Cruz Rendon v. Holder, 06-70301.
| Decision Date | 03 May 2010 |
| Docket Number | No. 06-70301.,06-70301. |
| Citation | 603 F.3d 1104 |
| Parties | Araceli CRUZ RENDON, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Sung U. Park, Los Angeles, CA, for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division; Linda S. Wernery, Assistant Director; and Dimitri N. Rocha, Attorney, United States Department of Justice, Washington, DC, for the respondent.
Before: HARRY PREGERSON and DAVID R. THOMPSON, Circuit Judges, and JEREMY FOGEL, District Judge.**
OPINION
Petitioner Araceli Cruz Rendon ("Cruz Rendon"), a native and citizen of Mexico, seeks review of the decision of the Board of Immigration Appeals ("BIA") affirming the denial of her application for cancellation of removal by the Immigration Judge ("IJ"). Cruz Rendon claims that the "exceptional and extremely unusual hardship" requirement of 8 U.S.C. § 1229b(b)(1) violates the Equal Protection Clause of the United States Constitution, and that the IJ denied her a full and fair hearing in violation of the Due Process Clause. We have jurisdiction pursuant to 8 U.S.C. § 1252. We agree that the IJ denied Cruz Rendon a full and fair hearing and that this prejudiced Cruz Rendon's ability to present evidence in support of her application for cancellation of removal. Accordingly, we grant the petition for review and remand to the BIA with instructions to order a new hearing before the IJ.
Cruz Rendon entered the United States illegally at some time after January 1, 1990. In 2004, the government initiated removal proceedings against her. Cruz Rendon appeared before IJ Anna Ho on November 15, 2004 and requested a continuance so that she could retain counsel; the IJ granted a one-month continuance until December 16, 2004. On that date, Cruz Rendon appeared with counsel, conceded removability, and requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)1 or, in the alternative, voluntary departure. The IJ continued the matter one additional month for a merits hearing, which was conducted as scheduled on January 14, 2005. At the start of the hearing, the IJ indicated that Cruz Rendon had satisfied the first three requirements of § 1229b(b)(1), and that the application turned on the fourth requirement, that is, whether Cruz Rendon's removal "would result in exceptional and extremely unusual hardship" to her four-year-old United States citizen child, Jose.
Cruz Rendon presented a written psychological evaluation of Jose that had been prepared approximately one week before the merits hearing. The report noted that Jose was born in the United States, was bilingual, and attended a public preschool, and that Cruz Rendon supported herself and Jose by ironing for a clothing manufacturer. The report stated that Jose displayed symptoms of Attention Deficit/Hyperactivity Disorder ("ADHD"), and that children with ADHD do not respond well to changes in environment or in caretakers. The report also indicated that Jose might have learning and speech disabilities. The report concluded that separation from his mother or relocation to Mexico would create emotional distress for Jose and would worsen his problems. The report recommended that Jose be given a "thorough psychoeducational assessment" to determine his needs.
The IJ orally summarized the written evaluation as follows: The IJ then stated that "the mere fact that a child may have attention deficit, and even if he did have attention deficit, does not mean that he cannot have proper treatment in Mexico." The IJ indicated that Cruz Rendon had not presented evidence as to lack of opportunity for treatment in Mexico, and then stated, "besides, the child is only 4-years-old." The IJ directed Cruz Rendon's counsel to present evidence of exceptional and extremely unusual hardship to Jose, but limited such evidence to matters not addressed in the psychological evaluation.
Cruz Rendon began her substantive testimony by discussing her concerns that Jose was hyperactive, had difficulty learning, and had problems speaking. The IJ cut off Cruz Rendon's testimony, stating that the psychologist had addressed these issues in the written report. When counsel later tried to revisit Cruz Rendon's concerns, the IJ stated that "I believe the psychologist's evaluation is much better than what this lady has to tell me." The IJ also interrupted counsel when he attempted to ask Cruz Rendon where she was employed, stating that Cruz Rendon's employment history was covered in the report.
Cruz Rendon testified that she feared Jose would suffer if he had to go to school in Mexico, because based upon her own childhood experience she believed that children often are mistreated and beaten in Mexican schools. The IJ inquired whether counsel had other evidence regarding Mexican schools. When counsel responded that he had not had time to obtain such evidence, the IJ stated that "your case has been pending and there's no reason why you could not go on the internet to print some information about schools in Mexico."
Counsel then asked Cruz Rendon about her ability to provide for Jose if they were to relocate to Mexico. Cruz Rendon testified that it would be difficult to manage, because her only family member in Mexico was her mother, who was elderly and lacked the patience to care for Jose. Cruz Rendon testified that Jose's father left when Jose was born and did not contribute to Jose's support. She stated that she would not be able to buy Jose sufficient food and clothing in Mexico, because she likely would earn less than five or ten dollars a day there. The IJ cut off that line of questioning because Cruz Rendon had not actually looked for a job in Mexico.
Counsel made a final attempt to ask Cruz Rendon about her fears for Jose if they relocated to Mexico, at which point the IJ stated Counsel then concluded his examination of Cruz Rendon.
At the close of the hearing, the IJ stated that Cruz Rendon's application for cancellation of removal would be denied. Cruz Rendon's counsel requested leave to give a brief closing before the IJ completed her oral ruling; the IJ denied that request. The IJ then stated as follows:
I have reviewed the detailed analysis by the psychologist. The child is, as I said, only 4-years-old. There is no definite indication as to exactly what the problem the child has. There is no evidence presented by the psychologist that whatever the hyperactivity this child had, the child is not going to grow out of it as the child grows older. I don't know. There is no evidence presented that there is no such assistance in Mexico, so I can't grant this case. There is no, you have not met your burden of exceptional and extremely unusual hardship.
Cruz Rendon's counsel pointed out that less than one month had elapsed between Cruz Rendon's first appearance with counsel on December 16, 2004 and her merits hearing on January 14, 2005. The IJ stated that "givingCruz Rendon another 3 to 6 months is not going to help in this case." When counsel persisted in asserting that Cruz Rendon had not had an adequate opportunity to present her case, and noted that Jose's school had recommended that Jose be evaluated further, the IJ responded as follows:
That's fine. But, there's no evidence presented by you that no such assistance is available in Mexico. In fact, I have read many articles that they have special education in Mexico. And, Mexico is really trying very hard to work on this. So, unless you give me evidence, she has not met her burden. All right?
The IJ then granted Cruz Rendon voluntary departure.
On January 14, 2005, the same date that the merits hearing was conducted, the IJ issued a written order denying Cruz Rendon's application for cancellation of removal.
Cruz Rendon appealed the IJ's decision to the BIA, asserting inter alia that the IJ's limitation of her testimony and denial of her request for an additional continuance deprived her of the opportunity to present her case. On January 10, 2006, the BIA issued a written decision adopting and affirming the IJ's decision, citing Matter of Burbano, 20 I. & N. Dec. 872, 874, 1994 WL 520994 (BIA 1994). The BIA found expressly that Cruz Rendon received a full and fair hearing and that the IJ had not erred in denying her request for a continuance.
When the BIA adopts and affirms the IJ's decision with a citation to Burbano, and does not disagree with any part of the IJ's decision, we review the IJ's decision as if it were the decision of the BIA. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.2009); Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc). When the BIA adds its own reasoning, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005).
We review for abuse of discretion an IJ's denial of a continuance. Ahmed, 569 F.3d at 1012. We review de novo claims of equal protection and due process violations in removal proceedings. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008).
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