Delgado-Ramos v. Holder
| Decision Date | 08 May 2013 |
| Docket Number | No. 12-3615,12-3615 |
| Parties | ALBERTO DELGADO-RAMOS. Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Chicago, Illinois 60604
Before
Alberto Delgado-Ramos, a Mexican citizen, applied for cancellation of removal, which an immigration judge denied after refusing Delgado-Ramos's third request for a continuance. The Board of Immigration Appeals upheld the denial of relief, and Delgado-Ramos petitions for review. Delgado-Ramos seeks to characterize his removal proceedings as constitutionally and statutorily deficient. For the reasons that follow, we deny the petition in part and dismiss it in part for lack of jurisdiction.
Delgado-Ramos was brought illegally into the United States by his parents when he was 6 years old. He is now 28 and married to a U.S. citizen, Cathy Delgado, who is themother of his 6-year-old U.S.-citizen daughter and his 16-year-old U.S-citizen step-daughter.
In January 2009, a few days after Delgado-Ramos was arrested for possession of cocaine, the Department of Homeland Security served him with a notice to appear charging that he was never admitted or paroled into the country and thus subject to removal, see 8 U.S.C. § 1182(a)(6)(A)(I). Delgado-Ramos and his wife were living together before he was placed in removal proceedings, but they did not marry until four months later. (They wed one week after Cathy's divorce finalized.) She has since filed a Petition for Alien Relative seeking a visa on his behalf. That visa application is not relevant to the present case.
The immigration judge twice postponed the proceedings at Delgado-Ramos's request while he sought to resolve the pending drug charge. When Delgado-Ramos next appeared in June 2009, he conceded removability and said he would be applying for cancellation of removal. The IJ then scheduled the removal hearing for March 21, 2011, 21 months in the future. The IJ set a deadline of 90 days for Delgado-Ramos to file a written application for cancellation of removal, and also reminded Delgado-Ramos that he could file supporting materials until 15 days before the hearing. At all of these appearances before the IJ in 2009, Delgado-Ramos was represented by attorney Frank Vasquez.
Delgado-Ramos met with attorney Vasquez on September 16, 2009, and the next day the lawyer filed the written application for cancellation of removal. In mid-February 2011, five weeks before the scheduled removal hearing, Vasquez moved to withdraw. He explained that, in the 17 months since their September 2009 meeting, his client had not returned the lawyer's phone calls (or even provided a working telephone number). Vasquez had written to Delgado-Ramos at his last known address in December 2010 and January 2011 reminding him of the impending hearing date. In those letters Vasquez recounted that he had been trying to contact Delgado-Ramos and warned that he would withdraw if Delgado-Ramos remained incommunicado since adequate representation would be impossible. Vasquez also said in his motion to withdraw that 10 days earlier he had finally received a phone call from Delgado-Ramos's wife, who scheduled an appointment for the couple to meet with the lawyer. But neither of them showed up, and thus the lawyer had filed this motion to withdraw as he warned Delgado-Ramos's wife he would do.
Delgado-Ramos did appear for the removal hearing but made no effort to explain his failure to communicate with attorney Vasquez. And neither did the IJ ask for an explanation or invite Delgado-Ramos to respond to counsel's statement that the petitioner was in the process of seeking a different lawyer. The IJ refused to let Vasquez withdraw,reasoning that his client's failure to communicate was not an acceptable excuse for the lawyer to be excused from the case because, with today's technology, "the only way you cannot get in communication is if you choose not to be in communication." The IJ also characterized the lawyer's motion as untimely (apparently on the premise that Vasquez should have moved to withdraw sooner). Moreover, the IJ said, nothing had prevented Delgado-Ramos from retaining a different lawyer before the hearing, so he was not being deprived of his choice of counsel. And granting counsel's motion, the IJ added, effectively would mean granting a lengthy continuance, which the judge was unwilling to do.
Attorney Vasquez then moved for "a very short continuance" so that he could obtain "additional documents" from Delgado-Ramos to support his application for cancellation of removal. Vasquez specifically mentioned income tax returns and "school records" but, when pressed by the IJ, identified no others. The IJ denied this request with the explanation that Delgado-Ramos had not established good cause. The IJ reasoned that, in the months since Delgado-Ramos's last appearance in June 2009, he could have gathered and submitted any relevant information in support of his application.
Delgado-Ramos and his wife testified that she and their children will suffer exceptional and extremely unusual hardship if he is removed to Mexico. Delgado-Ramos is the primary wage earner, earning $750 per week, and Cathy earns $450 per week. His wife called him the "backbone" of their family and exclaimed that, without him, "our family would be completely destroyed." She explained that he had stepped in as a father figure and role model for her eldest daughter after the girl's natural father abandoned that role. Delgado-Ramos and his step-daughter have a great relationship, Cathy continued, and she would suffer emotionally without him. Cathy insisted, however, that she would not move their daughters to Mexico because living in such an unfamiliar environment would be too stressful for them. She added that her own health problems preclude her from moving to Mexico: She began experiencing anxiety around the time the removal proceedings began, and her doctors are testing her for fibromyalgia because she has persistent joint pain.
In denying Delgado-Ramos's request for cancellation of removal, the IJ found that the petitioner was of good moral character and had been continuously present in the United States. But Delgado-Ramos was not eligible for discretionary relief, the IJ reasoned, because he had not established that his U.S.-citizen wife and children will suffer exceptional and extremely unusual hardship if he is removed to Mexico, see 8 U.S.C. § 1229b(b)(1). The IJ explained that Delgado-Ramos's wife will not suffer if she moves with him to Mexico because he is capable of supporting the family in Mexico and her anxiety—seemingly brought on by the removal proceedings and, in the IJ's view,ephemeral1 —is not sufficiently serious to prevent her from living there. And, the IJ continued, Cathy will not suffer if she remains in the United States because she is not financially dependant on her husband and the separation "would be of her own choosing." Moreover, the IJ noted, she knew at the time she married Delgado-Ramos that he was in removal proceedings. The daughters too, the IJ said, were both in good mental and physical health and would be capable of adjusting to life and schooling in Mexico.
Delgado-Ramos, through new counsel, appealed to the Board. He argued that the IJ had denied him due process by refusing to let his lawyer withdraw and not granting a continuance so that he could prepare adequately for the removal hearing. (Delgado-Ramos did not specify what he would have done if given more time.) He also contended that the IJ's insistence that attorney Vasquez remain on the case violated his statutory right to have the lawyer of his choosing, see 8 U.S.C. § 1362. Moreover, Delgado-Ramos argued, the IJ had ignored the requirement that hardship factors be considered in the aggregate. Instead, Delgado-Ramos asserted, the IJ had given too much weight to his wife's decision to marry him knowing that he faced removal and too little weight to her medical conditions and the emotional devastation his departure would bring upon his children.
The Board upheld the denial of cancellation of removal. First, the Board concluded that forcing attorney Vasquez to remain on the case did not offend Delgado-Ramos's right to due process. Like the IJ, the Board seemed to think that granting the lawyer's motion to withdraw compelled the IJ to give Delgado-Ramos a lengthy continuance. Moving forward with the removal hearing with attorney Vasquez, the Board explained, had not caused any prejudice to Delgado-Ramos because he and his wife were able to testify about hardship to her and to their children. Moreover, Delgado-Ramos had not shown how granting the motion, i.e., giving Delgado-Ramos a continuance, would have changed the evidence presented to establish hardship. Second, the Board agreed with the IJ that Delgado-Ramos had been given more than enough time to prepare for the hearing. Finally, the Board concluded that Delgado-Ramos did not establish that his removal would cause exceptional and extremely unusual hardship to his wife and children. The BIA noted that both Delgado-Ramos and his wife had conceded that she and the daughters would remain in the United States. Although they would suffer some financial hardship, the BIA continued, his wife had not shown an inability to independently support herself and her daughters. Additionally, the children are in good health, and her anxiety is being treated.Cumulatively, the Board concluded, these factors did not amount to the requisite level of hardship to warrant cancellation of removal.
Delgado-Ramos argues that the immigration courts denied him due process by not postponing his removal hearing and...
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