Arellano-Mendoza v. Holder , 391 F. App'x 683 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ARACELI ARELLANO-MENDOZA, No. 05-76912
Petitioner, Agency No. A079-544-427
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 9, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and MARBLEY, District
Judge.**
Araceli Arellano-Mendoza, a Mexican citizen, who entered the United States
without being admitted or paroled, petitions from dismissal by the Board of
Immigration Appeals ('BIA') of her appeal of the Immigration Judge's ('IJ')
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Algernon L. Marbley, U.S. District Judge for the
Southern District of Ohio, sitting by designation.
denial of her motion to reopen her application for cancellation of removal. We
review the BIA's denial of a motion to reopen for abuse of discretion. Malhi v.
INS, 336 F.3d 989, 993 (9th Cir. 2003). We grant Arellano-Mendoza's petition,
reverse the BIA's dismissal, and remand to the BIA for further proceedings.
At the July 8, 2004, hearing, when the IJ scheduled the December 17, 2004,
removal hearing, the IJ clarified:
[A]ll evidence is due in court ten days prior to the hearing. . . . All
documents of residency of ten years must be proven by the respondent
and provided by the respondent. The Court gives a lot of credibility to
documents such as IRS filings, tax returns, W-2 forms, and any other
document. Just a statement from someone who said, well, this person
lived with me for ten years is not going to fly in this courtroom. You
need some other information to prove that the person did live in this
country. No matter what people do, you do buy things in the store and
there are receipts. So there are other ways of proving residence.
Transcript at 11-12 (emphasis added). Speaµing directly to Arellano-Mendoza, the
IJ advised:
[Y]ou've been scheduled for a removal hearing on December 17th,
2004, at 1 o'clocµ in the afternoon. If you fail to appear other than
exceptional circumstances beyond your control such as your own
serious illness or the death of an immediate relative and nothing less
compelling, otherwise you will be found ineligible for voluntary
departure, cancellation of removal, and any other legal adjustment of
status under immigration law for ten years after the date of entry of
the final order of removal.
Transcript at 12-13 (emphasis added).
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While required to appear at her December 17, 2004, removal hearing,
Arellano-Mendoza did not have complete documentation of her continuous ten-
year presence in the United States, in accordance with 8 U.S.C. y 1229b(b)(1)(A).
At the hearing, the IJ stated:
IJ: It is my understanding at this time that the respondent wishes to
withdraw her application for cancellation of removal and that is
without prejudice to the respondent reinstating it should she have all
her documents ready at some later time. The respondent is also
willing to accept a final order of voluntary departure.
....
There is no bond necessary for this voluntary departure because
I'm treating today as a master since the respondent requested
withdrawal of her application.
Transcript at 15, 16 (emphasis added). Addressing Arellano-Mendoza, the IJ
continued:
It is my understanding that . . . . you have some documents at
home regarding your ten years continuous residence and you, because
they relate to some immunization record of your older child, and also
you have a child in special education whom you wish to present
special evidence and you don't have that evidence ready to proceed
today, and that is why you withdrew your application today without
prejudice since it has been pending for over three years. Is that
correctá
Arellano-Mendoza: Yes.
IJ: And you understand that if you get everything ready, you may
reopen, maµe a motion to reopen with the Court. Do you understand
thatá
3
Arellano-Mendoza: Yes.
IJ: All right.
Transcript at 17 (emphasis added). In return for this agreement, Arellano-Mendoza
was granted voluntary departure to Mexico, and she additionally relinquished her
right to appeal the voluntary departure. Id. at 16, 17.
On March 7, 2005, Arellano-Mendoza moved to reopen her cancellation-of-
removal proceedings with new documentation supplementing her first, copious
submission that remained in the administrative record and is in the record on
appeal. Arellano-Mendoza represents that these two submissions of documents
cumulatively provide credible evidence of her continuous presence in the United
States for ten years. Obviously reviewing only the second, supplemental
submission of documents filed with Arellano-Mendoza's motion to reopen in
accordance with the IJ's agreement with her at the December 17, 2004, removal
hearing, a different IJ denied her motion, because she had failed to establish prima
facie eligibility for relief consisting of documentary evidence of ten years of
continuous residence in the United States. The BIA dismissed Arellano-
Mendoza's appeal on the same basis.
'The standard for establishing a prima facie case is whether the evidence
reveals a reasonable liµelihood that the statutory requirements for relief have been
4
satisfied.' Fernandez v. Gonzales, 439 F.3d 592, 600 n.6 (9th Cir. 2006) (citations
and internal quotation marµs omitted). 'In its determination, the BIA must taµe
into account all relevant factors. . . . [,] must indicate how it weighed these
factors[,] and indicate with specificity that it heard and considered petitioner's
claims. A conclusory statement by the BIA concerning favorable factors is
insufficient.' Arrozal v. INS, 159 F.3d 429, 433 (9th Cir. 1998) (citations omitted).
Because Arellano-Mendoza withdrew her petition for cancellation of removal and
agreed to voluntary departure, 'the IJ never ruled on [her cancellation-of-removal]
petition but instead granted' her voluntary departure. Medina-Morales v. Ashcroft,
371 F.3d 520, 527 (9th Cir. 2004). Although Arellano-Mendoza fulfilled her part
of the agreement stated by the first IJ, the second IJ erred in failing to review the
cumulative documents in the administrative record that evidenced Arellano-
Mendoza's continuous presence in the United States for ten years, and the BIA
perpetuated this error and abused its discretion by dismissing her appeal, resulting
in no review of the merits of Arellano-Mendoza's petition for cancellation of
removal.
We retain jurisdiction over 'constitutional claims or questions of law,' in
immigration proceedings. 8 U.S.C. y 1252(a)(2)(D). Therefore, we review
Arellano-Mendoza's due process argument de novo. Fernandez, 439 F.3d at 603.
5
'We have held that due process requires that an alien receive a full and fair
hearing,' which 'includes a reasonable opportunity to present evidence.' Singh v.
INS, 213 F.3d 1050, 1054 (9th Cir. 2000) (citations, internal quotation marµs, and
alteration omitted).
This case is specific to its facts. The IJ agreed to Arellano-Mendoza's
voluntary departure, because she did not have the complete documentation of her
ten-year residence in the United States at the December 17, 2004, removal hearing.
Arellano-Mendoza's voluntary departure and agreement not to appeal was the quid
pro quo for permitting Arellano-Mendoza to reopen her cancellation-of-removal
petition, when she could supplement her petition with the necessary
documentation. There was no requirement that she refile her previous supporting
documentation, which would have been duplicative, since it remained in her
administrative record. Because Arellano-Mendoza complied with the first IJ's
agreement and submitted documentation to establish her continuous ten-year
presence in the United States, the second IJ should have honored the agreement to
reopen Arellano-Mendoza's cancellation-of-removal proceedings.
Petition Granted; Reversed and Remanded to the BIA.
6
FILED
Arellano-Mendoza v. Holder AUG 11 2010
Case No. 05-76912 MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
Rawlinson, Circuit Judge, dissenting:
I respectfully dissent. I do not concur in the majority's conclusion that the
Immigration Judge (IJ) agreed to allow the Petitioner to file piecemeal applications
for cancellation of removal. There was no agreement to reopen the proceedings.
Rather, the judge allowed the Petitioner to withdraw the application and resubmit it
once she had gathered all her documents. The governing regulation expressly
precludes the piecemeal approach. See 8 C.F.R. y 1003.23(b)(3) (providing that a
motion to reopen 'must be accompanied by the appropriate application for relief
and all supporting documents') (emphasis added). The majority disposition
acµnowledges that the IJ conditioned the reinstatement of the application on
Petitioner having all her documents ready at some later time. See Majority
Disposition, p. 2. Absolutely no mention was made by the IJ or the petitioner of
supplementing the admittedly incomplete application. Because the Petitioner's
motion to reopen was not accompanied by all supporting documents, the Board of
Immigration Appeals acted within its discretion when it denied Petitioner's motion
to reopen.
I also part company with the majority's conclusion that the Petitioner was
1
not given an opportunity to be heard. The IJ specifically stated that the motion was
only denied 'until physical presence evidence is presented.' Rather than present
the physical presence evidence in a fully completed application, the Petitioner
elected to appeal. Any denial of an opportunity for a hearing was self-imposed.
2