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Case Name:
Case Number: Date Filed: 
99-70395 01/24/01 



                                                     No. 99-70395
                                                     I&NS Nos.

Petition for Review of a Decision of the
Board of Immigration Appeals

Argued and Submitted
October 4, 2000--San Francisco, California

Filed January 24, 2001

Before: Dorothy W. Nelson, David R. Thompson, and
Stephen S. Trott, Circuit Judges.

Opinion by Judge Thompson

Jonathan M. Kaufman, San Francisco, California, for the peti-

Cindy S. Ferrier, United States Department of Justice, Office
of Immigration Litigation, Civil Division, Washington, D.C.,
for the respondent.

THOMPSON, Circuit Judge:

Rupinder Kaur and her seven-year-old daughter Loveleen
Kaur, natives and citizens of India, petition for review of an
order of the Board of Immigration Appeals ("BIA") dismiss-
ing their appeal of an immigration judge's ("IJ") denial of
their application for asylum and withholding of deportation.
We have jurisdiction pursuant to 8 U.S.C. S 1105a(a).1 We
conclude that the IJ erred by denying the Kaurs' request for
a subpoena requiring the INS to produce resource materials
the asylum officer consulted in evaluating the Kaurs' applica-
tion for asylum and withholding of deportation. Accordingly,
we grant the petition for review and remand with directions
to issue the subpoena and to hold a new asylum hearing.

I. Factual Background

The Kaurs filed an application for asylum and withholding
of deportation with the INS on June 26, 1995, alleging perse-
cution on account of political opinion, religion and member-
ship in a social group. In a referral notice issued after the
Kaurs had appeared for an interview, the INS notified them
that an INS asylum officer had decided not to grant their asy-
lum application because "[y]our testimony at the asylum
interview was not credible on material points of your claim."
The referral notice informed the Kaurs that the notice did not
1 Although 8 U.S.C. S 1105a was repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, this court continues to
have jurisdiction under 8 U.S.C. S 1105a because the deportation proceed-
ings began prior to April 1, 1997. See IIRIRA S 309(c).

constitute a final denial of their application and that their case
was being referred to an IJ. The referral notice also stated

      If you appeared for your asylum interview, the infor-
      mation you provided, including your Form I-589
      asylum application, your testimony and any support-
      ing documents, was carefully reviewed and consid-
      ered. Additionally, if you appeared for your
      interview, we consulted available resource materials
      on human rights conditions in your country.
      (Emphasis added.)

Upon receipt of the referral notice, the Kaurs filed an appli-
cation with the IJ for a subpoena to compel the INS to pro-
duce the resource materials cited in the referral notice.
Although the Kaurs recognized that the IJ's review of their
application would be de novo, the Kaurs argued that the
resource materials "may be beneficial to respondent[s] and
may help [them] sustain [their] burden. " The IJ denied the
request for a subpoena on the ground that the Kaurs had not
shown that the resource materials were essential to the pro-
ceedings. See 8 U.S.C. S 287.4(a)(2)(ii)(C).

At the outset of the asylum hearing before the IJ, the Kaurs
renewed their request for a subpoena compelling the produc-
tion of the resource materials. After the IJ again refused to
issue the subpoena, the Kaurs declined to testify in support of
their application for asylum on the ground that they could not
proceed in the absence of this essential evidence. The IJ deter-
mined that the Kaurs, by declining to testify, had abandoned
their application for asylum and withholding of deportation,
but granted the Kaurs the privilege of voluntary departure.

The BIA dismissed the Kaurs' appeal, affirming both the
IJ's determination that the Kaurs had abandoned their applica-
tion for asylum and withholding of deportation by declining

to testify at the hearing, and the IJ's refusal to issue the sub-

II. Discussion

A. Standard of Review

Where, as here, "the BIA reviews the IJ's decision de novo,
our review is limited to the BIA's decision, except to the
extent the IJ's opinion is expressly adopted." Cordon-Garcia
v. INS, 204 F.3d 985, 990 (9th Cir. 2000). We review ques-
tions of law de novo. See Aguilera-Cota v. INS , 914 F.2d
1375, 1378 (9th Cir. 1990). We review for abuse of discretion
an IJ's decision not to issue a subpoena for the production of
documentary evidence. See Cuadras v. INS, 910 F.2d 567,
573 (9th Cir. 1990).

B. 8 C.F.R S 208.9(f)

The Kaurs' first contention is that, by failing to refer the
complete record of the proceedings before the asylum officer
to the IJ, the INS violated 8 C.F.R. S 208.9(f). That regulation

      The asylum application, all supporting information
      provided by the applicant, any comments submitted
      by the Department of State or by the Service, and
      any other information specific to the applicant's case
      and considered by the asylum officer shall comprise
      the record.

According to the Kaurs, the resource materials fall within
the regulation's definition of "information . . . considered by
the asylum officer" because the referral letter stated that "if
you appeared for your interview, we consulted available
resource materials on human rights conditions in your coun-

[1] The regulation, however, does not describe the record
that must be forwarded to the IJ. See 8 C.F.R. S 208.9(f).
Rather, it describes the materials upon which the asylum offi-
cer may base his decision. The regulation that governs what
materials must be forwarded to the IJ is 8 C.F.R.S 208.2(b)
(1995), which at all relevant times provided: "In cases where
the adjudication of an application has been referred in accor-
dance with section 208.14 [Approval, denial, or referral of
application], that application shall be forwarded with the
charging document to the Office of the Immigration Judge by
the Asylum Office." (Emphasis added.) Moreover, 8 U.S.C.
S 1252(b) (1995) states that decisions in deportation cases
"shall be made only upon a record made in a proceeding
before [an immigration judge]." (Emphasis added.)

[2] Thus, the only "record" that must be forwarded to the
IJ is the application for asylum. Here, it is undisputed that the
asylum officer referred the Kaurs' asylum application to the
IJ as required by 8 C.F.R. S 208.2(b) (1995). Accordingly, the
INS did not violate 8 C.F.R. S 208.9(f).

C. Subpoena

The Kaurs argue in the alternative that the IJ erred by deny-
ing their request for a subpoena directing the INS to produce
the resource materials referred to in the referral notice. We

[3] Under 8 C.F.R. S 287.4(a)(2)(ii)(A), an IJ may issue a
subpoena requiring the production of documentary evidence
if the party applying for a subpoena explains what he or she
expects to prove by the documentary evidence and establishes
that the documentary evidence is "essential." See 8 C.F.R.
S 287.4(a)(2)(ii)(B) and (C); Cuadras, 910 F.2d at 573.

[4] The Kaurs satisfied both of these requirements. First,
the Kaurs adequately explained that they expected the
resource materials to aid in the preparation of a credible case

for asylum. The asylum officer's decision not to grant the asy-
lum application was based on an adverse credibility finding,
and he consulted the resource materials in making that find-
ing. The Kaurs reasonably expected that their credibility
would be disputed at the hearing before the IJ on grounds
related to the resource materials. Access to such documents
would enable them to address and explain any discrepancies
between their testimony and the resource materials.

[5] Second, the Kaurs made a showing that the resource
materials were essential. An immigration judge's assessment
of an applicant's credibility is a crucial consideration in
reviewing an applicant's asylum claim. See 8 C.F.R.
S 208.13(a) ("The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without corrobora-
tion."); Chand v. INS, 222 F.3d 1066, 1077 (9th Cir. 2000)
("Credible testimony by itself is sufficient to support an asy-
lum claim."). If an asylum applicant's testimony is incredible,
his or her application will be denied. See Singh-Kaur v. INS,
183 F.3d 1147, 1149 (9th Cir. 1999) ("An alien must show by
credible, direct, and specific evidence an objectively reason-
able basis for the claimed fear of persecution."). In this case,
the asylum officer's adverse credibility finding was likely
based on the resource materials that he consulted. Even
though the IJ would have made an independent review of the
asylum application, there was a high probability not only that
the government would challenge the Kaurs' credibility, but
that the resource materials would be a cornerstone of the gov-
ernment's effort to impeach their testimony. Thus, the
resource materials could prove dispositive of the IJ's determi-
nation of the credibility issue. An adverse determination of
that issue, by reason of our highly deferential standard of
review, would be almost insurmountable. See Lopez-Reyes v.
INS, 79 F.3d 908, 911 (9th Cir. 1996) ("We review a credibil-
ity finding under the substantial evidence standard, and there-
fore are required to uphold the IJ's finding unless the
evidence presented compels a reasonable factfinder to reach
a contrary result.") (citations omitted). We conclude the Kaurs

made a sufficient showing that the resource materials were

D. Abandonment of Application

The INS maintains that the Kaurs abandoned their applica-
tion for asylum and withholding of deportation by refusing to
testify at the asylum hearing after the IJ denied their request
for a subpoena. We disagree. Unlike the case relied upon by
the BIA, Matter of Balibundi, 19 I&N Dec. 606, 607 (BIA
1988), in which the applicant willfully failed to appear at his
scheduled deportation hearing, the Kaurs attended their hear-
ing but declined to testify in the absence of the opportunity to
review evidence essential to their asylum claim.

E. Conclusion

We grant the petition for review and remand to the BIA
with directions to remand to the IJ for issuance of a subpoena
requiring the INS to produce the resource materials and for a
new asylum hearing.




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