Ordonez v. I.N.S.

• Decision Date: 02 October 2003
• Docket Number: No. 01-71752.,01-71752.
• Citation: 345 F.3d 777
• Parties: Carlos Humberto Ordonez, Petitioner, v. Immigration and Naturalization Service, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

345 F.3d 777

Carlos Humberto Ordonez, Petitioner, v. Immigration and Naturalization Service, Respondent.

No. 01-71752.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 2003^* — Pasadena, California.

Filed October 2, 2003.

COPYRIGHT MATERIAL OMITTED

Amos Lawrence, San Francisco, California, for the petitioner.

Paul Fiorino, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Immigration and Naturalization Service, INS No. A73-910-164.

Before: A. Wallace Tashima, Marsha S. Berzon, and Richard R. Clifton, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Carlos Humberto Ordonez ("Ordonez"), a native and citizen of Guatemala, petitions for review from the Board of Immigration Appeals' ("BIA's") denial of his motion to reopen his application for suspension of deportation for consideration of previously unavailable evidence on the issue of extreme hardship. He challenges the BIA's finding that he was ineligible for suspension of deportation because he failed to voluntarily depart as provided by an earlier order. He also challenges the BIA's conclusion that the additional evidence did not demonstrate extreme hardship. We have jurisdiction pursuant to 8 U.S.C. § 1105a, as amended by IIRIRA § 309(c)(4).¹ Because Ordonez did not receive adequate notice of the effects of failing to voluntarily depart and because the BIA erred in dismissing his evidence of extreme hardship, we grant the petition for review and remand.

BACKGROUND

Ordonez, a native and citizen of Guatemala, entered the United States on December 5, 1987. The Immigration and Naturalization Service ("INS") issued an Order to Show Cause on May 31, 1995, charging that he was deportable for having entered the United States without inspection. The immigration judge ("IJ") held hearings on June 29, 1995 and August 31, 1995. Ordonez admitted the order's allegations at a preliminary hearing in June, but indicated his intention to apply for asylum, suspension of deportation, and, alternatively, voluntary departure. See Ordonez v. INS, 137 F.3d 1120, 1122 (9th Cir.1998) (a prior appeal in this case). At a later hearing before an IJ, Ordonez withdrew his asylum application for reasons not clear from the record. Id. Instead, he relied solely on his application for suspension of deportation. Id. At this second hearing, Ordonez described a Guatemalan practice of killing former police officers. Id. He explained that "the system" in Guatemala dictated that when one "resigns working at the police department, they try to find a way to kill you." Id.

In Ordonez, we described Ordonez's experience in Guatemala as follows:

In 1981, Ordonez resigned from his position with the Guatemalan police. In 1984, a military official [Olverio Casseola] stationed in Ordonez's hometown of Zacapa attacked him with a knife. Ordonez then fled to Esquitla, 250 kilometers away, where in 1987 that town's chief of police, together with several bodyguards, attempted to abduct him. Due to the crowd present at the scene of the incident, Ordonez was able to escape. He subsequently decided to flee the country and came to the United States.

In 1989, Ordonez's brother-in-law was assassinated by members of the Guatemalan army near the Honduran border. Ordonez's original Zacapa attacker has since been promoted to the chief of the military in that city.

Id. Ordonez believed that the 1984 knife attack in Zacapa, the 1987 abduction attempt in Esquitla, and his brother-in-law's murder all evidenced an attempt to murder him because of his resignation from the police force. Id. In denying Ordonez's application, the IJ concluded, among other things, that Ordonez had not met his burden of showing that extreme hardship would result from deportation. Id. While concluding that Ordonez did subjectively fear for his own safety upon his return to Guatemala, the IJ stated, "I have absolutely no objective evidence and I find that I cannot support an objective finding of persecution against him on the basis that he resigned. . . . Something is wrong, but I don't know what it is, so I cannot make the objective finding and therefore, I cannot find that there is extreme hardship in this case." Id.

Although the IJ's August 31, 1995, order denied Ordonez' application for suspension of deportation, it granted voluntary departure until December 15, 1995 "with an alternative order of deportation to Guatemala should he not comply." The administrative record includes a document, entitled "Limitation on Discretionary Relief for Failure to Appear," indicating the consequences of failing to voluntarily depart. The document, signed by the IJ on August 31, 1995, states:

You have been granted voluntary departure from the United States pursuant to section 244(e)(1) of the Immigration and Nationality Act. Remaining in the United States beyond the authorized date other than because of exceptional circumstances beyond your control will result in your being ineligible for certain forms of relief under the Immigration and Nationality Act (see section A. Below) for five(5) years from the date of scheduled departure or the date of unlawful reentry, respectively.

* * *

A. THE FORMS OF RELIEF FROM DEPORTATION FOR WHICH YOU WILL BECOME INELIGIBLE ARE:

1) Voluntary departure as provided for in section 242(b) of the Immigration and Nationality Act;

2) Suspension of deportation or voluntary departure as provided in section 244(e) of the Immigration and Nationality Act; and

3) Adjustment of status or change of status....

This written notice was provided to the alien in English and in Spanish. Oral notice of the contents of this notice was given to the alien in his/her native language, or in a language he/she understands.

The IJ also provided the following oral warnings about the failure to depart voluntarily without seeking an extension:

IJ: Now, your lawyer thinks I may have made an error and I've given him the right to file an appeal and that's fine. So, the matter, I suppose, is not over. However, you must comply with either my order, or with any extension that you get by the Immigration and Naturalization Service, or this turns into an order of deportation and you will not legally be able to live in the United States for a period of five years.

Do you understand?

A. Yes, I understand.

...

IJ: I will serve the orders and the limitation on discretionary relief upon you in Spanish and in English.

Ordonez did not depart by December 15, 1995. He filed an appeal with the BIA which was denied on September 30, 1996. The BIA affirmed the IJ's dismissal of Ordonez's suspension application, agreeing that Ordonez had failed to establish extreme hardship. Ordonez, 137 F.3d at 1122. It concluded that Ordonez "has not shown that any attacks he might encounter upon return to Guatemala would be related to the political conditions there." Id. The BIA permitted voluntary departure "within 30 days from the date of this order or any extension beyond that time as may be granted by the district director." The BIA's order also stated that "in the event of a failure to so depart, the respondent shall be deported as provided in the Immigration Judge's order."

On appeal, we concluded that the BIA abused its discretion by limiting its inquiry to whether Ordonez had shown persecution on account of political conditions in Guatemala and thereby failing to consider whether Ordonez's claim that he would be met with certain death if forced to return to Guatemala constituted extreme hardship. Id. at 1124. We remanded for consideration of additional hardship factors. Id.

On remand, Ordonez submitted supplemental briefing. On April 16, 1999, the BIA again dismissed Ordonez's appeal of the denial of suspension of deportation, finding that Ordonez had neither shown that he would be faced with death or physical harm if forced to return to Guatemala nor that he would experience extreme hardship if removed to Guatemala. The BIA's order again permitted voluntary departure, stating:

Pursuant to the Immigration Judge's order and in accordance with our decision in Matter of Chouliaris, 16 I & N Dec. 168 (BIA 1977), the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent shall be deported as provided in the Immigration Judge's order.

Ordonez did not depart by the thirtieth day after the order's entry.

On June 10, 1999, Ordonez filed a motion to reopen for consideration of previously unavailable evidence of extreme hardship. With his motion to reopen, Ordonez filed a declaration stating that, in July 1998, eight men told his brother-in-law to leave the country, an incident the brother-in-law suspected was linked to the earlier incident in which Ordonez had been forced to leave the country by Casseola, the man who attacked Ordonez in 1984. His declaration stated that, on December 29, 1998, Ordonez's brother-in-law and his wife's uncle were murdered by people Ordonez believed were acting on behalf of Casseola. He also declared that two days after the murders, his wife received a phone call saying that she would be next. Prior to the brother-in-law's murder, Ordonez's wife noticed cars with tinted windows passing their adjacent houses.

Ordonez declared that he believes that his brother-in-law's murder and threats to his wife stem from their connection with him and demonstrate that he is still in danger from the military. He believes that the military wants him dead "because of confidential information [he] know[s] about their previous activities as a former member of the National Police." In addition to his declaration, Ordonez submitted his brother-in law's death certificate identifying gunshot wounds as the cause of death, his wife's birth certificate, his own identification card, and the...