’s silence.1

    The majority believes that because this evidence was
entered as impeachment evidence instead of on the merits, it
should be ignored. Maj. at 8–9. In retrospect, perhaps the IJ
should have granted a continuance sua sponte to remedy the
DHS’s failure to provide notice of the proposed witnesses and
exhibits to Petitioners, as required by the Local Operating
Procedures of the San Francisco, California Immigration
Court. The IJ here tried to manage a confused and awkward
proceeding. Although DHS could have prevented the
confusion by submitting Urooj’s name as a witness in
conformity with the local rules, it is not entirely clear that, in


     1
        The majority also cites Navia-Duran v. Immigration and
Naturalization Serv., 568 F.2d 803 (1st Cir. 1977) for support. There, the
court vacated a deportation order where the only evidence presented by
the government in a deportation proceeding was the alien’s statement
admitting to illegal presence, because the statement was involuntary and
taken in violation of the alien’s due process rights, and was, thus,
inadmissible. Id. at 811. Here, by contrast, Urooj’s August 25, 2005
statement was not procured involuntarily; according to the record, Urooj
“does not dispute the veracity of her signed, sworn statement, nor did she
offer any explanation for the document.”
14                     UROOJ V. HOLDER

a proceeding to terminate Urooj’s asylum status for her
fraudulent statements, the DHS had to indicate it would call
Urooj herself if she declined to testify in her own defense.

    In any event, we have no warrant for overturning the
BIA’s decision based on its application of its own rules. I do
not think the BIA erred, but if we are convinced the BIA has
behaved inconsistently, the proper procedure is to remand the
case to the BIA for an explanation and further proceedings.

     I respectfully dissent.
