Agyeman v. I.N.S.

• Citation: 296 F.3d 871
• Decision Date: 23 July 2002
• Docket Number: No. 99-70396.,99-70396.
• Parties: Emmanuel Senyo AGYEMAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

296 F.3d 871

Emmanuel Senyo AGYEMAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 99-70396.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 16, 2001.

Filed July 23, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Christopher B. Durbin (argued), Kristen Kay Mitchell (argued), Eric Schnapper, Amy Edwards, Seattle, Washington (University of Washington School of Law (Students

of Pro Bono Program)); Leonard J. Feldman, Heller, Ehrman, White & McAuliffe, Seattle, Washington; Daniel M. Kowalski, Ryan, Swanson & Cleveland, Seattle, WA, for the petitioner-appellant.

John S. Hogan (argued) and John M. McAdams, Jr., U.S. Department of Justice, Washington, DC, for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before FERGUSON, KLEINFELD, and GOULD, Circuit Judges.

Opinion by Judge FERGUSON; Dissent by Judge KLEINFELD.

OPINION

FERGUSON, Circuit Judge.

Emmanuel Senyo Agyeman ("Agyeman"), a native and citizen of Ghana, petitions for review of the Board of Immigration Appeals' ("BIA") decision, affirming the Immigration Judge's ("IJ") denial of his request for suspension of deportation pursuant to Section 244(a)(1) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1254(a)(1) (repealed 1996) ("Section 244"), and adjustment of status pursuant to Section 245 of the INA, 8 U.S.C. § 1255 ("Section 245"). Agyeman claims that he was denied a full and fair hearing because he was not given adequate instructions as to how to proceed with his applications for relief. Specifically, he alleges, among other errors, that the denial of adjustment of status was predicated on his inability to procure his wife's attendance at the deportation hearing to testify on his behalf. Given that his wife suffers from bipolar disorder and resides thousands of miles from the site of the proceedings, we agree. Accordingly, we grant the petition and now remand for a new hearing. In addition, we hold that the filing fees provisions of the Prison Litigation Reform Act ("PLRA") do not apply to INS detainees.

I. BACKGROUND

Agyeman entered the United States on a B-1 visitor visa in 1988. In 1991, he married a United States citizen, Barbara Levy ("Levy"), and the couple established a home together in Elizabeth, New Jersey. Levy subsequently filed an Form I-130 immediate relative visa petition, which was approved in 1992. However, Agyeman's application for adjustment of status was denied because the couple failed to attend the scheduled interview and submit Agyeman's medical examination. As reflected in the record, Levy was unable to attend the interview because she was hospitalized for bipolar disorder at the time.

In 1993, Agyeman relocated to Carson City, Nevada, for business purposes, and resided there until being detained by the INS for overstaying his visa in early 1997. INS officials transported Agyeman to a detention facility in Eloy, Arizona, where he remained during the course of the proceedings.

On July 28, 1997, the IJ found Agyeman deportable under Section 241(a)(1)(B) of the INA, 8 U.S.C. § 1231(a)(1)(B), and denied his request for suspension of deportation under Section 244. Reviewing Agyeman's application for adjustment of status based on his marriage to a United States citizen pursuant to Section 216 of the INA, 8 U.S.C. § 1186a ("Section 216"), the IJ instructed Agyeman that his wife's testimony was mandatory to determine the bona fides of their marriage. Upon questioning about his wife, Agyeman informed the IJ that Levy suffered from bipolar disorder and had been hospitalized for two or three months at a time. The IJ asked whether Levy was still hospitalized, to which Agyeman responded: "I don't know." At the close of the hearing, the IJ stated that "you need to contact and have available at the next hearing, your spouse. She must be physically present at that hearing, otherwise, I can't grant your application for adjustment of status." (emphasis added). The IJ granted a continuance for Agyeman to procure her attendance. On November 5, the IJ denied Agyeman's application for adjustment of status because Levy did not appear and testify on his behalf and because his medical examination was not on file. The IJ granted his application for voluntary departure to Ghana pursuant to Section 244(e) of the INA, 8 U.S.C. § 1254(e).

On appeal, the BIA affirmed in all respects. It denied Agyeman's application for an adjustment of status pursuant to Section 245 on the basis that he had failed to establish the validity of his marriage to Levy, affirming the IJ's rationale that she failed to testify at the deportation hearing.¹ It also refused to grant the application on discretionary grounds. As to the denial of suspension for deportation, the BIA affirmed on the basis that Agyeman had failed to demonstrate an "extreme hardship" to himself or to his wife.

This timely petition for review followed. We granted Agyeman's request for leave to proceed in forma pauperis and instructed the parties to brief the issue whether the PLRA filing fee provisions apply to INS detainees.

II. JURISDICTION

This petition is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We have jurisdiction to hear Agyeman's due process claims pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA section 309(c)(4). Antonio-Cruz v. INS, 147 F.3d 1129, 1130 (9th Cir.1998).

III. STANDARD OF REVIEW

We review claims of due process violations in deportation proceedings de novo. Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). We also review de novo legal interpretations of the INA's requirements. Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.2001) (en banc). Because our standard of review is de novo, we conduct an independent examination of the entire record. Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000). When the BIA reviews the IJ's decision de novo, our review is limited to the BIA's decision, except to the extent that the BIA adopted the IJ's opinion. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000) (citing Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995)).

IV. DISCUSSION

A. Due Process Rights in Deportation Proceedings

The Fifth Amendment guarantees individuals who are subject to deportation due process in INS proceedings. Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.2000) (citing Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999)). "An alien who faces deportation is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf." Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). In addition, aliens in deportation proceedings are entitled by statute and regulation to certain procedural protections. Barraza Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir.1990); Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). For example, an alien must be afforded a reasonable opportunity to present evidence on his behalf. INA § 240(b)(4), 8 U.S.C. § 1229a(b)(4); 8 C.F.R. § 240.10(4) (2001); see also INA § 240(b)(1); 8 U.S.C. § 1229a(b)(1) (providing that the immigration judge must receive evidence); 8 C.F.R. § 240.1(c) (2001) (same). If an alien is prejudiced by a denial of any of the applicable procedural protections, he is denied his constitutional guarantee of due process. Campos-Sanchez, 164 F.3d at 450.

One of the components of a full and fair hearing is that the IJ must adequately explain the hearing procedures to the alien, including what he must prove to establish his basis for relief. Jacinto, 208 F.3d at 728. In addition, when the alien appears pro se, it is the IJ's duty to "fully develop the record." Id. at 733-34. Because aliens appearing pro se often lack the legal knowledge to navigate their way successfully through the morass of immigration law, and because their failure to do so successfully might result in their expulsion from this country, it is critical that the IJ "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Id. at 733 (quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)).

B. Full and Fair Hearing

Agyeman claims that he was denied a full and fair hearing because, among other errors, the IJ failed to provide an adequate explanation of the procedures and thereby denied him a full and fair hearing. At his deportation hearing, the IJ ruled that Levy's testimony was the only means by which Agyeman could successfully prosecute his application for adjustment of status, despite the fact that she suffered from a bipolar disorder and lived thousands of miles away. On appeal, the BIA affirmed the IJ's denial of Agyeman's applications for relief on the basis that Agyeman had failed to establish his marriage to a United States citizen. Under the circumstances, we find that Agyeman did not receive an adequate explanation as to what he had to prove to support his application for adjustment of status and was thereby denied a full and fair hearing.

1. Exhaustion of Administrative Remedies

As a threshold matter, we find that Agyeman's due process claim was properly exhausted below. While we retain jurisdiction to review due process challenges to immigration decisions, Antonio-Cruz, 147 F.3d at 1130, we may not entertain due process claims based on correctable procedural errors unless the alien raised them below. Sanchez-Cruz, 255 F.3d at 780; Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir.2000). The exhaustion requirement applies to claims that an alien was denied a "full and fair hearing." Sanchez-Cruz, 255 F.3d at 780.

Albeit inartfully, Agyeman raised pro se his due process claims in his notice of appeal to the BIA. Although he did not use the specific phrase `due process violation,' he did protest the requirement that his wife testify at the hearing, explaining that she was in poor health and advised...