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

Nos. 03-3868 & 04-3138
MARIBEL RODRIGUEZ GALICIA,
                                                       Petitioner,
                                v.

ALBERTO R. GONZALES,1
United States Attorney General,
                                                      Respondent.
                         ____________
                  Petitions for Review of Orders of
                 the Board of Immigration Appeals.
                          No. A76-543-342
                         ____________
       ARGUED MAY 12, 2005—DECIDED SEPTEMBER 2, 2005
                         ____________


    Before RIPPLE, ROVNER and SYKES, Circuit Judges.

  RIPPLE, Circuit Judge. The Immigration and Naturalization
Service (“INS”) brought removal proceedings against
Maribel Rodriguez Galicia. Ms. Rodriguez applied for
asylum and withholding of removal and an Immigration


1
  Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
we have substituted the current Attorney General of the
United States, Alberto R. Gonzales, for his predecessor as the
named respondent.
2                                    Nos. 03-3868 & 04-3138

Judge (“IJ”) denied her application and the Board of
Immigration Appeals (“BIA” or “Board”) affirmed. She
timely petitioned for review to this court and filed a motion
to reopen with the BIA. The BIA denied her motion to
reopen and she separately petitioned for review of this
denial. For the reasons set forth in the following opinion, we
grant her first petition, vacate the decision of the IJ and
remand for further proceedings.



                              I

                     BACKGROUND

A. Facts

  Ms. Rodriguez was born in a rural Guatemalan town
and later moved to Guatemala City, where she met and
married her husband, university student Armando Flores.
At the time, the nation was engulfed in a long-running
civil war and, according to Ms. Rodriguez, Mr. Flores
became sympathetic with one guerrilla group, the Unidad
Revolucionaria Nacional Guatemalteca (“URNG”). She
claims that Mr. Flores actively supported URNG in sev-
eral ways: he used a car registered in her name to bring
supplies to URNG guerrillas; he attended URNG meet-
ings and distributed pamphlets for the group; and he
participated in Huelga de Delores, an annual anti-govern-
ment demonstration.

  On January 21, 1995, Mr. Flores went to register for his
university classes with a friend. The two never returned,
and Ms. Rodriguez, who was pregnant with the couple’s
second child, contacted the police. The police had no
information about Mr. Flores and told her that she could not
Nos. 03-3868 & 04-3138                                      3

file a missing person report until twenty-four hours passed.
She and her father-in-law found Mr. Flores’ body in a town
morgue outside of Guatemala City; according to Ms.
Rodriguez, his body had been found with that of his friend
in an empty lot near a military base. Both men evidently
had been tortured and then shot. A car allegedly registered
in Ms. Rodriguez’ name was found near the bodies, but she
claimed that her registration papers were missing.

   A neighbor told Ms. Rodriguez that Guatemalan secu-
rity agents had come to her home while Ms. Rodriquez
was looking for her husband. The neighbor knew that
the men were associated with the government because their
vehicle bore official license plates, which characteristically
began with a “0” and consisted of just two or three num-
bers. According to Ms. Rodriguez, Guatemalans at the time
paid close attention to license plates because they feared
government agents. Moreover, she claimed that government
agents often would intimidate the families of murdered
dissidents; this tactic, she believed, motivated the visit to
her home and the later appearance of two unknown men
driving an official vehicle at her husband’s funeral.

  Four days after Mr. Flores’ murder, Ms. Rodriguez
registered at a clinic under an assumed name and gave birth
to their son. Three individuals, again driving an official
vehicle, came to the clinic looking for “Maribel de Flores”
but were turned away by a nurse. According to
Ms. Rodriguez, a doctor advised her to leave the clinic
for her own safety. Ms. Rodriguez, together with the
newborn and a four-year-old child, moved in with her
husband’s parents, who lived in Guatemala City. Her living
arrangements ran contrary to Guatemalan custom—
generally a widow will return to the home of her own
parents—but Ms. Rodriguez claimed that it was impractical
to return to her home town and believed that the govern-
4                                     Nos. 03-3868 & 04-3138

ment would be less likely to find her if she was living with
her in-laws. Nevertheless, she asserts that government
agents found her and that she began to receive threatening
telephone calls and death threats. She claims that the threats
caused anxiety attacks that twice required hospitalization.
Eventually, she left the home of her in-laws and moved in
with an uncle who lived four hours away.

   The uncle sought visas from the United States for Ms.
Rodriguez and her children and helped her complete the
application process. Soon after, in February 1996, he
was kidnapped—by agents driving official vehicles—
and murdered after apparently being tortured. She be-
lieves that the government murdered him for sheltering her.
Ms. Rodriguez and the children left for the United States,
entering with valid tourist visas on February 26, 1996. She
returned to Guatemala in September 1997 to attend her
father’s funeral, traveling under an alias and a false pass-
port. She was detained on October 12, 1997 when she
attempted to reenter the United States. She told immigration
officials that she feared harm if she was returned
to Guatemala but falsely claimed that her children lived
in Guatemala and that she obtained her passport there. At
her credible fear interview nine days later, Ms. Rodriguez
claimed to fear returning to Guatemala because her husband
had been murdered by the government, though she did not
mention his URNG ties and stated that he was not a mem-
ber of a political party. The interviewer found that she
demonstrated a credible fear of persecution upon return and
her case was set for hearing before an IJ in Chicago, Illinois.
Nos. 03-3868 & 04-3138                                           5

B. Agency Proceedings

                                1.

  Ms. Rodriguez applied for asylum and alternatively
for withholding of removal. She appeared for a hearing
on her asylum request on September 28, 1998, which be-
gan more than an hour after it was scheduled.2 Ms. Rodri-
guez testified to the facts described above. She claimed that
she lied to immigration officials in her first interview
“[b]ecause at that time, I was very anguished because I
thought that the policeman was just filling out a form so
that he could return me to Guatemala, because I did not
want them to return me . . . under my true name, because I
feared that when I returned there I would be persecuted.”
A.R.1410.3 She further stated that she did not understand
the United States’ asylum process; the concept of asylum is
foreign to Guatemala. She attributed her denial of her
husband’s political activities to confusion about whether the
URNG was a political party—confusion that remained after
the IJ questioned her on the point.

  Ms. Rodriguez sought to introduce the testimony of two
experts in human rights and Latin America, Professors
Daniel Rothenberg and Douglas Cassel; in addition, prior to
the hearing Ms. Rodriguez entered an affidavit from
Professor Rothenberg, but not from Professor Cassel, into



2
 The record contains no suggestion that the delay in starting
was in any way attributable to Ms. Rodriguez.
3
  For reasons that shall become clear, there are two copies of
the administrative record before this court. For ease of reference,
we refer only to the record in No. 04-3138, filed on October 28,
2004.
6                                      Nos. 03-3868 & 04-3138

evidence. Professor Rothenberg was unavailable to testify in
person at the hearing, and Ms. Rodriguez had moved
to present his testimony by telephone. The IJ denied
her motion at the start of the hearing, stating simply, “No,
I’m not going to hear any telephonic testimony, all right?
We’re going to start with the respondent now.” A.R.1343.
The IJ held Ms. Rodriguez to a strict time limit in presenting
her evidence. As her direct examination neared its conclu-
sion, the IJ asked her counsel:

    Q: Anything further of this witness, counsel? You do
    have a time limit, unfortunately, and if you wish the
    Government to cross-examine, and you have a wit-
    ness to present, I would suggest that you wrap it up.

    A: Certainly, if I may just ask a few more questions.

    Q: You may take as much time as you wish, but there’s
    going to be a time that I’m going to pass the witness. If I
    have no time for your expert, that will be it. All right. I
    will not reset the case today. All right. So, you have a
    certain amount of time that you can present your case.

A.R.1395-96.

  Ms. Rodriguez testified for approximately one hour. True
to his prediction, the IJ commented that “time has evapo-
rated” and refused to allow Professor Cassel’s testimony,
instead instructing Ms. Rodriguez to “make an offer
of proof as to [her] expert witness if he were to testify . . . to
preserve it for the record.” A.R.1423. Ms. Rodriguez made
an offer of proof for both Professors Rothenberg and Cassel.
According to Ms. Rodriguez, Professor Rothenberg would
testify that Mr. Flores’ killing was consistent with and could
only be the work of Guatemalan security forces, whose
tactics often included the continuing intimidation of a
Nos. 03-3868 & 04-3138                                      7

murdered dissident’s widow. Professor Cassel’s proposed
testimony mirrored Professor Rothenberg’s and also
indicated that university students like Mr. Flores were
under particular scrutiny by the security forces. Both
experts would testify that the practices that Ms. Rodriguez
claimed to fear continued despite recent changes in the
Guatemalan government.

  The IJ denied Ms. Rodriguez’ petition for asylum and
withholding of removal after first determining that Ms.
Rodriguez was not a credible witness because she failed
adequately to explain discrepancies in her accounts. For
instance, the IJ determined that Mr. Flores was not an active
URNG sympathizer; Ms. Rodriguez had denied his political
activities during the credible fear interview and the IJ found
that her testimony about his activities at the hearing was an
attempt to “‘embellish’ her story.” A.R.1307. The IJ similarly
found it suspicious that, in the same interview, Ms. Rodri-
guez had denied her husband’s participation in Huelga de
Dolores, and noted that she “lack[ed] familiarity with the
URNG, including the fact that she referred to it as the
URMG during the hearing.” A.R.1308. Moreover, the IJ
found it “deeply troubling” that Ms. Rodriguez was unable
to corroborate the “linchpin of her asylum claim,” “the
alleged fact that the car [found with Mr. Flores’ body] was
registered in her name.” 

summarized his credibil-
ity findings:

    [T]he court finds that the respondent’s testimony is
    not credible with respect to her husband’s purported
    involvement in the URNG. It does not appear that the
    respondent’s husband was involved in any manner with
    the guerrillas. Furthermore, the court finds that there is
    no credible evidence which suggests that a
    car registered in the respondent’s name was used to
8                                     Nos. 03-3868 & 04-3138

    transport supplies to the URNG. The respondent’s
    husband was not killed on account of his political
    opinion, and the respondent had not faced persecution
    because his political opinions were imputed to her. As
    the respondent’s testimony on whether the alleged
    persecution occurred . . . has been found to be incredi-
    ble, she has failed to establish her eligibility for asylum,
    and the application will accordingly be denied.

A.R.1308-09.

   The IJ then considered the merits of Ms. Rodriguez’
petition and first evaluated whether she had proven
eligibility for asylum based on past persecution. The IJ
found no evidence that Ms. Rodriguez’ husband and uncle
were killed “in order to punish” her, 

it
more likely that they were victims of crime. Moreover, the
IJ found no evidence that Ms. Rodriguez was mistreated
by government agents; indeed, the IJ doubted the iden-
tification of mysterious visitors as government agents,
noting that “[i]t seems remarkable that these people
payed [sic] such close attention to the license plate num-
bers.” A.R.1310. The IJ again found it more likely that the
visitors at Mr. Rodriguez’ funeral and at the hospital
were friends of his or policemen investigating his death, but
at any rate found it significant that they took no “hostile
action” against her. 

similarly discounted Ms.
Rodriguez’ accounts of the threatening phone calls
she received. Thus, the IJ found that Ms. Rodriguez pre-
sented insufficient evidence of past persecution.

  The IJ then rejected Ms. Rodriguez’ claim to fear future
persecution. In support of this decision, the IJ noted seven
“actions taken by the respondent suggest[ing] that her
fear of persecution is not genuine,” A.R.1311: (1) she
Nos. 03-3868 & 04-3138                                          9

gave her son the surname of his father, Flores, despite
testifying that she was afraid to use it herself; (2) she moved
in with her in-laws, in spite of Guatemalan custom and in
spite of the fact that this arrangement placed her closer to
government agents; (3) she investigated her husband’s
death independently; (4) she waited until four months after
the last threatening phone call to move from her in-laws’
house; (5) she never attempted to apply for asylum after
first entering the United States; (6) despite her alleged fear,
she returned to Guatemala for her father’s funeral; and (7)
she only applied for asylum after being detained by the INS.
Moreover, the IJ found that any subjective fear was objec-
tively unreasonable because, according to reports from the
United States Department of State, the URNG no longer was
a guerrilla group. Indeed, the IJ noted that, despite an
upsurge in criminal activity, the human rights situation in
Guatemala had improved dramatically.

  Because Ms. Rodriguez did not establish eligibility for
asylum, the IJ found that she failed to prove the more
stringent requirements to demonstrate eligibility for with-
holding of removal. The IJ thus denied her applications and
ordered her removal to Guatemala.4



                               2.

  Ms. Rodriguez appealed to the BIA, arguing, among other
things, that the IJ conducted the hearing in a manner that
violated her right to due process. The BIA affirmed the IJ,


4
  As her applications were on appeal to the BIA, Ms. Rodriguez
gave birth to her third child, a daughter, who is a citizen of the
United States.
10                                    Nos. 03-3868 & 04-3138

although it cited Matter of Burbano, 20 I. & N. Dec. 872 (BIA
1994) for the proposition that its affirmance did not “imply
agreement with all aspects of the decision.” A.R.438. The
BIA did not make a complete statement of reasons for
affirming, but purported to offer only “explanatory com-
ments” about her due process claim. 

the
BIA noted that IJs are granted broad discretion to conduct
immigration hearings. It commented that Ms. Rodriguez
failed to object to presenting an offer of proof instead of live
testimony from her witnesses, and at any rate Professor
Rothenberg’s report was included in the record. The BIA
thus found that Ms. Rodriguez received a full and fair
hearing. Ms. Rodriguez timely appealed the BIA’s decision
to this court on October 29, 2003.



                              3.

  Before we took her appeal under advisement, Ms. Rodri-
guez filed a motion to reopen her case with the BIA. She
argued that two changed circumstances warranted reopen-
ing her case. First, she had been diagnosed with a serious
kidney disorder, crescentic membranous
glomerulonephritis, which is likely to be fatal. The condition
required an organ transplant and dialysis and, she submit-
ted, removing her to Guatemala would “be tantamount to
a death sentence.” A.R.285. Second, Ms. Rodriguez noted
that she had given birth to a United States-citizen daughter,
Dianna. Ms. Rodriguez asserted that her removal and
consequent death would result in hardship to her children
and would, in effect, exile Dianna to Guatemala—where the
infant’s citizenship would place her in peril. Ms. Rodriguez
also requested that her removal be canceled pursuant to 8
U.S.C. § 1229b(b).
Nos. 03-3868 & 04-3138                                       11

  The BIA denied her motion to reopen. It held that
she failed to meet the heavy burden governing such motions
and failed to demonstrate how her illness would subject her
to persecution in Guatemala. The BIA rejected her claim of
hardship on her children as “not germane to her persecution
claim.” A.R.3. The BIA also found that she did not qualify
for cancellation of removal because she had not been
present in the United States for the requisite ten-year period.
8 U.S.C. § 1229b(b)(1)(A).

  Ms. Rodriguez separately sought review of the BIA’s
denial of her motion to reopen. Because she timely appealed
both the BIA’s original decision on the merits and the denial
of her motion to reopen, we consolidated this action with
her previous appeal.



                              II

                       DISCUSSION

A. Standard of Review

   Where, as here, the BIA adopts the rationale of the IJ,
we review the IJ’s decision. Ursachi v. INS, 

,
594 (7th Cir. 2002). Ms. Rodriguez bore the burden of
proving her eligibility for asylum. Oforji v. Ashcroft, 

, 612 (7th Cir. 2003). We review the IJ’s determination
that she failed to meet her burden under a highly deferential
standard, and will affirm if its decision is supported by
“ ‘reasonable, substantial, and probative evidence on the
record as a whole.’ ” See INS v. Elias-Zacarias, 

,
481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)); Toptchev v. INS,

, 720 (7th Cir. 2002). “We give great deference
to an IJ’s credibility determinations so long as they are
12                                       Nos. 03-3868 & 04-3138

supported by cogent reasons that bear a legitimate nexus to
the findings.” Hysi v. Gonzales, 

, 852 (7th Cir.
2005).5 We will reverse the BIA’s determinations about the
availability of corroborating evidence only if we find that a
reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.6 Despite these


5
    Congress recently altered the standards by which IJs reach
credibility determinations in asylum and withholding cases
through the REAL ID Act. See Emergency Supplemental Appro-
priations Act for Defense, the Global War on Terror, and Tsunami
Relief, Division B—REAL ID Act of 2005, Pub. L. No. 109-13, §
101(a)(3), (b), 119 Stat. 231 (codified at 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C)). These changes “take effect
on the date of the enactment of this division [May 11, 2005] and .
. . apply to applications for asylum, withholding, or other relief
from removal made on or after such date.” REAL ID Act §
101(h)(2). The portions of the REAL ID Act affecting credi-
bility determinations thus do not apply to determinations
made in the course of Ms. Rodriguez’ 1998 petition. See, e.g.,
Dhima v. Gonzales, ___ F.3d ___, 

, at *5 n.3 (1st
Cir. 2005).
6
   The REAL ID Act also modified the standards by which this
court reviews an IJ’s determination concerning the availabil-
ity of corroborating evidence. REAL ID Act § 101(e) (codified at 8
U.S.C. § 1252(b)(4)). Specifically, the Act provides that “[n]o court
shall reverse a determination made by a trier of fact with respect
to the availability of corroborating evidence . . . unless the court
finds . . . that a reasonable trier of fact is compelled to conclude
that such corroborating evidence is unavailable.” 

ID Act provisions concerning credibility determinations, section
101(e) applies “to all cases in which the final administrative
removal order is or was issued before, on, or after [May 11,
2005],” and thus applies to Ms. Rodriguez’ claim. 

                                                       (continued...)
Nos. 03-3868 & 04-3138                                             13

deferen-tial standards, the question of whether an asylum
hearing comported with the requirements of due process is
purely a legal one which we review de novo. Kerciku v.
INS, 

, 917 (7th Cir. 2003).

  Motions to reopen, like motions for a new trial, are
strongly disfavored, and we review deferentially the
BIA’s decision to deny Ms. Rodriguez’ motion. Selimi v.
Ashcroft, 

, 739 (7th Cir. 2004) (citing INS v.
Doherty, 

(1992)).



B. Application for Asylum and Withholding

  Ms. Rodriguez claims that the IJ conducted her asylum
hearing in a manner that violated her right to due pro-
cess. The IJ’s decision to deny her application was based
largely on findings that she was not a credible witness
and that she failed to provide corroboration for her account.
We therefore first consider the IJ’s findings before turning


6
  (...continued)
see Fessehaye v. Ashcroft, 

, 752-53 (7th Cir. 2005).
  The IJ’s determination that Ms. Rodriguez failed to corroborate
the “linchpin of her claim,” by not providing evidence that the
vehicle found near Mr. Flores was registered in her name,
significantly contributed to the IJ’s ultimate denial of her petition.
A.R.1308. Evidently, the IJ believed that corroborating evidence
was available but not presented. 

made no
attempt to obtain proof from Guatemala that the automobile had
been registered under her name. Similarly, although she asserted
that she had a driver’s license in Guatemala, she was unable to
corroborate that claim either.”). We review this determination
under the standard established by the REAL ID Act.
14                                    Nos. 03-3868 & 04-3138

to the merits of Ms. Rodriguez’ due process claim.



  1. Credibility Determination

  Ms. Rodriguez submits that the IJ’s adverse credibility
determination was unsupported and that the IJ improperly
and unreasonably required her to corroborate her claim that
the car found near her husband’s body was registered in her
name. Indeed, she points out that her expert witnesses, who
were barred from testifying by the IJ, could corroborate
much of her account of events in Guatemala. The Govern-
ment responds that the IJ was in a position to evaluate Ms.
Rodriguez’ credibility, and that the deference that this court
owes to the IJ counsels against disturbing the IJ’s credibility
findings.

  The IJ’s “[c]redibility determinations are accorded sub-
stantial deference, but they must be supported by specific,
cogent reasons” and “must bear a legitimate nexus to the
finding.” Ahmad v. INS, 

, 461 (7th Cir. 1999)
(internal quotation marks and citations omitted). In other
words, the IJ’s “adverse credibility finding must be based on
issues that go to the heart of the applicant’s claim. They
‘cannot be based on an irrelevant inconsistency.’ ” Sylla v.
INS, 

, 926 (6th Cir. 2004) (quoting Daneshvar v.
Ashcroft, 

, 619 n.2 (6th Cir. 2004)). “[W]e will not
automatically yield to the IJ’s conclusions when they are
drawn from insufficient or incomplete evidence.” Georgis v.
Ashcroft, 

, 968 (7th Cir. 2003).

  In Ms. Rodriguez’ case, the IJ largely based its credibil-
ity determination on inconsistencies between her credible
fear interview and her testimony at the hearing. The IJ
recognized that most of the inconsistencies—that she gave
Nos. 03-3868 & 04-3138                                             15

a false name to immigration officials, lied about the location
of her children and about how she obtained a
false passport—were irrelevant and did not go to the
heart of her claim.7 Nor is there any basis for the IJ’s fur-
ther comment that her false statements were a “demon-
stration that the respondent is willing to lie in order to avoid
the consequences of her actions,” id.; Ms. Rodriguez testified
that she feared the information would be provided to
Guatemalan authorities and, importantly, the IJ did not find
this testimony incredible. Indeed, testimony that an appli-
cant gave false information to immigration authorities for
fear of deportation to a persecuting country can be entirely
consistent with a fear of persecution. See Turcios v. INS, 

, 1400-01 (9th Cir. 1987); see also Yongo v. INS, 

, 33 (1st Cir. 2004); Balasubramanrim v. INS, 

, 164 (3d Cir. 1998); In re O-D-, 21 I. & N. Dec. 1079, 1082
(BIA 1998). Another inconsistency relied upon by the
IJ—Ms. Rodriguez’ perceived lack of familiarity with the
URNG—also was irrelevant to the question at hand:
whether Mr. Flores was involved with the URNG and
whether his political opinion was imputed to Ms. Rodri-
guez.

  The sole remaining basis for the IJ’s credibility determina-
tion, then, was described as the “linchpin” of Ms. Rodri-
guez’ claim: her failure to corroborate the fact that the car
found next to Mr. Flores’ body was registered in her name.
The IJ’s reliance on a lack of corroboration also fails because
the car registration was irrelevant to the issues Ms. Rodri-


7
  The IJ commented that “[t]hese statements, though they do not
undercut the central elements of her asylum claim in themselves[,] are
a further demonstration that the respondent is willing to lie.”
A.R.1308 (emphasis added).
16                                    Nos. 03-3868 & 04-3138

guez presented. Ms. Rodriguez never claimed that Guate-
malan security forces intimidated her because she was the
car’s registered owner; rather, she claimed that they intimi-
dated her because she was the wife of a murdered dissident.
The vehicle registration would have provided little by way
of corroboration. Of much greater import was the proposed
testimony of her expert witnesses, whom she claimed would
have testified that the Guatemalan agents were suspicious
of and scrutinized the activities of university students like
Mr. Flores. Moreover, the experts might have corroborated
her account by demonstrating that the alleged activities of
the unknown individuals were consistent with the manner
in which the government intimidated spouses of slain
opposition figures.8

  The IJ relied upon irrelevant inconsistencies in reaching an
adverse credibility finding. The IJ’s credibility determina-
tion thus was unsupported by substantial evidence. Indeed,
the irrelevant vehicle registration became the “linchpin” of
Ms. Rodriguez’ case only because the IJ prevented her
experts from testifying. We turn now to consider this
exclusion in evaluating Ms. Rodriguez’ due process claim.




8
  Even assuming that the car registration was critical to Ms.
Rodriguez’ claim, any assertion that she was targeted because of
the registration relied upon its absence from her car, and the
resulting inference that it was absent because government agents
took it when they murdered Mr. Flores. In this circumstance, “a
reasonable trier of fact [would be] compelled to conclude
that such corroborating evidence [wa]s unavailable,” and the
IJ erred in relying on the lack of corroboration. 8 U.S.C.
§ 1252(b)(4).
Nos. 03-3868 & 04-3138                                       17

  2. Due Process

  Ms. Rodriguez asserts that the IJ conducted the asylum
hearing in a manner that violated her right to due process
by barring the testimony of Professors Rothenberg and
Cassel. Their testimony was critical to her claim, accord-
ing to Ms. Rodriguez, because their expertise would provide
both corroboration and context for the events that she
described. She further argues that the IJ, in the interest of
time, truncated her testimony and thus prevented her from
fully presenting her case. Moreover, Ms. Rodriguez con-
tends that the IJ ignored the expert evidence that
was presented—Professor Rothenberg’s affidavit—in reach-
ing a decision to deny her application.

  The Government responds that the IJ conducted the
hearing, and required corroboration, within the bounds
of its discretion and the process due. It points out that the IJ
afforded Ms. Rodriguez an opportunity to give an offer of
proof and, at any rate, had before it Professor Rothenberg’s
affidavit. As for Professor Cassel, the Government argues
that his proposed testimony was cumulative and that, if Ms.
Rodriguez “believed that further information from Mr.
Cassel might have helped her case, the solution was to
obtain an affidavit from him.” Respondent’s Br. at 35.
Indeed, the Government asserts, the experts could not have
assisted Ms. Rodriguez because they had no knowledge
about her alleged persecution.

  “[T]he Fifth Amendment entitles aliens to due process
of law in deportation proceedings.” Reno v. Flores, 

, 306 (1993). Due process requires that the applicant
be afforded “a meaningful opportunity to be heard,”
Nazarova v. INS, 

, 482 (7th Cir. 1999), and a
“reasonable opportunity to . . . present evidence on the
18                                    Nos. 03-3868 & 04-3138

alien’s behalf,” 8 U.S.C. § 1229a(b)(4)(B). “Although
what constitutes ‘a meaningful opportunity to be heard’
is far from clear, we distinguish between two types of
situations when analyzing due process challenges.” 

. In the first situation, the IJ limits some
testimony or frequently interrupts that of the applicant. The
IJ does not violate due process by focusing the hearing in
this manner to focus the proceedings and exclude relevant
evidence. 

second type of situation, by contrast,
the immigration judge violates due process by barring
complete chunks of oral testimony that would support the
applicant’s claims.” 

This categorization, while
helpful, is imprecise and the appropriate characterization of
the IJ’s action is, in essence, a matter of degree. In the end,
we must determine whether, given the totality of circum-
stances, the petitioner had a full and fair opportunity to put
on her case.

  Here, we must conclude that the actions of the IJ, when
evaluated in their totality, deprived Ms. Rodriguez of her
right to due process.

  We have reversed IJ determinations when the IJ “took
over the questioning, so that in the end the judge, rather
than the attorney, had elicited whatever testimony” the
applicant offered. Podio v. INS, 

, 510 (7th Cir.
1998); see also 

. Our review of the
hearing transcript reveals that, in Ms. Rodriguez’ case, the IJ
frequently interrupted her testimony and often allowed her
counsel to ask no more than a few questions in series.
Indeed, at times, the record may be read plausibly as
indicating a certain hostility to Ms. Rodriguez. In any event,
the frequency and length of the IJ’s interruptions raise
significant concern as to whether this questioning was
merely attempting to point Ms. Rodriguez in what the IJ
Nos. 03-3868 & 04-3138                                      19

thought was “the right direction” or to “focus the hearings
on relevant matters.” 

(internal quota-
tion marks omitted). Indeed, at times, the IJ’s questioning
clearly assumes the role of counsel for the Government. It
goes beyond clarification or simply filling in the interstices
of Ms. Rodriguez’ testimony and becomes de facto cross-
examination of the witness.

  If the IJ’s overly active role in the presentation of Ms.
Rodriguez’ testimony was our only concern, it would be
a fairly close question as to whether there had been a denial
of due process. There are, however, other concerns. More
troubling than the IJ’s questioning was the strict time limit
that the IJ imposed on Ms. Rodriguez, which in turn
prevented her from presenting the readily avail-
able testimony of Professors Rothenberg and Cassel—the
former by telephone, the latter in person. Contrary to the
Government’s apparent assertion, we have never re-
quired that an expert witness testify to the facts of the
particular applicant’s claim. Rather, Ms. Rodriguez tendered
the experts to demonstrate that portions of her account were
consistent with the practices of the Guatemalan govern-
ment, and thus to corroborate her testimony. Nothing in the
curricula vitae of Professors Rothenberg or Cassel demon-
strated that they were unqualified to offer expert evidence,
and their testimony undoubtedly would have been helpful
to the IJ in determining whether Ms. Rodriguez suffered
past persecution. See Niam v. Ashcroft, 

, 660 (7th
Cir. 2004) (noting that the “spirit” of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 

(1993), applies to immigra-
tion proceedings).

  For example, Professor Rothenberg’s testimony was
intended to demonstrate that the manners in which Ms.
Rodriguez’ husband and uncle were killed were consis-
20                                     Nos. 03-3868 & 04-3138

tent with the practices of Guatemalan security forces. It
is possible that this testimony would have alleviated the IJ’s
concern that the men were victims of crime rather than of
government persecution. Moreover, Ms. Rodriguez asserted
that his testimony would demonstrate that the visits by
mysterious agents were consistent with the state’s practice
of intimidating victims’ spouses. Such testimony may have
demonstrated that Mr. Flores’ political opinions had been
imputed to his wife. In addition, according to Ms. Rodri-
guez’ offer of proof, Professor Cassel could demonstrate that
the threat to Ms. Rodriguez in Guatemala survived the
recent change of government; this testimony, potentially,
directly addresses the IJ’s determination that Ms. Rodriguez
faced no further threat.9 Indeed, with the benefit of the
experts’ testimony, the IJ may have been able to confirm or
discount suspicions that led to the denial of her application;
for instance, perhaps the experts could indicate whether it
is “remarkable that [Guatemalans] payed [sic] such close
attention to the license plate numbers.” A.R.1310. The
opportunity for the IJ to ask questions and for the experts to
answer—an opportunity that the IJ liberally exercised with
Ms. Rodriguez—could only have been accomplished with
live testimony. Moreover, despite their potential value to
adjudicating Ms. Rodriguez’ application, the IJ’s only
explanation for not hearing Professor Cassel was the self-
imposed time constraint; the IJ offered no explanation for
excluding Professor Rothenberg’s telephonic testimony.


9
  In her offer of proof, Ms. Rodriguez indicated that Professor
Cassel could testify as to the current threat Ms. Rodriguez faced
in Guatemala. In this respect, Professor Cassel’s proposed
testimony differed from that of Professor Rothenberg. Thus,
contrary to the Government’s assertion, Professor Cassel’s
testimony was nonduplicative.
Nos. 03-3868 & 04-3138                                         21

  In short, an evaluation of the record as a whole establishes
that Ms. Rodriguez was denied her right to have
“a meaningful opportunity to be heard.” See 

. However, to establish a due process viola-
tion, we also require a petitioner to demonstrate that she
was prejudiced by the IJ’s actions. See 

such prejudice in this case. The proposed expert testimony
went to the heart of Ms. Rodriguez’ claims of past persecu-
tion and fear of future persecution. In addition, if the
testimony presented by Professors Rothenberg and Cassel
had corroborated Ms. Rodriguez’ account, the IJ might have
reached a different conclusion as to her credibility. The
testimony that Ms. Rodriguez sought to introduce “had the
potential for affecting the outcome of” the proceedings, and
she has established a due process violation. 

(internal quotation marks omitted). The IJ thus
reached a decision based upon an erroneous credibility
determination and without the evidence necessary to
evaluate Ms. Rodriguez’ application. In such circumstances,
we generally require “a new hearing in compliance with
due process,” and we therefore remand to give Ms. Rodri-
guez an opportunity to fully and fairly present her case.
Batanic v. INS, 

, 667 (7th Cir. 1993).10




10
  Because we remand for a hearing that comports with due
process, we need not address Ms. Rodriguez’ motion to reopen or
the merits of her asylum claim. On rehearing, Ms. Rodriguez and
the Government will have the opportunity to submit argument
and evidence concerning the claims of poor health and hardship
contained in her motion to reopen. See Uwase v. Ashcroft, 

, 1045 (7th Cir. 2003).
22                                Nos. 03-3868 & 04-3138

                     Conclusion

  For the foregoing reasons, we grant the petition for
review, vacate the IJ’s decision and remand to the BIA
for further proceedings consistent with this opinion.

                        PETITION FOR REVIEW GRANTED;
                              REVERSED and REMANDED
Nos. 03-3868 & 04-3138                                    23

A true Copy:
       Teste:

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




                  USCA-02-C-0072—9-2-05