Manuel Vilchez v. Eric Holder, Jr. , 682 F.3d 1195 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL VILCHEZ, 
Petitioner, No. 09-71070
v.
 Agency No.
A043-665-970
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 17, 2012—Pasadena, California
Filed June 19, 2012
Before: Jerome Farris and William A. Fletcher,
Circuit Judges, and Edward R. Korman,
Senior District Judge.*
Opinion by Judge William A. Fletcher
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
7115
VILCHEZ v. HOLDER 7117
COUNSEL
Brenda Carolina Diaz, PHUNG MIYAMOTO & DIAZ, LLP,
Los Angeles, California, for the petitioner.
William Clark Minick, U.S. DEPARTMENT OF JUSTICE,
Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Manuel Vilchez, a lawful permanent resident,
pled guilty in 2007 to felony domestic battery. He was
charged with removability based on this conviction. He con-
ceded removability and applied for cancellation of removal.
The Immigration Judge (“IJ”) conducted Vilchez’s hearing by
video conference. The IJ denied Vilchez’s application, and the
Board of Immigration Appeals (“BIA”) affirmed. Vilchez
7118 VILCHEZ v. HOLDER
petitions for review, arguing inter alia that the video-
conference hearing violated his right to due process. We con-
clude, in the circumstances of this case, that there was no due
process violation.
We deny the petition for review.
I. Background
Vilchez is a native and citizen of Peru. He first came to the
United States in 1990 when he was twelve. He became a law-
ful permanent resident in 1995.
Vilchez has a United States citizen son, Tristan, born in
2001, whom he helps support financially. Vilchez’s mother,
stepfather, three brothers, and sister live in the United States.
They are all either citizens or lawful permanent residents. The
only member of Vilchez’s extended family who does not live
in the United States appears to be his maternal grandmother,
who lives in Peru.
In 2003, Vilchez pled guilty to possession of controlled
substance paraphernalia. Cal. Health & Safety Code § 11364.
Entry of judgment was deferred pending completion of a drug
program. After Vilchez completed the program, the convic-
tion was dismissed.
In 2005, Vilchez was charged with felony domestic battery
resulting in bodily injury. Cal. Penal Code § 273.5(a). The
District Attorney subsequently obtained a restraining order
against Vilchez. While the domestic battery charge was pend-
ing, Vilchez pled guilty to possession of drug paraphernalia
and being under the influence of a controlled substance. Cal.
Health & Safety Code §§ 11364, 11550(a). He received three
years probation and was placed in a drug treatment program.
In 2006, Vilchez was arrested for violating the restraining
order. The District Attorney re-filed the felony domestic bat-
VILCHEZ v. HOLDER 7119
tery charge against Vilchez and charged him with violating
the order. Cal. Penal Code §§ 166(c)(1), 237.5(a). Vilchez
pled guilty to both charges. He was sentenced to ten days in
jail and three years of probation, and he was ordered to com-
plete a batterer’s treatment program. Vilchez twice violated
the terms of his probation by testing positive for amphet-
amines, resulting in additional incarceration.
In 2008, the Department of Homeland Security served Vil-
chez with a Notice to Appear, charging him with removability
under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a
crime of domestic violence. At his initial hearing, he con-
ceded removability and applied for cancellation of removal
under 8 U.S.C. § 1229b(a).
On December 18, 2008, while Vilchez was performing
dishwashing duties at an immigration detention center, indus-
trial strength soap splashed in his left eye, burning his cornea.
On January 6, 2009, less than three weeks later, an IJ held a
hearing on Vilchez’s application for cancellation of removal.
The IJ conducted the hearing by video conference. The IJ was
in Tucson, Arizona. Vilchez, the witnesses, and the lawyers
were all in Lancaster, California.
At the hearing, Vilchez testified about his family situation
and his eye injury. He recounted his criminal history and testi-
fied that his time in the immigration detention center had
changed him for the better. Vilchez’s mother, brother, and
stepfather testified on his behalf. A letter from the mother of
his son, attesting to the hardship that Vilchez’s removal would
cause their child, was admitted into evidence. Vilchez’s for-
mer girlfriend, the victim of his domestic violence conviction,
did not appear. According to Vilchez’s attorney, she was
unable to attend because she was “on house arrest.” The rea-
son for her house arrest was not explained.
The IJ denied Vilchez’s application for cancellation of
removal. The IJ found Vilchez statutorily eligible for cancel-
7120 VILCHEZ v. HOLDER
lation, but denied his application as a matter of discretion. The
IJ noted Vilchez’s strong ties to the United States, the hard-
ship removal would impose on him and his eligible family
members, and his admirable record of employment and pay-
ing taxes. The IJ also noted several countervailing factors,
including Vilchez’s substantial criminal record, his multiple
drug convictions and probation violations, his disrespect for
the law, his failure to modify his behavior, and his domestic
violence conviction. Finally, the IJ noted that Vilchez had dis-
regarded his family responsibilities by abusing drugs, and that
he had not shown that he was rehabilitated. The IJ concluded
that the negative factors outweighed the positive factors.
The BIA affirmed the IJ’s decision. The BIA found no due
process violation in the IJ’s decision to hold Vilchez’s hearing
by video conference. It noted that the Immigration and
Nationality Act (“INA”) expressly allows hearings by video
conference, even without the alien’s consent, 8 U.S.C.
§ 1229a(b)(2), and that Vilchez neither requested an in-person
hearing nor explained how the video-conference hearing prej-
udiced him.
Vilchez timely petitioned for review.
II. Jurisdiction and Standard of Review
We have jurisdiction to review constitutional claims,
including due process claims, raised in a petition for review.
8 U.S.C. § 1252(a)(2)(D). Because due process requires the IJ
to consider the relevant evidence, see Larita-Martinez v.
I.N.S., 220 F.3d 1092, 1095 (9th Cir. 2000), we also have
jurisdiction to review whether the IJ considered this evidence
in deciding whether to grant cancellation of removal. How-
ever, we lack jurisdiction to review the merits of a discretion-
ary decision to deny cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B)(I); Bermudez v. Holder, 586 F.3d 1167, 1169
(9th Cir. 2009) (per curiam).
VILCHEZ v. HOLDER 7121
We review legal and constitutional questions, including
alleged due process violations, de novo. Hamazaspyan v.
Holder, 590 F.3d 744, 747 (9th Cir. 2009). We review factual
findings for substantial evidence. Id. at 590 F.3d at 747.
Where the BIA conducts de novo review of the IJ’s deci-
sion, we limit our review to the BIA’s decision, except to the
extent that the BIA expressly adopted the IJ’s decision.
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).
Where the BIA adopted part of the IJ’s decision as its own,
we treat the incorporated parts as the BIA’s. Aguilar-Ramos
v. Holder, 594 F.3d 701, 704 (9th Cir. 2010).
III. Discussion
Vilchez argues that the BIA erred by (1) finding no due
process violation in the video-conference hearing and (2)
affirming the IJ’s denial of his application for cancellation of
removal.
A. Video-Conference Hearing
[1] The INA expressly authorizes hearings by video con-
ference, even without an alien’s consent. 8 U.S.C.
§ 1229a(b)(2)(A)(iii); see also 8 C.F.R. § 1003.25(c) (“An
Immigration Judge may conduct hearings through video con-
ference to the same extent as he or she may conduct hearings
in person.”). By contrast, an alien’s consent is required for
hearings conducted by telephone. 8 U.S.C. § 1229a(b)(2)(B)
(“An evidentiary hearing on the merits may only be con-
ducted through a telephone conference with the consent of the
alien involved after the alien has been advised of the right to
proceed in person or through video conference.”). Vilchez
does not dispute that the IJ had statutory authority to conduct
his hearing via video conference. However, he argues that the
video conference violated his constitutional right to due pro-
cess.
7122 VILCHEZ v. HOLDER
[2] Immigration proceedings must provide the procedural
due process protections guaranteed by the Fifth Amendment.
Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.
2009). “A due process violation occurs where (1) the proceed-
ing was so fundamentally unfair that the alien was prevented
from reasonably presenting his case, and (2) the alien demon-
strates prejudice, which means that the outcome of the pro-
ceeding may have been affected by the alleged violation.” Id.(citation and internal quotation marks omitted).
[3] Our sister circuits have rejected due process challenges
to video conferences. See, e.g., Aslam v. Mukasey, 537 F.3d
110, 115 (2d Cir. 2008) (per curiam); Garza-Moreno v. Gon-
zales, 489 F.3d 239, 241-42 (6th Cir. 2007). We agree that a
hearing by video conference does not necessarily deny due
process.
[4] We recognize, however, that in a particular case video
conferencing may violate due process or the right to a fair
hearing guaranteed by 8 U.S.C. § 1229a(b)(4)(B). For exam-
ple, in Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. 2008), the
petitioner had been unable to review key documents during a
video-conference hearing. The Seventh Circuit held that in
this circumstance the video-conference hearing had violated
the petitioner’s right to a fair hearing guaranteed by
§ 1229a(b)(4)(B). Id. at 532-33 (“‘[T]here is no need to
invoke the Constitution when the immigration statute itself
guarantees a fair hearing.’ ” (internal citation omitted)). Fur-
ther, as noted by the Fourth Circuit in Rusu v. I.N.S., 296 F.3d
316, 322 (4th Cir. 2002), video conferencing “may render it
difficult for a factfinder in adjudicative proceedings to make
credibility determinations and to gauge demeanor,” and may
thereby violate due process.
[5] Whether a particular video-conference hearing violates
due process must be determined on a case-by-case basis,
depending on the degree of interference with the full and fair
presentation of petitioner’s case caused by the video confer-
VILCHEZ v. HOLDER 7123
ence, and on the degree of prejudice suffered by the peti-
tioner. In the case before us, we hold that the video-
conference hearing did not violate due process. Vilchez con-
tends that his credibility was “erroneously compromised”
when he testified by video, rather than in person, because he
“appeared nervous” and was “uncomfortable with the video
conferencing process.” However, the IJ never made an
adverse credibility determination. The IJ expressed some
skepticism about Vilchez’s testimony but that skepticism was
based on inconsistencies between the content of Vilchez’s tes-
timony and the record evidence. These inconsistencies would
have existed even if Vilchez had testified in person.
Vilchez further contends that he was “unable to adequately
demonstrate his eye injury to the Court” because the video
camera was “never fully focused on him.” But Vilchez does
not explain how providing the IJ with an in-person hearing
would have affected the IJ’s decision. The IJ carefully consid-
ered, and gave full credit to, Vilchez’s claim of hardship aris-
ing from his still-fresh eye injury. The IJ stated in his
decision:
The Court does recognize though that the respondent
recently has suffered an injury and it appears to be
an injury of some serious nature. The respondent’s
vision in his left [eye] is 20/200, pinholing 220/100,
which is improved from last week’s figure. How-
ever, there is a large central corneal scar and there is
a possibility that respondent will need a corneal
transplant. Thus, there is substantial indication that
respondent would suffer substantial hardship were he
to go to Peru where he may not be able to obtain the
exact medical care that is necessary to replace that
cornea if it is indeed damaged so severely that it
must be replaced.
Vilchez also complains about technical problems with the
video equipment that made some testimony difficult to hear.
7124 VILCHEZ v. HOLDER
It does appear that the IJ and the participants in the hearing
had some difficulty hearing each other at the beginning of the
proceeding, but the record indicates that they spoke up when
that was the case and worked cooperatively and successfully
to address the problem.
[6] Vilchez was represented by counsel, testified at length,
and had three witnesses speak on his behalf. See Vargas-
Hernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir. 2007)
(“Where an alien is given a full and fair opportunity to be rep-
resented by counsel, to prepare an application for . . . relief,
and to present testimony and other evidence in support of the
application, he or she has been provided with due process.”);
Almaghzar v. Gonzales, 457 F.3d 915, 921 (9th Cir. 2006)
(alien not deprived of due process when allowed to present
evidence and testify at length). He has failed to establish that
the outcome of his hearing “may have been affected” by the
fact that his hearing was conducted by video conference. Lac-
sina Pangilinan, 568 F.3d at 709 (internal quotation marks
omitted). We therefore hold there was no due process viola-
tion.
B. Denial of Cancellation of Removal
[7] Vilchez separately challenges the BIA’s denial of his
application for cancellation of removal. Vilchez does not con-
tend that the BIA applied an incorrect legal standard. Cf.
Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir.
2009). But he does contend that the agency “failed to consid-
er” certain factors, such as the hardship that his removal
would cause his son and mother. We disagree. The BIA men-
tioned Vilchez’s United States citizen son and “the hardships
likely to result to . . . his family.” We agree with the BIA that
the IJ’s lengthy decision indicates that he “thoroughly
reviewed” and “gave due consideration” to all of the positive
and negative equities in the record. An IJ “does not have to
write an exegesis on every contention.” Najmabadi v. Holder,
VILCHEZ v. HOLDER 7125
597 F.3d 983, 990 (9th Cir. 2010) (internal quotation marks
omitted).
On the merits, the IJ determined, in the exercise of his dis-
cretion, that Vilchez did not merit cancellation of removal.
The BIA affirmed. We do not have jurisdiction to review this
decision.
Conclusion
[8] We hold that the video-conference hearing in this case
did not violate due process. We further hold that the agency
considered the factors relevant to Vilchez’s application for
cancellation of removal. We lack jurisdiction to review the
BIA’s discretionary decision to deny his application.
Petition for Review DENIED in part and DISMISSED in
part.