LAW & POLICY
V. ASHCROFT: 9TH CIRCUIT RULES BIA VIOLATED DUE PROCESS BY REFUSING TO CONSIDER
NEW EVIDENCE ON APPEAL
Immigrants' Rights Update, Vol. 17, No. 2, April 8, 2003
The U.S. Court of Appeals for the Ninth Circuit has issued an en banc decision finding that the Board of Immigration Appeals violated the due process rights of a respondent by refusing to consider new evidence before denying his application for suspension of deportation. The decision turns in part on the fact that at the time the BIA issued its decision it had, and exercised, fact-finding authority independent from that of immigration judges. The decision also reflects the particular circumstances of the case.
The respondent in this case, a Mr. Ramirez-Alejandre, is a Mexican national who entered the United States approximately 23 years ago. He had substantial equities, including a U.S. citizen daughter and five lawful permanent resident brothers. In 1990, he was placed in deportation proceedings, and at his deportation hearing in 1992 he applied for suspension of deportation. The IJ granted the application, finding that Ramirez-Alejandre had established that he was of good moral character and had seven years of continuous physical presence in the U.S., and that deportation would result in extreme hardship to both him and his U.S. citizen daughter. The IJ also found that granting suspension was an appropriate exercise of discretion, describing Ramirez-Alejandre as "a role model" who "would be relegated to the grinding poverty of . . . Mexico without . . . any hope for anything in the future" were he to be deported. The INS appealed this decision to the BIA. Over the course of the eight years that the case was on appeal to the BIA, Ramirez-Alejandre on several occasions filed supplemental submissions of evidence to show additional hardship that would result from his deportation.
In 2000, the BIA issued a decision on the appeal. It upheld the IJ's rulings that Ramirez-Alejandre satisfied the good moral character and seven years' continuous physical presence requirements for suspension. However, the BIA found that he failed to establish that deportation would result in extreme hardship. In so ruling, the BIA stated that it did not consider the additional evidence submitted by the respondent while the case was on appeal because "this Board as an appellate body does not consider evidence submitted for the first time on appeal." Ramirez-Alejandre then filed a petition for review of this decision.
In ruling on the appeal, the court of appeals noted that, at the time of the BIA's ruling in this case, the BIA had authority to make factual determinations independent of those made by IJs. Moreover, under its precedent, the BIA was to determine whether a suspension applicant's deportation would result in extreme hardship based on the circumstances existing at the time of the BIA's ruling rather than being limited to the time of the initial application.
The court also found that the BIA's procedural practice left respondents with no clear guidance as to whether or how they could supplement the record on appeal. In some cases the BIA required the filing of a motion to reopen and in others it considered evidence submitted without such a motion. During the eight years that the appeal was pending, the Executive Office for Immigration Review imposed time and numerical restrictions on motions to reopen. Notably, in this case the BIA's refusal to consider the new evidence offered by Ramirez-Alejandre was not based on the form of his submission but rather on the "untrue" assertion that the BIA does not consider evidence submitted for the first time on appeal.
The court also found that the offered evidence was relevant and significant to the determination of extreme hardship and that it "unquestionably had the potential for likely altering the outcome under the BIA's own precedent" and Ninth Circuit case law concerning suspension of deportation. The court concluded that the BIA's failure to consider the evidence violated due process. The court remanded the case to the BIA to determine whether to consider the evidence that was offered, without applying the "categorical exclusion" that "this Board as an appellate body does not consider evidence submitted for the first time on appeal."
Ramirez-Alejandre v. Ashcroft, __ F.3d __, No. 00-70724 (9th Cir. Feb. 13, 2003).
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