Ortiz v. INS

• Decision Date: 08 June 1999
• Docket Number: No. 97-71022.,97-71022.
• Citation: 179 F.3d 1148
• Parties: Alvaro Gerardo ORTIZ; Alma Jeaneth Lopez; Nelson G. Ortiz; Cristian Bladimir Ortiz; Jeaneth Esmeralda Ortiz, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.3d 1148

Alvaro Gerardo ORTIZ; Alma Jeaneth Lopez; Nelson G. Ortiz; Cristian Bladimir Ortiz; Jeaneth Esmeralda Ortiz, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-71022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1999.

Filed June 8, 1999.

COPYRIGHT MATERIAL OMITTED

Garish Sarin, Los Angeles, California, for the petitioners.

James A. Hunolt, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Before: BOOCHEVER, O'SCANNLAIN, and TASHIMA, Circuit Judges.

BOOCHEVER, Circuit Judge:

Alvaro Gerardo Ortiz, his wife and three children (the "Ortizes") are natives and citizens of Guatemala. They petition for review of the decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") decision denying their application for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a), 1253(h). We have jurisdiction pursuant to 8 U.S.C. § 1105a,¹ and we deny the petition. We stay the mandate for 90 days, however, to allow the Ortizes an opportunity to move the BIA to reopen to consider any claims for relief the Ortizes may have under the Nicaraguan Adjustment and Central American Relief Act of 1997 and the United Nations Convention Against Torture.

BACKGROUND

In April 1995 the Ortizes were served with an Order to Show Cause why they should not be deported as aliens who had entered the United States without inspection by an immigration officer. On May 16, 1995, the Ortizes filed an application for political asylum. At their first immigration hearing on July 5, 1995, the Ortizes admitted the allegations in the OSC and conceded their deportability, but requested withholding of deportation and asylum, or in the alternative, voluntary departure. At the close of the hearing, the Ortizes' counsel stated that he had only recently been retained, and was not sure whether he was going to "stay with the same asylum application."

The immigration judge held a final hearing on the Ortizes' asylum application on July 24, 1995. After the Ortizes' counsel told the IJ that there was an error in the asylum application, the IJ permitted counsel to make any necessary corrections. After a short recess, in response to the IJ's questioning, Mr. Ortiz stated that he was neither familiar with the contents of the application nor had the application been read to him. The IJ then allowed Mr. Ortiz's attorney and an interpreter to go over the application. The IJ noted that counsel had crossed out on the application the answers to questions 18, 19, and 20, which asked, respectively, "Why are you seeking asylum," "What do you think would happen to you if you returned to your home country," and "Have you or any member of your family ever belonged to or been associated with any organizations or groups in your home country."² In response to questioning from the IJ, Mr. Ortiz stated that he crossed out those answers because they were untrue. After the IJ noted his concern with Mr. Ortiz's truthfulness, Mr. Ortiz responded that the application had been prepared by a notary, and that when he signed the application, it had been blank.

The Ortizes' counsel and the IJ then began to question Mr. Ortiz to establish the basis of his asylum claim. Mr. Ortiz stated that he "possibly" felt that his life would be threatened if he went back to Guatemala because the police had previously come to his house on several occasions and beat him. In one incident in 1985, they arrested him on theft charges for stealing a television. He was held for approximately a month and a half before trial, but was released ten days after the trial after his father produced the receipt for the television. Soon thereafter, Mr. Ortiz testified that he and two friends were detained and strip-searched by the police.

In response to his counsel's questions, Mr. Ortiz then stated that he had spent three years, between 1986 and 1989, in prison for a drug trafficking conviction, but he denied ever trafficking in drugs. Mr. Ortiz stated that he had no other convictions. Mr. Ortiz's counsel asked no more questions, and stated that he had nothing further with respect to Mr. Ortiz. The IJ then asked Mr. Ortiz about his conviction: "And you were convicted of . . . trafficking in drugs? Had you been convicted and that's why you were serving three years in jail?" Mr. Ortiz answered, "Yes, sir." Later, counsel for the INS asked Mr. Ortiz why he thought his life would be in danger if he returned to Guatemala, but the IJ cut off the question because he thought the question was unnecessary.

Later in the hearing, in response to questions from the IJ, Mr. Ortiz's wife recounted that she had seen the police shoot someone at the cinema where she worked. All of the Ortizes stated that, if given an opportunity to leave the United States voluntarily, they would do so. The IJ then rendered an oral decision granting all of the Ortizes except for Mr. Ortiz voluntary departure. The Ortizes appealed to the BIA.

On August 27, 1997, the BIA dismissed most of the Ortizes' appeal. The BIA found that Mr. Ortiz had failed to establish that he was eligible for asylum because he admitted that he had been convicted of an aggravated felony, and because he had failed to demonstrate past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Further, because Mr. Ortiz had failed to establish a claim for asylum, he necessarily also did not demonstrate a claim for withholding of deportation, which has a higher burden of proof. The BIA did, however, reverse the IJ and granted Mr. Ortiz the right of voluntary departure. Finally, the BIA found that the performance of the Ortizes' counsel was not so deficient to be a violation of due process because the Ortizes failed to demonstrate any prejudice. The Ortizes filed this timely petition for review on September 11, 1997.

DISCUSSION

I. The Nicaraguan Adjustment and Central American Relief Act of 1997 and United Nations Convention Against Torture

The Ortizes seek to have their case remanded back to the BIA with orders to reopen so that they can apply for suspension of deportation under the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), Pub.L. No. 105-100, 111 Stat. 2193 (Nov. 19, 1997), as amended by Act of Dec. 2, 1997, Pub.L. No. 105-139, 111 Stat. 2644. Section 203 of the NACARA affords certain Guatemalans (among others) applying for a suspension of deportation, the benefit of pre-IIRIRA rules for calculating their duration of physical presence in the United States. The Ortizes arrived in the United States before October 1, 1990, and may be eligible for relief under the NACARA.³ See Aguilar-Escobar v. INS, 136 F.3d 1240, 1241 (9th Cir.1998). The INS, however, argues that this court should deny the Ortizes' request for remand because they have an unexhausted administrative remedy in the form of a motion to the BIA to reopen their deportation proceeding. We agree.

Because the Ortizes did not raise the issue of their eligibility for relief under the NACARA before the BIA, we lack jurisdiction to consider that claim. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994). The Ortizes are free, however, to raise this issue before the BIA in the form of a motion to reopen. See id. (stating that although the alien could not raise an issue for the first time on appeal from the BIA, the alien was free to move the BIA to reopen).

This court has held that "when an alien discovers new information after the BIA has finalized deportation proceedings, the proper procedure is for the alien to move the BIA to reopen proceedings, not to petition this Court to compel the BIA to reopen." Olivar v. I.N.S., 967 F.2d 1381, 1382 (9th Cir.1992); see also Ramirez-Gonzalez v. I.N.S., 695 F.2d 1208, 1213-14 (9th Cir.1983). A change in eligibility for relief under a new statute qualifies as new information. See Olivar, 967 F.2d at 1383. Thus, if the Ortizes are entitled to apply for a suspension of deportation under the NACARA, "that statute should first be brought to the attention of the BIA so that it can address the Ortizes' claim under its normal procedures." Id. We thus deny the Ortizes' request to remand to the BIA with orders to reopen, but we will stay our mandate for a period of 90 days to allow the Ortizes an opportunity to file a motion to reopen with the BIA to consider their eligibility for relief under the NACARA. As the BIA has not yet had an opportunity to consider this issue, we express no opinion on the Ortizes eligibility for relief under the NACARA.

At oral argument, counsel for the Ortizes argued for the first time that the Ortizes may also be eligible for relief under the United Nations Convention Against Torture ("Convention").⁴ Whether the Ortizes are entitled to relief under the Convention, however, is also an issue that must first be brought to the attention of the BIA. Accordingly, our 90-day stay of the mandate will also afford the Ortizes an opportunity to move the BIA to reopen to consider the applicability of the Convention.

Although the Ortizes may be entitled to relief under the NACARA or the Convention, we may still reach the merits of the Ortizes' remaining claims. See Aguilar-Escobar, 136 F.3d at 1241 (reaching the merits of petitioner's asylum claim despite the possibility of relief under the NACARA).

II. Due Process

At the deportation hearing, Mr. Ortiz testified that while in Guatemala, he had been arrested and harassed by the police, and had spent three years in a Guatemalan jail after he was convicted of drug trafficking. Mr. Ortiz, however, denied trafficking in drugs. The attorney for the Ortizes did not ask Mr. Ortiz any questions regarding why he had been arrested or harassed by the Guatemalan...