Lopez-Umanzor v. Gonzales, 03-72014.

Citation405 F.3d 1049
Decision Date06 May 2005
Docket NumberNo. 03-72014.,03-72014.
PartiesRosalina LOPEZ-UMANZOR, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mara Kimmel, Catholic Social Services, for the petitioner.

James E. Grimes and Thomas K. Ragland, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

David R. Fine, Carleton O. Strouss, Kirkpatrick & Lockhart Nicholson Graham LLP, Harrisburg, PA, and Gail L. Pendleton, Associate Director, National Immigration Project of the National Lawyers Guild, Boston, MA, for the amici curiae.

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

Before SCHROEDER, Chief Judge, and GOODWIN and GRABER, Circuit Judges.

GRABER, Circuit Judge.

Petitioner Rosalina Lopez-Umanzor petitions for review of a decision of the Board of Immigration Appeals ("BIA") finding her ineligible for cancellation of removal and denying her request for voluntary departure. An immigration judge ("IJ") had found Petitioner to be ineligible for relief because there was "reason to believe" that she had been involved in drug trafficking, 8 U.S.C. § 1182(a)(2)(C); the IJ disbelieved her testimony to the contrary. On appeal of the IJ's decision, the BIA rejected Petitioner's due process arguments and affirmed the IJ's adverse credibility determination. We grant the petition for review and remand for a new hearing because the IJ refused to allow Petitioner to present relevant expert testimony that bore on Petitioner's credibility, relying instead on his own stereotypical assumptions about domestic violence.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is a native and citizen of Honduras who entered the United States without inspection in 1989. Nine years later the government sought her removal. Petitioner conceded removability, but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(2), a provision available to certain victims of domestic violence.1 The IJ denied her application because he found a "reason to believe" that Petitioner had been involved in drug trafficking and, consequently, that she lacked good moral character; he also concluded that her testimony regarding domestic violence was not credible. The BIA affirmed the IJ's adverse credibility finding and his conclusion that Petitioner was ineligible for cancellation of removal and voluntary departure.

A. The course of proceedings before the IJ

In advance of her removal hearing, Petitioner submitted evidence intended to corroborate her allegation that she had suffered domestic violence, including medical records from an emergency room visit and written statements from social service providers and a psychologist who had worked with Petitioner. The government submitted a criminal information, charging Petitioner with Misconduct Involving a Controlled Substance, and a notice that the charge had been dismissed. Petitioner was the sole witness at the removal hearing on April 1, 1999. The government presented no further evidence and no evidence to undermine Petitioner's testimony regarding the abuse that she had endured.

After the April 1 removal hearing (and after missing the deadline to file a post-hearing brief), the government submitted a written statement from a detective regarding the circumstances surrounding the dismissed criminal charge. The government initially sought, and was granted, a second hearing to present the detective's live testimony. Later, however, the government twice tried to withdraw its request for a second hearing. The IJ denied the withdrawal motions and subpoenaed the detective. After Petitioner's interlocutory appeal to the BIA was denied, the second hearing went forward, with the IJ conducting the direct examination of the detective. Petitioner did not testify at the second hearing, but made an offer of proof and presented one character witness.

B. Testimony regarding domestic violence

Petitioner's husband, Luis Calzadillas, is a lawful permanent resident of the United States. Petitioner testified that, on the night she first met Calzadillas, he drugged and raped her, causing her to become pregnant. He assaulted her during that pregnancy and her two others with him, including hitting her and kicking her in the stomach. On one occasion, he caused a miscarriage. Even when Petitioner was not pregnant, Calzadillas regularly hit and beat her, threw her to the ground, and kicked her. He repeatedly threatened to call immigration authorities if she revealed the ongoing abuse.

When Petitioner tried to leave Calzadillas, he twice followed her from Texas, where they had been living, to California, and then he followed her to Alaska. Calzadillas arrived at Petitioner's apartment in Anchorage. He began drinking and attacked Petitioner with a knife, attempting to stab her in the back, but instead hitting her hand as she turned around. She went to an emergency room for treatment, where she told the doctors that she had cut her hand on a broken bottle. Petitioner testified that she lied about the cause of the injury because Calzadillas had threatened to do something worse if she did not report it that way.

After receiving treatment at the emergency room, Petitioner returned to her apartment. She returned there because, she testified, she thought (incorrectly, as it turns out) that Calzadillas had left, and she had nowhere else to go at the time. Later, however, Petitioner and her two youngest daughters sought refuge at a domestic violence shelter in Anchorage, which provided services to her as "a survivor of domestic violence" at the hands of Calzadillas.

The IJ expressed doubt about whether Petitioner was telling the truth about the abuse (a subject that we will discuss in detail below). Nonetheless, when Petitioner offered the live testimony of several expert witnesses who could testify on the topic of domestic violence, and perhaps shed light on the IJ's credibility concerns, the IJ refused to allow them to testify.

C. Testimony regarding drug trafficking

While residing in Alaska, Petitioner was arrested and charged with Misconduct Involving a Controlled Substance in the third degree. At the time of the arrest, Petitioner was a passenger in a car belonging to Jose Armando Gomez-Mendoza who, she testified, was the boyfriend of her 23-year-old daughter. Anchorage police stopped the car and arrested both Gomez-Mendoza and Petitioner. The district attorney later dropped the charge against Petitioner.

At the second hearing in this case, Anchorage Detective Bruce Edward Bryant testified that a reliable informant had identified Petitioner as one of several people involved in the distribution of crack cocaine. Detective Bryant had no first-hand knowledge of Petitioner's reported involvement in drug transactions, however, nor did any of the other officers on the case witness a transaction between the informant and Petitioner. On the day of the arrest, according to the informant, Gomez-Mendoza obtained a small package of cocaine from Petitioner, who was holding it in her mouth, and sold the package to the informant. When the car was stopped, half the marked "buy" money was found in Gomez-Mendoza's pocket and half in Petitioner's purse. Documents in her purse showed her address to be the same as the one listed on the car's registration, and telephone records showed several calls from Gomez-Mendoza to Petitioner's number (which also was her daughter's number). Additionally, a storage locker rented in Petitioner's name contained $934, three pagers, five cellular telephones, and identity documents bearing Petitioner's photograph but using other names.

On the other hand, no cocaine was found on Petitioner when she was arrested. Nor, despite a search, were any drugs found in her apartment. At the initial hearing, Petitioner testified unequivocally that she never was involved in drug trafficking. She testified that she was in the car because she had asked Gomez-Mendoza for a ride to a shopping center. Specifically, Petitioner denied having held a package for Gomez-Mendoza, denied having put anything in her mouth, and denied having taken anything out of her mouth to give to anyone.

Following Detective Bryant's testimony, the IJ accepted Petitioner's offer of proof with respect to the facts to which she had testified at the earlier hearing: she relied on Gomez-Mendoza for transportation; she had no involvement in Gomez Mendoza's drug transactions; and Gomez-Mendoza gave her half of the "buy" money because he owed her money for a radio that he previously had purchased from her. The government specifically waived the opportunity to cross-examine Petitioner.

At the conclusion of the second hearing, a character witness, who had been Petitioner's pastor for three years and who knew her well, testified on Petitioner's behalf as to her good moral character. In the pastor's opinion, Petitioner has never been involved with drugs. After the pastor's testimony, the hearing was adjourned.

RELEVANT STATUTORY PROVISIONS

To qualify for cancellation of removal under 8 U.S.C. § 1229b(b)(2) ("Special rule for battered spouse or child"), a provision added as part of the Violence Against Women Act of 1994 ("VAWA"),2 Petitioner had to demonstrate that she met each of the following five criteria:

(1) that she had been "battered or subjected to extreme cruelty" by a spouse who is or was a United States citizen or lawful permanent resident;

(2) that she had lived continuously in the United States for the three years preceding her application;

(3) that she was a person of "good moral character" during that period;

(4) that she is not inadmissible or deportable under various other specific immigration laws relating to criminal activity, including 8 U.S.C. § 1182(a)(2); and

(5) that her removal "would result in extreme hardship" to herself, her children, or her parents.

8...

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