Ramirez-Alejandre v. Ashcroft

• Citation: 319 F.3d 365
• Decision Date: 09 January 2002
• Docket Number: No. 00-70724.,00-70724.
• Parties: Ramon RAMIREZ-ALEJANDRE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

319 F.3d 365

Ramon RAMIREZ-ALEJANDRE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 00-70724.

United States Court of Appeals, Ninth Circuit.

Submitted November 7, 2001.

Filed January 9, 2002.

Argued and Submitted June 20, 2002.

Filed February 13, 2003.

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Jonathan M. Kaufman, Kaufman Law Office, San Francisco, CA, for the petitioner.

Michael T. Dougherty (briefed) and David Kline (argued), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

Before SCHROEDER, Chief Judge, O'SCANNLAIN, TROTT, TASHIMA, THOMAS, W. FLETCHER, GOULD, PAEZ, BERZON, TALLMAN and RAWLINSON, Circuit Judges.

Opinion by Judge Thomas; Dissent by Judge Trott.

OPINION

THOMAS, Circuit Judge.

In the book Bang the Drum Slowly, members of the fictional New York Mammoths amused themselves by drawing in dupes with a card scam known as "Tegwar," which was an acronym for "The Exciting Game Without Any Rules." Mark Harris, BANG THE DRUM SLOWLY 8 (Alfred A. Knopf, Inc.1956). The mark, lured into the game by the players' enthusiasm, would be given a handful of cards and encouraged to make wild bids using a weird vocabulary of calls that changed from round to round. Id. at 48, 60-64. The poor cluck would always lose but would be reassured of the game's legitimacy by the veneer of rationality that appeared to overlie the seemingly sophisticated game.

For years, the Board of Immigration Appeals ("BIA") played a variant of Tegwar in its procedural treatment of appeals from suspension of deportation decisions issued by immigration judges ("IJs"). Until recently, aliens who could demonstrate extreme hardship were eligible for suspension of deportation. Under the unique directives applicable to this remedy, the BIA was required to decide eligibility for suspension based, not on the facts that existed as of the time of the hearing before the IJ, but on the facts as they existed when the BIA issued its decision.

The BIA's factual determination was impeded by the extraordinary length of time between the IJ and BIA decisions, a period that sometimes lasted as long as a decade. In this case, it took the BIA eight years to decide the appeal. Naturally, life goes on while the wheels of justice turn, and inevitably developments occur that are relevant to the determination of whether an alien would suffer extreme hardship. Despite being charged with finding the facts as they existed at the time of its decision, the BIA did not establish any formal or consistent procedures during the period relevant to this case for the submission of evidence that became available after the IJ hearing.

The informal custom and practice of the BIA varied wildly, with the BIA in some cases declaring itself the ultimate fact-finder and accepting tendered evidence in various forms, and in other cases, such as this one, categorically rejecting evidence on the ground that it was a purely appellate body. The net result was a process without rules, with an administrative body that morphed without any consistency from fact-finding to pure appellate review of a fixed record.

The remedy of suspension of deportation now has been replaced by statute, and the function of the BIA has now been changed by regulation. This case presents the question of whether the now-repealed procedures to which petitioner was subjected violated his right to due process of law. Under the circumstances presented by this case, we conclude that they did and grant the petition for review.

I

Because we are concerned in this case about how things were, not how they are, some historical context is important. Until 1940, immigration law did not provide any exceptions to a deportation order. "The deportation statute unyieldingly demanded that an alien illegally in the United States be deported; no deviations were mentioned in the law." GORDON, MAILMAN & YALE-LOEHR, IMMIGRATION LAW and PROCEDURE § 74.011, 74-4.1 (Rev. ed.2002) (hereinafter referenced as "Gordon, Mailman" unless the citation is to other editions of the treatise). The sole mechanism at that time for a deportable alien to remain in the United States was a private bill passed by Congress pursuant to Art. I, § 7, of the Constitution. INS v. Chadha, 462 U.S. 919, 933, 103 S.Ct. 2764 (1983). Confronted with a large number of compassionate cases presented by aliens who had "established deep roots in our soil," Congress passed the Alien Registration Act of 1940, which granted the Attorney General the authority to suspend deportation in certain cases, subject to a Congressional override. Gordon, Mailman § 74.072a, 74-68. The statute was amended in 1948 "to broaden the categories of aliens eligible for suspension of deportation." Chadha, 462 U.S. at 933, 103 S.Ct. 2764. The 1948 amendments also repealed the Congressional override provisions and restricted the Attorney General from canceling a deportation unless both houses of Congress voted to approve the action. Chadha, 462 U.S. at 933, 103 S.Ct. 2764.

The Immigration and Naturalization Act of 1952 permitted one house of Congress to veto the Attorney General's suspension of deportation. Id. at 934, 103 S.Ct. 2764. This procedure was stricken as an unconstitutional violation of the separation of powers, first by our Court, Chadha v. INS, 634 F.2d 408 (9th Cir.1980), and then by the Supreme Court, Chadha, 462 U.S. at 959, 103 S.Ct. 2764. Thereafter, the power to suspend deportation was vested solely in the Attorney General, and suspension of deportation became an exclusively administrative process. Gordon, Mailman § 74.072e, 74-71. The Attorney General delegated the authority to suspend deportation to both the BIA and to IJs. Under the procedure applicable during the relevant period, "the final approval of a suspension application by an immigration judge or the Board of Immigration Appealswould result in the prompt grant of lawful permanent residence." Id. at § 74.077(c), 74-129.

To receive a suspension of deportation, an alien was required to make a formal application. The administrative determination for suspension of deportation involved two steps: (1) a determination of whether the statutory conditions had been satisfied, which generally involved a question of law, and (2) a determination of whether ultimate relief would be granted to those eligible, which involved the exercise of discretion. Id.

As to the former, Congress always has provided specific statutory prerequisites for eligibility for suspension of deportation. During the time period applicable to this case, an alien would be eligible for suspension if (1) the applicant had been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of the application for suspension of deportation; (2) the applicant was a person of good moral character; and (3) deportation would result in extreme hardship to the alien or to an immediate family member who was a United States citizen or a lawful permanent resident. 8 U.S.C. § 1254(a)(1) (repealed).

An application for suspension of deportation first would be considered by an IJ, who would decide whether to grant relief. The rules of evidence are not applicable to immigration hearings. Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir.1997) (citing Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983)). Thus, for example, hearsay testimony may be considered. Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir.1992). However, the proceeding must be conducted "in accord with due process standards of fundamental fairness." Id.

Under procedures applicable during the relevant period, if the IJ found statutory eligibility and elected to grant relief, the case would then be referred to the INS district office, who would decide whether to appeal the IJ's decision to the BIA. If the IJ denied the application, the alien had the right to appeal the denial to the BIA. Gordon, Mailman § 74.077c, 74-130.

Under procedures applicable at the time, the BIA was required to reach its decision as to whether to grant the application for suspension of deportation based on the facts existing at the time it decided the appeal from the order issued by the IJ. Chookhae v. INS, 756 F.2d 1350, 1352 (9th Cir.1985). This factual examination was required because, as we have noted, both the BIA and the IJ had been delegated the authority to grant suspension of deportation. Thus, as we noted in Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir.1981), the BIA's "discretion can be properly exercised only if the circumstances are actually considered." We consistently have adhered to this view. See, e.g., Gonzales-Batoon v. INS, 767 F.2d 1302, 1303 (9th Cir.1985) (reversing and remanding BIA denial of suspension for its failure to evaluate applicant's medical condition after the Ninth Circuit expressly had instructed BIA to consider such factor when making its decision); Figueroa-Rincon v. INS, 758 F.2d 1345, 1345, superseded by 770 F.2d 766, 767-68 (9th Cir.1985) (reversing and remanding for BIA's failure to follow the court's instructions to consider the "emotional and psychological hardship complicated by age" because the BIA failed to consider the present circumstances in the applicant's life).

Our Circuit is not alone. For over twenty years, federal courts have directed the BIA to consider newly emerged facts before adjudicating a suspension application. For example, in Opoka v. INS, 94 F.3d 392 (7th Cir.1996), the Seventh Circuit vacated a BIA denial of suspension and remanded it with instructions for the BIA to consider the newly conferred legal status on the applicant's wife and children when evaluating the applicant's suspension claim. The wife's status was legalized after the original suspension application and the Seventh Circuit reasoned that if the husband's application were considered "without recognizing the status of his wife the...