Salgado-Diaz v. Ashcroft

• Decision Date: 31 January 2005
• Docket Number: No. 03-73312.,No. 02-74187.,02-74187.,03-73312.
• Citation: 395 F.3d 1158
• Parties: Ernesto SALGADO-DIAZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent. Ernesto Salgado-Diaz, Petitioner, v. John Ashcroft, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

395 F.3d 1158

Ernesto SALGADO-DIAZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

Ernesto Salgado-Diaz, Petitioner, v. John Ashcroft, Attorney General, Respondent.

No. 02-74187.

No. 03-73312.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2004.

Filed January 31, 2005.

Karen Levine, Levine Law Offices, San Diego, CA, for the petitioner.

M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

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

Before: TASHIMA, FISHER and TALLMAN, Circuit Judges.

FISHER, Circuit Judge.

Ernesto Salgado-Diaz comes before us for the second time, petitioning for review of a decision of the Board of Immigration Appeals ("BIA") summarily affirming the decision of an Immigration Judge ("IJ") finding him removable. Salgado-Diaz alleges that his due process rights have been violated because he has been repeatedly denied an evidentiary hearing on his allegations that U.S. border patrol agents unlawfully arrested him on the streets of San Diego, California, and took him to Mexico in 1996, even though he was in immigration proceedings at the time. His arrest and expulsion set in motion a series of events that ultimately resulted in Salgado-Diaz losing his opportunity to seek relief under then-existing immigration laws that likely would have entitled him to suspension of deportation.¹

If Salgado-Diaz's allegations concerning his arrest and expulsion are true, he would have a substantial claim that his constitutional rights have been violated. Accordingly, we hold that denying him an evidentiary hearing on those allegations is itself — under the circumstances present here — a due process violation. We therefore grant his petition and remand his case to the BIA for an evidentiary hearing on petitioner's arrest and expulsion by border agents and a determination of whether petitioner qualifies for the relief of suspension of deportation.

I. FACTUAL AND PROCEDURAL BACKGROUND

Salgado-Diaz entered the United States from Mexico without inspection in August 1989. He lived in San Diego with his mother and has a daughter who was born in the United States in September 1996. He has one U.S. citizen sister and two other siblings who are legal permanent residents.

In August 1996, Salgado-Diaz filed for asylum and withholding of deportation. Shortly thereafter, the Immigration and Naturalization Service ("INS") sent him an order to show cause as to why he should not be deported.² Petitioner first appeared before an IJ on November 4, 1996.³ The IJ postponed Salgado-Diaz's hearing until December so his counsel could be present.⁴

Before the scheduled follow-up hearing, however, U.S. Border Patrol agents arrested Salgado-Diaz on November 17, while he was walking on a street in San Diego. He alleges that he was on his way to pick up orange juice from a local store for a family gathering when, merely because he appeared to be Hispanic, the agents stopped him and asked if he had a green card. According to petitioner, he told the agents about his pending immigration hearing, but they ignored him. He was then asked to sign a form, which he understood to be necessary for looking up his pending immigration proceedings. In fact, it was a voluntary departure form. The INS took Salgado-Diaz by bus to Tecate, Mexico.

Six days later, on November 23, Salgado-Diaz attempted to reenter the United States using a fake passport.⁵ He claims he thought he was carrying a work permit or other document that could be used to cross the border lawfully. The INS took Salgado-Diaz into custody when he produced the fake document.

After Salgado-Diaz's attempted reentry, the INS moved in December 1996 to terminate the still-pending deportation proceedings so that it could bring exclusion proceedings against him instead. Concerned that he now faced more serious charges against him with less likelihood of relief, petitioner opposed the termination of deportation proceedings — arguing that he did not voluntarily depart the United States but instead was coerced into leaving the country. The INS responded by requesting an evidentiary hearing, which it believed necessary for the IJ "to correctly rule on the issue of termination."

At a hearing on January 9, 1997, the IJ terminated deportation proceedings against Salgado-Diaz, clearing the way for the INS to institute the more stringent exclusion proceedings against him. The IJ — plainly troubled by petitioner's circumstances and the allegations of government misconduct — did not conduct an evidentiary hearing to resolve the disputed issue of whether petitioner was unlawfully arrested by border patrol agents and forced to depart the country. Rather, the IJ concluded that the issue, including any "possible Service misconduct," would have to be litigated in the exclusion proceeding. The IJ made explicit that terminating the deportation proceedings did not mean he was deciding or "condoning what the Service officers may or may not have done in this case."

The IJ acknowledged that petitioner could be disadvantaged if the INS did not initiate the exclusion proceedings before April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, which worked major changes in the immigration laws that would be unfavorable to someone in Salgado-Diaz's circumstances. But the IJ also suggested that Salgado-Diaz could seek relief on appeal from any prejudice caused by terminating the old proceedings if the new proceedings did not begin until after April 1, 1997. "[You can] [p]ut all of that into the appeal, say you know, the Service prejudiced my client by doing all of these things.... [If Salgado-Diaz] is denied suspension after that, you got a whole bunch of ways to appeal."

Salgado-Diaz appealed to the BIA, asserting that the IJ violated his due process rights by terminating deportation proceedings without a full and fair hearing on his claim for relief. Specifically, he argued he was not given the chance to establish facts about his forced removal and the INS border agents' knowledge that he was already in deportation proceedings at the time. Salgado-Diaz also urged that the INS, based on its affirmative misconduct, should be estopped from relying on his illegal reentry.

The BIA, in June 1998, affirmed the IJ's decision. The Board held that based on the record before it, and "absent the testimony or affidavit of the arresting officers," it could not conclude that the agents who arrested Salgado-Diaz coerced him into signing voluntary return documents or that the INS should be estopped. The Board did not address petitioner's claim that he was denied a fair hearing.

Salgado-Diaz appealed the BIA's decision to this court, asking that we consider his claim "that he should be in deportation rather than exclusion proceedings because he was improperly and illegally removed from the country." Salgado v. INS, No. 98-70823, 2000 WL 569505,*1 (9th Cir.2000) (unpublished disposition). In its responsive brief, the INS asserted that the allegations raised by Salgado-Diaz are "issues of fact [that] are properly resolved in an evidentiary exclusion hearing." The INS also stated that if the facts demonstrated that border agents had arrested petitioner unlawfully, Salgado-Diaz could still apply for relief from deportation.

Concluding that the IJ's decision to terminate deportation proceedings in favor of an exclusion proceeding was not a final order of deportation or exclusion, we dismissed for lack of jurisdiction. Id. However, we expressly noted that the INS had represented that Salgado-Diaz "may litigate his claims regarding the legality of his departure, as well as litigate the question of whether he is properly in exclusion or deportation, at an exclusion hearing." Id.

Meanwhile, the INS had on June 12, 1997, instituted new proceedings against Salgado-Diaz. Although the INS had contemplated that petitioner would be placed in exclusion proceedings, IIRIRA eliminated the distinction between deportation and exclusion proceedings, replacing them with a new, consolidated category — "removal." Thus, when the INS instituted new charges against petitioner, it was in the form of a notice to appear for removal proceedings.

At subsequent removal hearings before the IJ, petitioner continued to press for an evidentiary hearing on whether the border agents in San Diego had unconstitutionally arrested him and forced him out of the country, interfering with his pending deportation hearing. In November 2000, Salgado-Diaz moved to suppress any direct or indirect evidence resulting from the arrest.

At a December 2000 hearing, the IJ initially agreed that Salgado-Diaz should have a hearing on his suppression motion. But at petitioner's later and final immigration hearing in July 2001, the IJ changed his mind and limited the evidentiary hearing to whether any coercion took place after Salgado-Diaz attempted to reenter the country with his fake passport, not the circumstances of petitioner's San Diego arrest and expulsion. The IJ read the BIA's decision as foreclosing the latter issues, leaving only issues related to his reentry open to dispute — even though this was not the focus of petitioner's motion to suppress. The IJ concluded that INS agents did not engage in any unlawful conduct when Salgado-Diaz reentered the country and ordered him removed. The BIA summarily affirmed and subsequently denied his motion to reopen. He timely petitioned this court for review. We have jurisdiction under 8 U.S.C. § 1252.

II. STANDARD OF REVIEW

We review de novo due process challenges to final orders of deportation. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000).

III. DISCUSSION

A. Due Process Violation

Immigration proceedings, although not subject to the full range of constitutional...