Zamorano v. Garland

• Decision Date: 25 June 2021
• Docket Number: No. 19-72893,19-72893
• Citation: 2 F.4th 1213
• Parties: Victor Luis Angeles ZAMORANO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

2 F.4th 1213

Victor Luis Angeles ZAMORANO, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-72893

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2021 Pasadena, California

Filed June 25, 2021

Joseph V. Bui (argued) and Robert A. Olson, Greines Martin Stein & Richland LLP, Los Angeles, California, for Petitioner.

Andrew Oliveria (argued), Trial Attorney; Justin Markel, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and Kathryn H. Vratil,^* District Judge.

IKUTA, Circuit Judge:

Victor Luis Angeles Zamorano, a native and citizen of Mexico, seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the immigration judge (IJ) that denied his application for voluntary departure. Because the IJ failed to evaluate the factors weighing in favor of granting Zamorano voluntary departure, we grant the petition and remand to the BIA. We otherwise reject Zamorano's arguments that the agency erred in failing to develop other bases for relief.

I

A

In May 2019, Zamorano was served with a notice to appear (NTA), which charged him as removable based on his presence in the United States without admission or parole.

At the initial removal proceeding, the IJ explained to Zamorano that "the purpose of these proceedings is to determine whether you should be removed from or allowed to remain in the United States." The IJ informed Zamorano that he had the right to be represented by an attorney of his choice, at no expense to the government, and indicated that Zamorano had been provided an appeal rights form and a legal aid list of local individuals and organizations. The IJ further explained that "[i]f you do not find an attorney or choose not to have an attorney, then you're required to represent yourself, plead to the allegations and charges against you, as well as prepare any potential applications for relief." Finally, the IJ informed Zamorano that if he did not have an attorney at the next hearing, he should come to the hearing prepared to represent himself.

At his third hearing, after Zamorano did not obtain an attorney despite two continuances, Zamorano stated that he was ready to proceed and to represent himself. The IJ then advised Zamorano of his rights in addition to his right to have an attorney. The IJ explained that he had "the right to present documents or testimony to support your case"; "the right to object to Government evidence and to question witnesses they present"; and "the right to appeal any decision" that the IJ made in his case to the BIA "within 30 days of that decision." Zamorano stated that he understood those rights.

The IJ proceeded through the allegations in the NTA. Zamorano admitted that he was not a citizen or national of the United States, was a native and citizen of Mexico, and entered the United States illegally "at an unknown place on an unknown date." Zamorano also acknowledged that he could be removed based on these allegations.

The IJ then turned to a series of questions regarding potential bases for relief. The IJ asked when Zamorano first entered the United States. Zamorano responded that he entered around the year 2000 as a third grader. The IJ then asked whether Zamorano had ever left the United States, and Zamorano explained that he had not.

The IJ then turned to questions regarding whether Zamorano had relatives in the United States who might assist him in obtaining relief such as cancellation of removal or adjustment of status. He asked whether Zamorano was married, whether Zamorano had children, and whether Zamorano had parents or grandparents in the United States with lawful status. Zamorano responded that he was not married and that he had no children.¹ He also responded that neither his parents nor his grandparents had lawful status, but he noted that his mother was "processing her residency" in the United States. The IJ inquired how Zamorano's mother was pursuing residency, and Zamorano responded that she had "a case of domestic violence." The IJ followed up, "So she's seeking a U-visa?"² Zamorano said, "Yeah." The IJ then asked whether anyone had filed a petition for Zamorano "seeking [his] adjustment to a lawful permanent resident." Zamorano said no.

The IJ then turned to the topic of Mexico, Zamorano's designated country of removal. This exchange followed:

IJ: Do you have any fear of returning to Mexico?

Zamorano: I don't know anybody in Mexico, my family's all here.

IJ: Okay. I understand that may be the situation, but my question is a little different than that.

Zamorano: Yeah

IJ: My question was, do you have any fear of returning to Mexico?

Zamorano: I fear that I don't know how to start a life in a new country, pretty much.

IJ: Okay

Zamorano: That's what I fear.

IJ: Any other reason that you fear returning to Mexico?

Zamorano: Not that I know of.

After this exchange, the IJ stated: "Well, sir, there does not appear to be any qualifying relatives for cancellation of removal and no[ ] petitions for any adjustment, and the single reason you give of not knowing how to start a new life in Mexico is not a valid reason for asylum or related relief." The IJ explained that "at this stage I don't see any forms of relief available to you, except maybe voluntary departure."

Turning to the possibility of voluntary departure, the IJ asked the government whether Zamorano had "any criminal history relevant to voluntary departure." According to the government, Zamorano had been convicted for driving under the influence in 2014 and 2016. For the 2016 conviction, Zamorano was driving under the influence of alcohol, without a driver's license and while talking on the phone. Zamorano had also been arrested in 2018 and 2019 for disorderly conduct issues related to alcohol use, and was convicted for one of these disorderly conduct offenses.

Zamorano acknowledged the two DUIs but argued that there were mitigating circumstances. In 2014, he was driving to his girlfriend's house and lost control of the car due to a mechanical failure. He suffered a skull fracture

from the resulting accident. He claimed that he completed the required programs and classes for a person convicted of a DUI. As to the DUI in 2016, Zamorano stated he was on the phone with his girlfriend when he lost control of the car. Zamorano disputed the report of a witness who said that Zamorano attempted to hit someone with his car. Zamorano likewise explained that, although he was arrested for battery on a police officer who attempted to pull Zamorano from the car, Zamorano only accidentally hit the police officer. Finally, Zamorano claimed that his later disorderly conduct offense occurred only because police stopped him when he was walking home in his neighborhood.

The IJ concluded that given the persistent criminal issues, he would not grant voluntary departure as a matter of discretion. The IJ informed Zamorano that Zamorano could either appeal the IJ's decision or waive his right to appeal. Zamorano stated his intent to appeal.

The IJ then issued an oral decision. He first stated that Zamorano's "only fear of returning to Mexico was that he may not know how to start a new life there" and that "this was not a validly lawful reason to seek asylum or relief under the Convention Against Torture." Therefore, Zamorano's "only request for any form[ ] of relief is in the form of pre-conclusion voluntary departure."³

Zamorano's "criminal background, the repetitive nature of the DUI offenses, which both result[ed] in property damage, as well as the seriousness of those offenses and the continued issues [Zamorano] apparently has with alcohol" made the court "concerned" as to whether Zamorano was "deserving of any voluntary departure." For those reasons, the IJ stated that he would "deny pre-conclusion voluntary departure as a matter of discretion." The IJ ordered Zamorano removed to Mexico.

B

Zamorano filed a pro se appeal with the BIA. Zamorano primarily argued that the IJ abused his discretion in denying voluntary departure based on Zamorano's problems with alcohol. According to Zamorano, the IJ failed to take into account that Zamorano does not have an alcohol problem, that he had completed required programs and classes to address his alcohol use, and that there were mitigating circumstances for his crimes of conviction. Moreover, Zamorano argued that the IJ failed to consider that he is a person of good character and that he could have adduced evidence showing he had made contributions to his family and community.

Zamorano next raised a long list of other claimed bases for relief. First, he claimed that he was a victim of domestic violence and that, because his mother was getting permanent residency, Zamorano was also eligible for a U-Visa. Zamorano argued that the IJ erred because the IJ "never interrogated [Zamorano] to see if he qualified for a U-Visa and thus violated [Zamorano's] due process."

Zamorano next claimed that he was planning to marry his fiancee and obtain adjustment of status through her. He argued that the IJ violated his due process rights by failing to present him with an application that a U.S. citizen could use to petition to bring a fiancee into the United States for marriage. He also stated that he was eligible for suspension of deportation under 8 U.S.C. § 1254a(a)(1),⁴ cancellation of removal, and adjustment of status. Finally, Zamorano claimed he was eligible for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) because he belongs to a group that is "targeted, extorted and killed by gangs and cartels that work with authorities that the Government is unwilling or unable to stop." Zamorano identified this group as people who have lived in the United States for most of their lives but are deported to Mexico without family ties in Mexico. He...