Reyes-Melendez v. I.N.S.

• Decision Date: 04 September 2003
• Docket Number: No. 02-70526.,02-70526.
• Citation: 342 F.3d 1001
• Parties: Alejandro Reyes-Melendez, Petitioner, v. Immigration and Naturalization Service, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.3d 1001 Alejandro Reyes-Melendez, Petitioner,
v.
Immigration and Naturalization Service, Respondent. No. 02-70526. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 2003 — Pasadena, California. Filed September 4, 2003.

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Andrew Knapp, Law Offices of Claire Cifuentes, Los Angeles, California, for the petitioner.

Allen Hausman, United States Department of Justice, for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A73-803-198.

Before: Harry Pregerson, Sidney R. Thomas, Circuit Judges, and Cindy K. Jorgenson,^* District Judge.

OPINION

THOMAS, Circuit Judge:

Alejandro Reyes-Melendez ("Reyes-Melendez") petitions for review of the denial by the Board of Immigration Appeals ("BIA") and Immigration Judge ("IJ") of his application for suspension of deportation. He contends that he was denied a full and fair hearing because of the IJ's bias. We agree and grant the petition for review.

I

Reyes-Melendez, a citizen of Mexico, entered the United States with his wife, Maria Villanueva, and first son, Alejandro Reyes, on November 2, 1988. Maria and Alejandro also are Mexican citizens and are without status. On December 30, 1996, the INS issued an Order to Show Cause, which placed Reyes-Melendez in deportation proceedings.

Reyes-Melendez appeared before an IJ, conceded deportability, and requested relief alleging that he is eligible for suspension of deportation. He filed his application for suspension of deportation on July 8, 1997, and included a supplemental declaration, copies of the birth certificates for his United States citizen daughter, Jacqueline Reyes, and United States citizen son, David Reyes, and numerous documents attesting to his physical presence, good moral

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character, and claim to extreme hardship if deported.

Reyes-Melendez is a registered nursing assistant who cares for seriously ill and disabled individuals. His patients and their family members were grateful for his care, filling out commendations at the time of his services and writing letters on his behalf in reference to his suspension application. He has never received public assistance.

In December 1994, Reyes-Melendez was arrested for driving under the influence of alcohol. He successfully completed a court-ordered alcohol program and attended Alcoholics Anonymous meetings. His license was suspended, and he was arrested on two occasions for driving with a suspended license. Reyes-Melendez attested that he was driving to travel to his two jobs, to which he claimed he had no other transportation. In 1996, Reyes-Melendez was arrested again for driving under the influence of alcohol. He contends that with the exception of the one relapse that led to his arrest, he had remained sober. He alleges that he is in counseling to prevent life's pressures from leading to another relapse.

Shortly after his first conviction, Reyes-Melendez began to experience marital problems. He had an affair with his co-worker, Elizabeth Arroyo, who became pregnant. Elizabeth gave birth to David Reyes on February 26, 1996. The affair ended and Reyes-Melendez became no longer romantically involved with Elizabeth. Reyes-Melendez revealed the situation to his wife, Maria, and they agreed to remain together "for the sake of [the] children." Maria became pregnant in early 1996 and gave birth to Jacqueline Reyes on September 29, 1996.

Reyes-Melendez lives with his wife Maria and their children Alejandro and Jacqueline. Elizabeth lives in a separate apartment with David. Reyes-Melendez spends time with all three children each day and financially supports David by offsetting Elizabeth's rent and contributing to insurance and other expenses. Reyes-Melendez also attends church regularly, alternating between Catholic services and accompanying Elizabeth to her Jehovah's Witness services.

In his suspension application, Reyes-Melendez alleged that he and his United States citizen children would experience extreme hardship if he were deported. Reyes-Melendez alleges that he would be unable to continue his career as a nursing assistant and to provide for his family. His license in California is not recognized in Mexico and he does not have savings to attend school for a comparable certificate in Mexico. Although he has parents and ten siblings living in Mexico, he is not close to any of them. Because many of them are alcoholics, he chooses to remain distant in an effort to stay sober.

His daughter Jacqueline was born with a genetic sickle cell hemoglobin S trait. If she receives adequate health care, she will be able to avoid having children with birth defects. Jacqueline also has a tumor on her head, which requires monitoring to determine whether it develops into malignant cancer or if it spreads to other areas. Reyes-Melendez alleges that he would not be able to afford adequate health care for his daughter to monitor her conditions if he lived in Mexico.

Reyes-Melendez also contends that if he were deported, his son David would remain in the United States with Elizabeth. Reyes-Melendez alleges that his decreased economic opportunities in Mexico likely would result in his inability to provide David with adequate financial support. Because Elizabeth is unmarried and taking care of a total of three children, Reyes-Melendez speculates that she would be

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unable to make up the difference from the lost financial support.

At the IJ hearing, direct examination began with Reyes-Melendez explaining his relationship with his family who still lived in Mexico. Reyes-Melendez began to testify with respect to the abuse he experienced as a child. The IJ cut him off, explaining that she had reviewed the record and noted that the abuse was physical and not sexual in nature. The IJ stated that no more testimony was needed to present that point. Counsel complied and continued to ask questions with respect to factors relevant to Reyes-Melendez's showing of extreme hardship.

Shortly afterwards, the IJ interrupted, asking for clarification with respect to "[w]ho is the mother of[your son] David?" After Reyes-Melendez answered, the IJ asked, "So while you were married you had an affair with another woman?" Reyes-Melendez attempted to provide an explanation, and the IJ stated "So you committed adultery."

Counsel reminded the IJ that adultery is no longer a statutory bar to finding good moral character. The IJ responded, "Well, I'm aware of that. But we're talking current. I mean, we're talking two years ago. David was born of another woman, then a year and a half ago, Jacqueline was born of the wife. I mean, what?" She then immediately turned to Reyes-Melendez and asked, "You all live together in the same house, all three of you?"

Reyes-Melendez began to explain the living and financial situation, and the IJ inquired whether he was "hav[ing] on-going [sexual] relations with the mother of David" and whether he was having sex with his wife. After providing further explanation as to why his wife would accompany him to Mexico, the IJ asked "How many other women have you had [sexual] relations with?," and "How many other children do you have?"

When Reyes-Melendez explained he had no other relationships and no other children, the IJ inquired "How do we know that? I mean —" Counsel cut her off and reminded her that Reyes-Melendez was testifying under oath. The IJ then asked, "So what does Alejandro think of his brother, David? What does he know about all that?"

Counsel shortly ended the direct examination. The IJ's questioning of Reyes-Melendez with respect to David and Elizabeth took up approximately seven of the eighteen transcript pages, or approximately 38% of the direct examination.

After hearing direct and cross, the IJ rendered her oral decision at the hearing. The IJ concluded that Reyes-Melendez met the statutory elements of continuous physical presence and concluded that "[a]s to the good moral character, it appears there is no statutory bar." The IJ, however, continued by determining that he had failed to establish the statutory elements of extreme hardship. The IJ also denied Reyes-Melendez relief as a matter of discretion.

In the content of the decision, the IJ made several snide comments about David and other factors relevant to establishing good moral character and extreme hardship. For instance, the IJ found that "Respondent notes that he has three children, one born in Mexico and two in the United States. Noting the last name, it appears that he is the father of the three, but further testimony showed that David is from a different woman." (emphasis added). With respect to his attendance of religious services, the IJ stated that "[h]e also notes he is a member of the Catholic Church and also says he is participating with the Jehovah's Witness church, and is

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curiously a member of both." (emphasis added).

In discussing the claim that Reyes-Melendez's children would face extreme hardship if he were deported, the IJ heightened her dismissive tone. The IJ appeared to find that Reyes-Melendez's relationship to Elizabeth off-set any claims of hardship, "The respondent concentrated on the extreme hardship occurring to his two United States citizen children, albeit from two different women. He explains his relationship in a manner that his attorney calls cultural." (emphasis added). The IJ ignored the uncontested U.S. birth certificates in the record and observed that "Jacqueline was born and apparently [is] the offspring of the wife." The IJ also used inflammatory language when observing that Reyes-Melendez "denies that he lived in a menage a trois, but says he is supporting David and the mother in part and he lives with the wife and two children in an apartment."

The IJ also had difficulty referring to Elizabeth or David without asserting moral judgment. The IJ described David as "the offspring of his lover, every day, in fact she gave him a ride today. He did...