Unpublished Disposition, 911 F.2d 738 (9th Cir. 1990)

MEMORANDUM^** 

Deborah L. Manantan, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals' (BIA) order affirming the immigration judge's (IJ) finding that Manantan is deportable. Manantan contends that she was denied a fair hearing and that the INS improperly denied a prior visa petition filed on her behalf. We have jurisdiction to consider the deportation order pursuant to 8 U.S.C. § 1105a(a).

Section 242(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252(b), requires that deportation hearings be conducted with the hearing participants in the physical presence of the IJ. See Purba v. INS, 884 F.2d 516, 517 (9th Cir. 1989). Telephonic hearings do not conform to the "plain meaning of section 242(b)." Id. Therefore, the IJ denied Manantan a fair hearing by conducting the hearing telephonically instead of in Manantan's physical presence.

The INS contends, however, that a telephonic hearing was appropriate in the instant case because the facts underlying the charge of deportability were not disputed. The testimony which Manantan would have presented pertained only to the adjudication of a prior visa petition. This court rejected a similar argument in Purba in favor of a bright-line approach which prohibits telephonic hearings in all deportation cases absent consent of the parties. Id. at 518. As in Purba, we refuse to engage in a case-specific determination to determine whether credibility was an issue before the IJ. See id. at 517-18. Regardless of the nature of the issues in the deportation hearing, the IJ erred by refusing to provide Manantan an adequate hearing. Accordingly, we reverse the BIA's decision and remand to the IJ for further proceedings consistent with this memorandum.

Because we are remanding this case for rehearing, we need not address Manantan's contention that the INS improperly denied her visa application.

PETITION FOR REVIEW GRANTED,

REVERSED and REMANDED.