Semenov (not precedential): Indiscernable Parts of Transcript Undermine BIA's Overturning IJ's Decision

Semenov v. Holder
http://www.ca3.uscourts.gov/opinarch/073178np.pdf
Not Precedential
September 28, 2009

Judges Barry, Fisher, and Jordan. Opinion by Judge Fisher.

Overturning the BIA and questioning how the BIA reversed the decision by IJ Walter A. Durling.

IJ Durling noted the expert's testimony in granting withholding of removal under CAT. The transcript is full of indiscernible portions. Amazingly, though, the BIA felt it had enough of a grasp of the transcript despite over 100 notations of indiscernible moments, to overturn IJ Durling's decision. It might have violated the requirement to give a complete transcript of the proceedings under 8 CFR 1240.9.

The Third Circuit lists a large number of cases where there have been problems with indiscernible portions of the transcript. The Third Circuit calls this case yet another occasion of the government breaching its duty to provide a complete and accurate transcript. In this case, there were more than 130 indiscernible notations. Even the parts the Third Circuit could decipher suggest the BIA made a mistake -- it seems like the expert did have the necessary knowledge about how criminal deportees were being treated by the country in question.

There are so many cases about bad transcripts, it raises questions about whether the government is treating individuals in immigration court fairly.