Petition for Writ of Certiorari — Ahumada v. Mukasey (No. 07-617)

Supreme Court, U.S.

LED

Nh F I

WY) 07-617SEP 24 2007

ites OFFICE OF THE OLERK

In the Supreme Court of the Anited States

PATRICIO AHUMADA,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL OF

THE UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MATTHEW B. WEBER SCOTT A. MARKS

Counsel of Record Attorney

Weber & Marks, Weber & Marks

P.L.L.C. P.L.L.C.

6355 NW 36* St. 900 First Avenue South,

Suite 403 Suite 104

Miami, FL 33166 Seattle, WA 98134

(305) 677-9648 (206) 388-4135

LEGAL PRINTERS, Washington DC @ 202-747-2400 e legalprinters.com

QUESTION PRESENTED

Whether the Ninth Circuit applies an

incorrect legal standard to determine whether an

immigration judge’s conduct during an immigration

hearing has violated an alien’s constitutional right to

due process?

PARTIES TO THE PROCEEDINGS ©

Petitioner is Patricio Ahumada. Respondent is the

Attorney General of the United States. 1

' At the time this petition is filed, the post of Attorney General

is vacant subsequent to the resignation of Alberto Gonzales

who previously held the post.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................:sccsccscssssseessesvees i

PARTIES TO THE PROCEEDINGS ....................0066 ii

DE I BET betickctceeinsecvinevinvsnsncseciieennne ili

TABLE OF AUTHORITIEG ....ccccssesccsceccescocsessessesees Vv

PETITION FOR A WRIT OF CERTIORARI ......... 1

CITT Sic sirstssicesecencsnnsentvssistuncbontasnonenins 1

I eibiaiiiniidihaariainidepbeninebincammcsnniniiiinies 1

STATUTORY PROVISIONS INVOLVED .............. 1

STATEMENT OF THE CASE ................cccsceeseeeeeeees 2

1. Due Process in the Immigration Courts ........ 2

2. FROGS DORON GIIG csiescsccsevecesscocsssensesesecdsoes 7

3. The Decision of the Board of

Immigration Appeals ...............cccccccccceeeseseerees 9

4, The Memorandum Decision of the

Ninth Circuit Court of Appeals ..................+. 9

REASONS FOR GRANTING THE WRIT sibnibaidiesinlia 10

A. TE TE OE anicinstinessiicaevsaniininrisesiapaiinitasa 10

B. An Alien With Lawful Permanent Resident

Status Has A Right To Constitutional Due

Process In Removal Proceedings Under The

Fee PI cisiititctcniccciitinincctiniencinniichinuls 13

C. A Right To Due Process Under The Fifth

Amendment Provides For A Fair And

ROSIE TINE oicasicccnsneissiinticvacistensieictewness 13

D. The Rules Applied By The Circuits ............. 14

E. The Mere Right To Present One’s Case Does

Not Ensure That The Decision Is Fair And

SI si waliicicciscscticndviaslebicesdeninnieatiataiss 18

F. The Supreme Court Is The Most Suitable

Forum For Reconciling This Issue ............... 19

CIPO PIII sinnennitadciccseasubaicieacailiia Ga uidcdaaa 21

ill

APPENDIX

Memorandum Opinion of the Ninth Circuit Court

of Appeals, Dated March 13, 2007 ................ccceeeee Al

Judgment of the Ninth Circuit Court of Appeals,

Dated March 13, 2007 ............. SEAR SOR ITE A4

Decision of the Board of Immigration Appeals,

Dated danueary 34, 2006 ...00:.0crcccccccocssvssccsccsocesecseeees A7

Decision of the Immigration Judge, Dated

A ain tcleoeeonoen A9

Order Denying Panel Re-Hearing, Dated

Es ST, scciddicdnccecesisnsuh beceabcstiidanidliatisiiieaiilcséaiwas A32

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Aguilar-Solis v. INS,

168 F.3d 565 (1st Cir.1999) ..............c.ccccecsees 14

Ahmed v. Gonzales,

398 F.3d 722 (6% Cir. 2005) ...............cseccsseees 4

Alarcon-Chavez v. Gonzales,

403 F.3d 343 Bth Cir. 2005) ..........cccccccocccccerse 4

Al Khouri v. Ashcroft,

362 F.3d 461 (8th Cir.2004) .............. ce eeeeeee 17

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir., 2005) ............ccceccsecssss 3

Bernal-Vallejo v. L.N.S.,

Oe ae Oe Ce Ge. ND ccccivccrvceciscocsiversters 16

Colmenar v. I.N.S.,

210 F.3d 967 (Sth Cir. 2000) .........cc..scccccceee 15

Garrovillas v. INS,

156 F.3d 1010 (9th Cir.1998) ............... eee. 5

Gibson v. Berryhill,

TED svidincsescinctssssnclanvvetnceiinetes 13

Huang v. Gonzales,

403 F.3d 945 (7th Cir. 2005) ...............cccceeeee 4

Ibrahim v. U.S. L.N.S.,

821 F.2d 1547 (11th Cir.1987) .................... 18

In re Murchison,

Oe ri Be Cy LD ovccicsisdcccecnvenzceocosene 14

Ka Fung Chan v. INS,

G34 F.26 Z46 (Gtk Civ. 198))... ccccccccnccccecccsces 18

Kadia v. Gonzales,

2007 WL 2566015, (7 Cir. 2007) ................ 11

Kenneally v. Lungren,

967 F.2d 329 (Sth Cir.1992)..........cccccccsces. 14

Vv

Lopez v. Heinauer,

332 F.3d 507 (8th Cir.20038)...........csccccsees 17

Magallanes-Damian v. INS,

783 F.2d 931 (9th Cir.1986)...................06 16

Mapouya v. Gonzales,

487 F.3d 396 (6 Cir. 2007) ...............cccceseee 17

_ Marincas v. Lewis,

O02 F.3d 195 (Sd Cir. 1906).......ccccccccoccrssosees 14

Muhanna v. Gonzales,

| 399 F.3d 582 (3d Cir. 2005) .................0008 4,16

Nuru v. Gonzales,

404 F.3d 1207 (9th Cir. 2005) ...................000 5

Partington v. Gedan,

880-F.2d 116 (9th Cir.1989)..................0080 14

Ramirez-Durazo v. INS,

794 F.2d 491(9th Cir.1986)...............0.ccceees 16

Reno v. Flores,

507 U.S. 292 (1998) .......ccccccccccceeeee wiiiebuisitiaadia 13

Rivera v. Ashcroft,

387 F.3d 835 (Oth Cir.2004) ...........cccccccccccocess 6

Rodriguez-Galicia v. Gonzales,

422 F.5d 529 (7 Cir. 2005) ...........ccccvccssesceee 17

Schwetker v. McClure,

LS Es ne

Singh v. Gonzales,

403 F.3d 1081 (9th Cir.2005) ..............0..... 6

Smolniakova v. Gonzales,

422 F.3d 1037 (9th Cir. 20085)...................... 6

The Japanese Immigrant Case,

I le 13

Wong Wing v. United States,

BE Sie HED inniiscnsnepvecececsecerseennereteess 13

Withrow v. Larkin,

ABT TE, BE IIT ooo s vceceecseccconrtnns 13, 14

Yick Wo v. Hopkins,

Ee ee IED anstvticesunnservinnsntsseniecseds 13

Wang v. Attorney Gen.,

423 F.3d 260, (3d Cir. 2005) ...........ccccccsccscees 12

Zolotukhin v. Gonzales,

417 F.3d 1073 (9th Cir.2005) ...................066. 6

STATUTES

a he EEE cidicnnsccstuiinitiesbinesisitedaiinasceancabacniniaden 1

Be HE akc siitessicsnsinnimnrsanndsioventvencaionintmedonns 1

eas I icc sciivsironndvesectiesicntoveineicibesiinicbiibauies 1

a ae I wisibiisiteceecsapcsdisecitnvncensatcdennaniaiin 2

Vil

PE .** ION FOR A WRIT OF CERTIORARI

Patricio Ahumada, a non-citizen of the United

States of America, through counsel, respectfully

petitions for a writ of certiorari to review the

judgment of the Ninth Circuit Court of Appeals in

this case.

OPINIONS BELOW

The opinions of the court of appeals (App.,

infra, Al-A6) are unreported. The decisions of the

' Board of Immigration Appeals (App., infra, A7-A&)

and the immigration judge (App., cdi A9-A31) are

also unreported.

JURISDICTION

The judgment of the Court of Appeals was

entered on March 13, 2007. (App. A4). The decision

of the Court of Appeals denying rehearing was

entered on Jun 26, 2007. (App. A232). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The Immigration and Nationality Act (“INA”)

8 U.S.C. § 1229a establishes general procedures to

be followed during removal proceedings. Among

them:

8 U.S.C. §1229a(b)(1) grants an immigration

judge authority to: “administer oaths, receive

l

evidence, and interrogate, examine, and cross-

examine the alien and any witnesses.”

8 U.S.C. § 1229a(b)(4) provides an alien with

certain rights in removal proceedings. “The alien

shall have a reasonable opportunity to examine the

evidence against the alien, to present evidence on

the alien’s own behalf, and to cross-examine

witnesses presented by the Government ....

None of these sub-sections specifically defines

the due-process rights afforded an alien in removal

proceedings.

STATEMENT OF THE CASE

Applying Ninth Circuit “due process” law, the

panel held that Ahumada was not prevented from

reasonably presenting his case to the immigration

court, nor were his rights to due process violated.

The rules applied by the Ninth Circuit and other

courts to determine whether an immigration judge’s

conduct at a removal hearing denies the alien a fair

and impartial hearing are insufficient to protect the

alien’s constitutional right to due process. Certiorari

should be granted to explicate the full range of due

process rights afforded an immigrant in immigration

proceedings and the standards to be applied in

evaluating these claims.

# Due Process in the Immigration Courts.

On January 9, 2006, Attorney General Alberto

Gonzales sent a letter to all immigration judges

acknowledging the well-known and much publicized

2

problems that occur in some _ immigration

proceedings and explaining his decision to conduct a

comprehensive review of their work. The review

followed what had become well known in the circuit

courts and the Board of Immigration Appeals: that

some Immigration Judges’ work was falling well

below the standard required, and that the manner in

which some of these courts were run was seriously

deficient. Over the past decade many immigrants

have filed petitions and appeals alleging bias,

partiality, aggressive and demeaning attitudes on

the part of the immigration judges, and other acts

which violated immigrants’ rights to a full and fair

hearing on the merits with an impartial adjudicator.

In turn, the circuit courts have chastised

immigration judges on numerous occasions. Noting

that its criticisms of both the Board of Immigration

Appeals and Immigration Judges have "frequently

been severe," the Seventh Circuit stated:

The tension between judicial and

administrative adjudicators is not due

to judicial hostility to the nation's

immigration policies or to a

misconception of the proper standard of

judicial review of administrative

decisions. It is due to the fact that the

adjudication of [immigration] cases at

the administrative level has fallen

below the minimum standards of legal

justice. ... [I]t cannot be in the interest

of the immigration authorities, the

taxpayer, the federal judiciary, or

citizens concerned with the effective

3

enforcement of the nation's immigration

laws for removal orders to be routinely

nullified by the courts ... [T]he power of

correction lies in the Department of

Homeland Security, which prosecutes

removal cases, and the Department of

Justice, which adjudicates them.

Benslimane v. Gonzales, 430 F.3d 828,

829 (7*» Cir., 2005).

The Seventh Circuit is not alone in its

criticisms, as a number of other courts also have

expressed concern over the increasing number of

below-standard decisions of Immigration Judges that

they are now forced to review. See eg. Muhanna v.

Gonzales, 399 F.3d 582 (8d Cir. 2005) [IJ’s

premature decision to halt proceedings based on a

flawed frivolousness finding was premature and

resulted in a denial of due process]; Alarcon-Chavez

v. Gonzales, (403 F.3d 343 5th Cir. 2005) [Arbitrary

exercise of judicial fiat at the expense of a powerless

person to hold that the petitioner failed to appear,

where his 20-minute tardiness was only “slight,” and

the IJ had just left the bench, was still nearby and

the arrival was still within business hours. Judges

are appointed, not anointed.]; Ahmed v. Gonzales,

398 F.3d 722 (Gh Cr. 2006) {ils

mischaracterization of testimony was biased and

deprived petitioners of due process.]; Huang uv.

Gonzales, 403 F.3d 945 (7th Cir. 2005) [IJ’s adverse

credibility determination relied too heavily on

personal opinion and information outside of the

record, IJ aggressively questioned petitioner and did

not allow a _ response, and the corroboration

4

requested by the IJ was unreasonable.]; Nuru uv.

Gonzales, 404 F.3d 1207 (9th Cir. 2005) [IJ’s

treatment of the petitioner during the hearing was

arbitrary and capricious, making highly caustic

comments without substance.]

The Immigration Judge in this case, Judge

Anna Ho, has been rebuked by the Ninth Circuit

several times:

In light of the foregoing, it is

appropriate to echo the words of this

court in Paramasamy and express a

similar worry that “these passages

demonstrate the IJ's ‘predisposition to

discredit’ the testimony, rather than

any lack of credibility on the part of the

witnesses.” 295 F.3d at 1051 (quoting

Garrovillas v. INS, 156 F.3d 1010, 1015

(9th Cir.1998)). In Paramasamy, this

court found that the IJ's adverse

credibility finding was not supported by

substantial evidence because, among

other things, it relied upon “perceived

inconsistencies not based on _ the

evidence.” Paramasamy, 295 F.3d at

1052. In this case, as in Paramasamy,

“the facts as they appear in the record

do not support the [IJ's] articulated

basis for an adverse. credibility

determination.” Jd. That the IJ rebuked

in Paramasamy is the same IJ who

presided over Smolniakova's asylum

hearing is a fact not lost on this court

In fact, the IJ in this case, Anna Ho,

5

has been reversed by this court at least

three times in the last year for reasons

similar to those that compel our

reversal here. Most recently, in

Zolotukhin v. Gonzales, 417 F.3d 1073

(9th Cir.2005), we held that IJ Ho

violated a Russian asylum applicant's

due process right to a full ara fair

hearing because she “improperly

prejudged the petitioner's case” and

“excluded the testimony of several key

witnesses.” Just one year earlier, in

Rivera v. Ashcroft, 387 F.3d 835, 842

(9th Cir.2004), amended by 394 F.3d

1129, 1135 (9th Cir.2005), we held that

IJ Ho failed to “conu.2zct herself as an

impartial judge but rather as a

prosecutor anxious to pick holes in the

petitioner's story.” Moreover, in Singh

vu. Gonzales, 403 F.3d 1081, 1090 (9th

Cir.2005), this court reversed IJ Ho's

adverse credibility finding iff part

because her “focus on minutely

disparate dates” in ~the asylum

applicants’ testimony regarding seven-

year-old events reflected “a flawed

approach to credibility determination.”

Given this line of cases, we cannot help

but question whether this IJ has, at

least in some instances, improper

hostility towards asylum applicants

who appear before her.”

Smolniakova v. Gonzales, 422 F.3d

1037, 1048 (9% Cir. 2065).

6

Against this backdrop, Ahumada, the

petitioner in this case, was placed into removal

proceedings.

2. Factual Background.

Ahumada is a native and citizen of Chile who

has continuously resided in the United States since

1974, when he was 16 years old. He acquired lawful

permanent residence on April 1, 1978, through a

petition filed by his United States citizen sister.

Atsumada currently resides in Seattle, Washington,

and has lived in Washington State since his arrival

in the United States. Ahumada is married to Keren

Zuniga with whom he has three United States

citizen children, Brandon aged 1, Ashley aged 7 and

Jonathon aged 9. (App. A20). Ahumada is a home-

owner and has maintained continuous employment

in this country. (App. A21). Ahumada has no close

relatives in Chile; all of his immediate family reside

in the United States and are United States citizens.

(App. A21).

Mr. Ahumada was placed in removal

proceedings on September 20, 1995, by the filing of

an Order to Show Cause. The Service alleged that

Mr. Ahumada was deportable for having been

convicted of two crimes of moral turpitude: an

August 6, 1979 misdemeanor theft charge, and a

May 21, 1990 statutory rape conviction. On

February 26, 1996, at his initial court appearance,

Mr. Ahumada requested an immigration waiver

pursuant to 212(c) of the Immigration and

Nationality Act (“INA”). On January 13, 1997, the

Service amended the charge against Mr. Ahumada

to include an allegation that his statutory rape

7

conviction was an aggravated felony under the INA.

(App. A9). Immigration Judge Anna Ho upheid the

amended _ charge, pretermitted |§Ahumada’s

application for relief under 212(c), and ordered

Ahumada deported. (App. A10).

After further litigation, the matter was

remanded back to Immigration Judge Anna Ho for a

hearing on Ahumada’s application for 212(c) relief.

That hearing was held on October 9, 2001. Ina

decision dated October 11, 2001, (App. AY).

Immigration Judge Anna Ho denied Ahumada’s

application for 212(c) relief, based on an erroneous

threshold standard of “extreme hardship” which is

not applicable to this type of relief. (App. A29-31).

During the hearing on October 9, 2001, :

Immigration Judge Anna Ho. displayed an open

hostility for Ahumada based on the crime he had

committed. Throughout the proceeding she

appeared to be biased against Ahumada, and pre-

judged the case and her decision prior to hearing all

of the testimony and taking all of the evidence

offered by Ahumada. She repeatedly interjected

herself into the proceedings, often interrupting

Ahumada’s attorney's questioning, while

increasingly taking on an adversarial role. This,

despite her role as an impartial adjudicator and the

Government being represented by competent

counsel. It is clear that Immigration Judge Anna Ho

did not like Mr. Ahumada or the fact that he had

committed a crime against a child. Her mind made

up, her decision was foreclosed before any testimony

was ever heard.

3. The Decision of the Board of

Immigration Appeals.

In a Per Curiam decision, the Board of

Immigration Appeals (“BIA”) affirmed the decision of

Immigration Judge Anna Ho. (App. A5). It found

that, except with regard to the immigration judge’s

reference to “extreme hardship,” Ahumada failed to

establish that he warranted a waiver under 212(c).

The BIA further held that Ahumada was not denied

due process of law, and noted that “he was able to

fully present his case before the immigration judge.”

Id.

4, The Memorandum Decision of the Ninth

Circuit Court of Appeals.

The Ninth Circuit upheld the BIA’s decision

with regard to Immigration Judge Anna Ho’s use of

an improper legal standard in denying his

application for relief. The court, in reference to

Ahumada’s argument that he had been denied due

process based upon Judge Ho’s conduct during the

removal hearing, stated that: “her conduct of

Ahumada’s deportation hearings, while unfortunate

in some respects, did not prevent him from

reasonably presenting his case or violate due

process.” (App. A2).

In a one page order the Ninth Circuit denied

Mr. Ahumada’s Petition for Panel Re-Hearing. (App.

A32).

REASONS FOR GRANTING THE WRIT

The standards applied by the courts to

determine whether an immigration judge’s conduct

at a removal hearing denies the alien a fair and

impartial hearing are insufficient to protect the

alien’s constitutional right to due process. Certiorari

should be granted to explicate the full range of due

process rights afforded an immigrant in immigration

proceedings and the standards to be applied in

evaluating these claims.

A, There is a Problem

The problem of intemperate immigration

judges who through their. behavior, cloud our notions

of a fundamentally fair hearing, can best be

remedied by this court squarely addressing the

issue. That it has not yet been addressed has

allowed the problem to continue. While there might

be many ways to fix this recurring problem, it is

through the legitimacy provided by the decisions of

the highest tribunal which will serve to protect the

interests of those involved, the poor huddled masses.

While the executive must get its own house in

order to be sure, it is only the federal courts which,

by statute review the decisions of the immigration

judges, which can render such noxious conduct

illegitimate. In this we ask that the Court address

this issue with a voice which will be heard in a way

which, try as they might, cannot be conveyed by the

circuits.

Several Circuits, have of course, tried to

convey the extent of the problem. Judge Posner of

the Seventh circuit, has been among the loudest

10

voices among the judges who review the immigration

judges’ decisions. His explanation of the matter in

Benslimane, having been noted, we mention a recent

case:

Wang vu. Attorney General, he condemned

The immigration judge failed to

distinguish between material lies, on

the one hand, and innocent mistakes,

trivial inconsistencies, and harmless

exaggerations, on the other hand. In

effect, he applied the discredited

doctrine of falsus in uno, falsus in

omnibus (false in one thing, false in all

things), which Wigmore called

“primitive psychology, and-in a

characterization that we endorsed... an

“absolutely false maxim of life.”

...Anyone who has ever tried a case or

presided as a judge at a trial knows

that witnesses are prone to fudge, to

fumble, to misspeak, to misstate, to

exaggerate. If any such pratfall

warranted disbelieving a witness's

entire testimony, few trials would get

all the way to judgment.

Kadia v. Gonzales, 2007 WL 2566015,

at 3 (7 Cir. 2007).

Judge Fuentes of the Third Circuit has made

a similar diagnosis of the extent of the problem. In

a

disturbing pattern of IJ misconduct," reporting that:

Time and time again, we have

cautioned immigration judges against

1]

making intemperate or humiliating

remarks during immigration

proceedings," and, "Three times this

year we have had to admonish

immigration judges who failed to treat

the asylum applicants in their court

with the appropriate respect." Judge

Fuentes of the Third Circuit made such

a diagnosis in Wang v. Attorney

General, where he condemned "a

disturbing pattern of IJ misconduct,"

reporting that, "Time and time again,

we have cautioned immigration judges

against making intemperate’ or

humiliating remarks during

immigration proceedings," and, "Three

times this year we have had to

admonish immigration judges who

failed to treat the asylum applicants in

their court with the appropriate

respect." Wang vu. Attorney Gen., 423

F.3d 260, 267-68 (8d Cir. 2005)

(reversing BIA affirmance of an

expulsion order where an immigration

judge had _ bullied, smocked, and

humiliated an asylum-seeker whose

wife had been forcibly sterilized in

China)..

Judge Fuentes then cited thirteen cases

contributing to this pattern.

12

B. An Alien With Lawful Permanent

Resident Status Has A _ Right To

Constitutional Due Process In Removal

Proceedings Under The Fifth

Amendment.

While Congress has plenary power to control

immigration, it has been established for more than a

century that aliens in the United States are entitled

under the Fifth Amendment to due process of law in

removal proceedings. Reno v. Flores, 507 U.S. 292,

306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); See The

Japanese Immigrant Case, 189 U.S. 86, 100-101, 23

S.Ct. 611, 614, 47 L.Ed. 721 (1903); Yick Wo uv.

Hopkins, 118 U.S. 356, 369. 6 S.Ct. 1064, 30 L.Ed.

220 (1886) (“[A]liens who have once passed through

our gates, even illegally, may be expelled only after

proceedings conforming to traditional standards of

fairness encompassed in due process of law”). See

Wong Wing v. United States, 163 U.S. 228, 238, 16

S.Ct. 977, 41 L.Ed. 140 (1896).

This requirement applies not only to courts,

but also to administrative agencies. Withrow uv.

Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 1464, 43

L.Ed.2d 712 (1975); Gibson v. Berryhill, 411 U.S.

564, 578-79, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488

(1973).

C. A Right to Due Process Under the Fifth

Amendment Provides for a Fair and

Impartial Hearing.

The right to due process in administrative

removal hearings is founded on fundamental

fairness. A fair trial in a fair tribunal is a basic

13

requirement of due process. Fairness of course

requires an absence of actual bias in the trial of

cases. Our system of law has always endeavored to

prevent even the probability of unfairness. In re

Murchison 349 U.S. 1383, 136, 75 S.Ct. 623,

625 (U.S. 1955). As Schweiker v. McClure, 456 U.S.

188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982)

recognized, it is well established that “due process

demands impartiality on the part of those who

function in judicial or quasi-judicial capacities.” (See

also Marincas v. Lewis, 92 F.3d 195, 204 (3d

Cir.1996), describing the need for a neutral judge as

one of the most basic due process protections). As

judicial officers, Immigration Judges have a

“responsibility to function as neutral and impartial

arbiters” and “must assiduously refrain from .

becoming advocates for either party.” Aguilar-Solis

uv. INS, 168 F.3d 565, 569 (1st Cir.1999).

In attempting to make out a claim of

unconstitutional bias, a plaintiff must “overcome a

presumption of honesty and integrity” on the part of

decision-makers. Withrow v. Larkin, 421 U.S. 35,

47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). The

plaintiff must show that the adjudicator “has

prejudged, or reasonably appears to have prejudged,

an issue.” Kenneally v. Lungren, 967 F.2d 329, 333

(9th Cir.1992) (quoting Partington v. Gedan, 880

F.2d 116, 135 (9th Cir.1989) (Reinhardt, J.

concurring and dissenting)), cert. denied, 506 U.S.

1054, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993).

D. The Rules Applied By the Circuits

When reviewing whether an alien was denied

a fair hearing by the conduct of an immigration

14

judge, those circuits which have addressed the issue

look to see whether the alien was denied an

opportunity to present his case. If the immigration

judge’s actions were such that the alien was directly

prevented from presenting evidence or testimony,

then due process violations are found if prejudice is

established.

However, rather than focusing on bias and

impartiality which affects the decision, this standard

focuses on improper procedural issues. Thus,

according to this standard, it is the denial of

procedural due process which defines an unfair

hearing. The substantive right to a fair decision that

was made through a process devoid of prejudgment

is mostly ignored. Thus it is active interference with

establishing a case, rather than statements which

indicate premature judgment which establish the

claim. In Colmenar v. I.N.S., 210 F.3d 967, 971 (9%

Cir. 2000), it was the judge’s denial of testimony

which established bias:

when testimony began, the IJ behaved

not as a neutral fact-finder interested

in hearing the petitioner's evidence, but

as a partisan adjudicator seeking to

intimidate Colmenar and his counsel.

The IJ refused to let Colmenar testify

about who he believed had thrown the

Molotov cocktail at him, despite the

circumstantial evidence linking the

incident to the threatening letter. He

also refused to let Colmenar testify

about anything that was included in his

written application. This prevented

Colmenar from elaborating on the fears

15

he had expressed in his application. It

also frustrated his attorney to the point

that he was forced to end his

examination of Colmenar after only a

handful of questions. Jd. See also

Ramirez-Durazo v. INS, 794 F.2d 491,

500 (9th Cir.1986) (quoting Magallanes-

Damian v. INS, 783 F.2d 931, 933 (9th

Cir.1986).

The First, Third, and Seventh Circuits also

apply essentially the same rule. In Bernal-Vallejo v.

I.N.S.,195 F.3d 56, 63 (1% Cir. 1999), the First

Circuit held that “this court has recognized that

there is a due process violation if the proceeding was

so fundamentally unfair that the alien was

prevented from reasonably presenting his case.” Id.

In addition to the requirement that the conduct must

prevent the alien from presenting her case, in

Muhanna v. Gonzales, 399 F.3d 582, 587 (8rd Cir.

2005), the 3rd Circuit established a traditional due

process analysis for removal proceedings: “An alien:

(1) is entitled to factfinding based on a record

produced before the decisionmaker and disclosed to

him or her; (2) must be allowed to make arguments

on his or her own behalf; and (3) has the right to an

individualized determination of his or her interests.”

The Seventh circuit has gotten slightly more

involved in the analysis.

The IJ does not violate due process by

focusing the hearing in this manner to

focus the proceedings and exclude

relevant evidence. Id. “In the second

type of situation, by contrast, the

16

immigration judge violates due process

by barring complete chunks of oral

testimony that would support the

applicant's claims. This categorization,

while helpful, is imprecise and the

appropriate characterization of the IJ's

action is, in essence, a matter of degree.

In the end, we must determine

whether, given the _ totality of

circumstances, the petitioner had a full

and fair opportunity to put on her case.

Rodriguez Galicia v. Gonzales, 422 F.3d

529, 538 (7* Cir. 2005).

The Eighth Circuit, in contrast, has put it

rather vaguely: “To demonstrate a violation of due

process, an alien must demonstrate both a

fundamental procedural error and that the error

resulted in prejudice.” Al Khouri v. Ashcroft, 362

F.3d 461, 466(8 Cir. 2004), citing Lopez uv.

Heinauer, 332 F.3d 507, 512 (8th Cir. 2003). The

requirement for prejudice, however, is somewhere in

the middle of the extremes. “Actual prejudice exists

where defects in the deportation proceedings may

well have resulted in a deportation that would not

otherwise have occurred.” Id.

The analysis in other circuits tends to focus

more on whether a high standard of prejudice has

been established. In the Sixth Circuit, a due process

violation is found if it is proven that the judge’s

actions in preventing testimony or otherwise actively

interfering with presenting the case would have

changed the outcome. Mapouya v. Gonzales, 487

F.3d 396, 416 (6% Cir. 2007). Likewise the Fifth and

17

Eleventh Circuits. To prevail on a due process

challenge to a deportation proceeding, “an alien

must show substantial prejudice.” Ka Fung Chan v.

INS, 634 F.2d 248, 258 (5th Cir.1981). “[H]e must

establish that... the outcome would have been

different.” Ibrahim v. U.S. I.N.S., 821 F.2d 1547,

1550 (11 Cir.1987).

E. The Mere Right To Present One’s Case

Does Not Ensure That The Decision Is

Fair And Impartial.

While the right to present one’s case is of

course a factor to determine whether a hearing is

fair, it cannot be used as the baseline rule to

determine whether a judge’s conduct during the

hearing rendered the hearing unfair. For example, a

judge may allow testimony, but may, by her

questions, guide it to where it would not have gone,

or by intemperate remarks, prevent it from going

where it would have. A judge may also display an

outward bias which taints the entire proceedings.

We assert that the rule regarding due process

should be more expansive. As a general rule, the

hearing must appear to be fair. Statements which

indicate the issue has been prejudged before the

hearing has completed, may by themselves provide

prima facie evidence that the matter was prejudged.

The more the judge takes on a prosecutorial role, the

less the judge appears a neutral adjudicator. While

these factors are not exclusive, they are indicative of

the types of things which may indicate that the

judge is not impartial.

18

F, The Supreme Court Is The Most Suitable

Forum For Reconciling This Issue.

The sole question presented in this petition:

what shall be the rule applied by the lower courts to

determine if an immigration judge’s conduct during

a hearing infringes on due process, is necessarily an

issue for this court to resolve.

Congress through statute, has established the

immigration courts, and through its purse, has

funded them. The judiciary, in its most natural and

traditional role, is left with reviewing the decisions

which issue there-from and ensuring that these

decisions conform to the legal standards mandated

by the constitution. Indeed, there is no inquiry

better suited to the Court than determining the

appropriate rule of law to be applied by the inferior

courts in determining the constitutionality of a law

or a legal process, such as the one at issue.

The Attorney General cannot resolve this, for

the executive is constrained by the limitations of its

regulatory authority which is constrained by

statutes provided by Congress. Regulations and

statutes can and must consider the body of

constitutional law, of course, but they cannot define

it, for it is the law of the constitution which defines

them.

For manyyears, the Court has maintained

that deportation proceedings shall comport with due

process. In this, stare decisis holds sway. The lower

courts, so charged, have thus gone forth and applied

their views as to the nature of due process in these

proceedings, often, with mixed results. While there

is but one set of agency regulations, there are many

circuits app ying the fundamental constitutional

19

requirement for due process and they are yet of one

mind on how to define a fair hearing. Thus, the

executive is necessarily constrained in regulating

away the problem of misconduct during a hearing

with a regulation, not by the narrowness of the

judicial interpretations, but rather by their subtle

inconsistency. It is this nature of agency

adjudication and rulemaking which requires a

background of unified judicial rules of constitutional

law, itself a fundamental necessity for preper

functioning of the executive.

In contrast, the need for absolutely consistent

interpretation is less dire when the adjudications

themselves begin and end in the traditional courts of

law. The courts themselves simply apply the body of

law in their particular jurisdiction. Should, the law

be unclear, it is immediately resolved by the next

level of appeal, and should that not suffice, to the

next. However, the problems created by national

regulations which mandate procedures for executive

employees which have been held invalid in one

circuit, rarely appear for the courts fix the mess.

The common perception that the law is

applied free of bias and impartially is the most

fundamental necessity if Law is to exist. We

acknowledge that an issue such as this may be seen

as a chastisement of the agency, but such a view

misses the mark for in no way can it be

overreaching. When it is judges judging judges, the

implication is a much more profound and positive

thing. For what really is at stake is something that

while frequently addressed in the margins and is

often lost from the view on the bench: but is readily

apparent from those sitting elsewhere: fair

judgments require fair judges.

20

Thus, if a perception exists that the judges are

anything but fair, it is the job of the Court to

eviscerate that notion. Granting certiorari and

holding forth on this issue, is how we propose it

should be done.

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

MATTHEW B. WEBER, Counsel of Record

Weber & Marks, P.L.L.C.

6355 NW 36 St. Suite 403

Miami, FL 33166

(305) 677-9648

SCOTT A. MARKS, Attorney

Weber & Marks; P.L.L.C.

900 First Avenue South, Suite 104

Seattle, WA 98134

(206) 388-4135

21

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[DATE STAMP]

FILED

MAR 13 2007

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

PATRICIO AHUMADA,

Petitioner,

No. 05-75003

Vv. Agency No. A20-954-215

MEMORANDUM’

ALBERTO R. GONZALES, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 5, 2007~

Seattle, Washington

Before: O'SCANNLAIN, TASHIMA, and BERZON,

"This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

“This panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

A-1

Circuit Judges.

Patricio Ahumada, a native and citizen of

Chile, petitions for review of an order of the Board of

Immigration Appeals ("BIA") dismissing his appeal

from an immigration judge's ("IJ") decision denying

him a waiver under former INA § 212(c). We dismiss

the petition for review in part and deny it in part.

To the extent that Ahumada challenges the

agency's denial of a § 212(c) waiver on the merits, we

lack jurisdiction to review this claim. See Kalaw v.

INS, 133 F.3d 1147, 1150 (9th Cir. 1997).

Ahumada's contention that the BIA should

have remanded his case because the IJ applied an

incorrect legal standard is unpersuasive. The BIA

acted properly in adopting and affirming the IJ's

decision “[e]xcept with regard to her references to

‘extreme hardship.” See EHlnager v. INS, 930 F.2d

784, 787 (9th Cir. 1991). ("[T]he BIA has the power

to make independent determinations regarding the

legal sufficiency of evidence .... [and] has the power

to apply the correct standard regardless of the law

applied by the immigration judge."). In addition,

Ahumada is incorrect in asserting that the BIA

entered an initial deportation order in this case.

We have reviewed the record of proceedings

before IJ Anna Ho and conclude that her conduct of

Ahumada's deportation hearings, while unfortunate

in some respects, did not prevent him from

reasonably presenting his case or violate due

process. See Melkonian v. Ashcroft , 320 F.3d 1061,

A-2

1072 (9th Cir. 2003) ("The IJ did question Melkonian

aggressively and sometimes harshly. Nonetheless,

this does not, on the facts of this case, rise to the

level of a due process violation."); cf Colmenar v.

INS, 210 F.8d 967, 971-72 (9th Cir. 2000)

(concluding that due process was violated because

the IJ, inter alia, "forced [counsel] to end his

examination of Colmenar after only a handful of

questions").

PETITION FOR REVIEW DISMISSED in

part; DENIED in part.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIO AHUMADA,

Petitioner,

No. 05-75003

v. Agency No. A20-954-215

JUDGMENT

ALBERTO R. GONZALES, Attorney

General, :

Respondent.

[DATE STAMP]

RECEIVED

JUL 09 2007

/s/

Upon Petition for Review of a Decision of the

Board of Immigration Appeals

This cause came on to be heard on the Transcript of

the Record from the Immigration and Naturalization

Service and was duly submitted.

On consideration whereof, it is now here ordered and

adjudged by this court that the petition for review of

the said decision of the Board of Immigration

Appeals in this cause be, and hereby is DISMISSED

in part; DENIED in part.

Filed and entered 03/13/07

[JUSTICE

DEPT. SEAL]

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5201 Leesburg Pike, Suite 1300

Falls Church, Virginia 22041

Rios ITI, Manuel F., Esquire Office of the District

811 First Avenue Counsel/SE

Suite 200 1000 Second Avenue

Seattle, WA 98104-0000 Suite 2900

Seattle, WA 98104

Name: AHUMADA, PATRICIO R. A20-954-215

Date of this notice: 01/24/2005

Enclosed is a copy of the Board's decision and order

in the above-referenced case.

Sincerely,

/s/

Frank Krider

Chief Clerk |

[DATE STAMP]

RECEIVED

DEPARTMENT OF JUSTICE

05 MAY 25 AM 8:49

A-5

Enclosure

Panel Members:

HOLMES, DAVID B.

A-6

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A20 954 215 - Seattle Date: JAN 24 2005

In re: AHUMADA, PATRICIO R.

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Rios III, Manuel

F., Esquire

ORDER:

PER CURIAM. Except with regard to her

references to “extreme hardship," we adopt and

affirm the decision of the Immigration Judge insofar

as she concluded that the respondent failed to

establish that he warranted a waiver under section

212(c) of the Immigration and Nationality Act, 8

U.S.C. § 1182(c), in the exercise of discretion (IJ. at

21-22). See Matter of Burbano, 20 I&N Dec. 872, 874

(BIA 1994) (noting that adoption or affirmance of a

decision of an Immigration Judge, in whole or in

part, is "simply a statement that the Board's

conclusions upon review of the record coincide with

those which the Immigration Judge articulated in

his or her decision"). Even considering the

A-7

undeniable hardship the respondent's family

members will face as a result of his removal from the

United States, particularly considering the

seriousness of his statutory rape conviction, we are

not persuaded that a grant of relief is in the best

interests of this country. See Matter of Marin, 16

I&N Dec. 581 (BIA 1978). Finally, we do not find

that the respondent's hearing deprived him of due

process, and note that he was able to fully present

his case before the Immigration Judge. Accordingly,

the appeal is dismissed.

/s/

FOR THE BOARD

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

IMMIGRATION COURT

Seattle, Washington

IN THE MATTER OF:

PATRICIO R. AHUMADA,

Charges:

Application:

Respondent

Date: October 11, 2001

File No.: A 20 954 215

IN REMOVAL PROCEEDINGS

Section 237(a) (2) (A) (iii) of the

Immigration and Nationality Act (Act),

as amended, in that you have been

convicted of an aggravated felony as

defined in section 101(a) (43) (F) of the

Act, a crime of violence (as defined in

section 16 of title 18, United States

Code, but not including a purely

political offense) for which the term of

imprisonment was at least one year.

212(c) waiver pursuant to

Magana-Pizano

ON BEHALF OF RESPONDENT:

Michael Johnson-Ortiz, Esq.

605 First Ave., Ste. 350

Seattle, WA 98104

ON BEHALF OF INS:

Robert F. Peck, Esq.

1000 2™ Ave., Ste. 2900

Seattle, WA 98104

ORDER OF THE IMMIGRATION JUDGE

On March 31, 1997, this court issued a

decision pretermitting the respondent's application

for a 212(c) waiver. On December 26, 2000, the

Board of Immigration Appeals reopened the matter

on motion of the respondent, without opposition from

the Immigration and Naturalization Service.

(Remand Exhibit 1)

The respondent was convicted of an

aggravated felony, and the motion to reopen is

specifically on the issue of a waiver of deportability

under 212(c) pursuant to Magana-Pizano v. INS, 200

F.3d 1133 (9" Cir. 1999).

On September 27, 2001, the respondent filed

his Form I-191, Application for Advance Permission

to Return to Unrelinquished Domicile, together with

215 pages of supporting documents, which has been

accepted as Remand Exhibit 2. On September 28,

2001, the respondent filed a _ supplemeiital

pre-hearing statement, a total of 36 pages, which has

been admitted as Remand Exhibit 2A. On October 9,

2001, the respondent filed second supplemental

prehearing statement, a total of 11 pages, which has

been admitted as Remand Exhibit 2B. On the same

date, the respondent filed a third supplemental

A-10

pre-hearing statement, a total of 8 pages, which has

been admitted as Remand Exhibit 2C.

After the first merits’ hearing, the Service

submitted the entire transcript of the respondent's

criminal proceedings, which has been admitted as

Exhibit 3.

STATEMENT OF LAW

MAGANA-PIZANO CASE

In 1996, Congress passed the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 (1996) (AEDPA). Section

440(d) of AEDPA provided that an "alien who is

deportable by reason of having committed any

criminal offense covered in section 241 (a) (2) (A)

(iii), (B), (C), or (D), or any offense covered by section

241(a) (2) (A) (ii) for which both predicate offenses

are covered by section 241(a) (2) (A) (i)" is not

eligible for a section 212(c) waiver. Thus, section 440

(d) amended INA section 212(c) to eliminate

discretionary relief for an alien convicted of, inter

alia, an aggravated felony.

In a recent decision, however, the United

States Court of Appeals for the Ninth Circuit held

that the restrictions on section 212(c) relief added by

AEDPA section 440(d) were not intended to apply to

aliens whose deportation proceedings were pending

when AEDPA was enacted. Magana-Pizano v. INS,

200 F.3d 603, 611 (9“ Cir. 1999). Thus, those aliens

whose deportation proceedings were pending on or

before April 24, 1996 (the date of AEDPA's

A-11

enactment) may apply for section 212(c) relief.

[Emphasis Added]

The Court also discussed whether the

retroactive application of AEDPA section 440(d)

could apply to proceedings where the alien, although

not in deportation proceedings until after the law's

effective date, had pled guilty to a crime before

AEDPA's enactment. Id. at 612-613. [Emphasis

Added] The Court held that section 440(d) should

not be applied in such deportation proceedings —

even though the proceeding did not begin until after

AEDPA's enactment - if the alien could

“demonstrate that they entered guilty or nolo

contendere pleas in reliance upon the relief afforded

by INA §212(c)”. [Emphasis added] /d. at 613.

The proceedings in Magana-Pizano were

initiated against the alien before IIRIRA's * general

effective date of April 1, 1997 and the final

deportation or exclusion order was filed after

October 30, 1996. Magana-Pizano at 607. The

proceedings were therefore governed by IITRIRA's

transitional rules.

WAIVER OF INADMISSIBILITY UNDER 212(c)

An alien who is inadmissible under this

section may seek a waiver of inadmissibility under

‘Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009

(Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No.

104-302, 110 Stat. 3656 (IIRIRA).

A-12

section 212 (h) of the Act. Section 212(c) may be used

to waive inadmissibility which would otherwise

preclude adjustment of status. See Osuchukwu v.

INS, 744 F.2d 1136, 1139 (5th Cir. 1984); Matter of

Goldeshtein, 20 I&N Dec. 382 (BIA 1991), rev'd on

other grounds, 8 F.3d 645 (9th Cir. 1993); Matter of

Parodi, supra, Matter of Sanchez, 17 I&N Dec. 218

(BIA 1980); Matter of Shaughnessy, 12 I&N Dec. 810

(BIA 1968).

Section 212(c) is a waiver of criminal grounds

of excludability at the time of the alien's adjustment.

See Matter of Balao, 20 I&N Dec. 440 (BIA 1992);

Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980);

Matter of Parodi, 17 1&N Dec. 608 (BIA 1980.

The respondent has the burden of establishing

that a grant of a waiver of inadmissibility is

warranted in the exercise of discretion under section

212(c) (1) (B) of the Immigration and Nationality

Act. The Immigration Judge must balance the

adverse factors evidencing respondent's

undesirability as a permanent resident with the

social and humane considerations presented on his

behalf. The Court then determines whether the

grant of relief in the exercise of discretion appears to

be in the best interests of this country.

Once respondent has established extreme

hardship and eligibility for section 212 (c) relief, it

does not create any entitlement to that relief.

Establishing extreme hardship is but one favorable

discretionary factor to be considered.

A-13

The respondent must bring forward equities

to establish that he merits a favorable exercise of

administrative discretion under section 212(c). The

exercise of such discretion depends on the nature

and circumstances of the ground of exclusion sought

to be waived and on the presence of any additional

adverse matters. As the negative factors grow more

serious, it becomes incumbent upon the applicant to

introduce additional favorable evidence.

If the respondent takes responsibility and

shows remorse for his criminal behavior, it

constitutes some evidence of rehabilitation. Although

the lack of persuasive evidence of rehabilitation may

not in itself be an adverse factor, the absence of this

equity in his favor may ultimately be determinative

in a given case concerning the exercise of discretion

under section 212(c) of the Act. This is especially

true in cases where an alien has engaged in serious

misconduct and there are questions whether the

alien will revert to criminal behavior.

The Respondent needs to first demonstrate

that his removal would result in extreme hardship to

the relative who is petitioning for him. See Matter of

Alarcon, 20 I&N Dec. 557 (BIA 1992).

The burden is on the respondent to establish

that a grant of a waiver of inadmissibility under

section 212(c) of the Act is warranted in the exercise

of discretibn. See Matter of Fernandez, 14 I&N Dec.

24 (BIA 1972). This has been held to be the case for

other waivers of inadmissibility. See Matter of

Marin, 16 I&N Dec. 581 (BIA 1978) (section 212(c)

A-14

waiver).

The Immigration Judge must balance the

adverse factors evidencing an alien’s undesirability

as a permanent resident with the social and humane

considerations presented on his behalf to determine

whether the grant of relief in the exercise of

discretion appears to be in the best interests of this

country. See Id.

Where there are adverse factors, favorable

factors such as family ties, hardship, length of

residence in the United States, etc. will be

considered as countervailing factors meriting a

favorable exercise of discretion.

A waiver of inadmissibility under 212(c)

involves at least one adverse consideration;

specifically, if the criminal conviction or activity

constituted the ground of exclusion sought to be

waived. See Matter of Marin, supra, at 585. Thus,

there can be no presumption that relief is warranted

in the exercise of discretion. Further, the criminal

conviction or activity would usually be more severe

than any adverse factor present in the application

for adjustment of status, presuming admissibility

and general eligibility for adjustment of status.

Establishing extreme hardship and eligibility

for section 212 (c) relief does not create any

entitlement to that relief. Once extreme hardship is

established, it is but one favorable discretionary

factor to be considered.

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An application for discretionary _ relief,

including a waiver under section 212(c) and 212(h)

may be denied in the exercise of discretion without

express rulings on the question of statutory

eligibility. Matter of Goldeshtein, 20 I&N Dec. 382

(BIA 1991); see also Silva v. Carter, 326 F.2d 315,

320 (9th Cir. 1963); cert. denied, 377 U.S. 917 (1964).

In evaluating whether section 212(c) relief is

warranted in the exercise of discretion, the factors

adverse to the respondent include the nature and

circumstances of the exclusion ground.

The presence of additional significant

violations of this country’s immigration laws must

also be considered. If there is a criminal record, then

the nature, recency and seriousness of the criminal

record must also be considered and analyzed.

Furthermore, the presence of other evidence

indicative of the respondent's bad character or

undesirability as a permanent resident in this

country is important. See Matter of Marin, supra,

and cases cited therein.

Favorable considerations includes family ties

in the United States, length of residence in this

country, evidence of hardship to alien and family if

he is excluded and removed, history of stable

employment, and service in this country’s Armed

Forces. The existence of property or business ties,

evidence of value and service to the community are

to be considered. If there is a criminal record,

evidence of genuine rehabilitation is important. If

there is any other evidence of the alien's good moral

A-16

character, that should also be considered.

The adverse and favorable equities are to be

weighed and balanced. The alien’s history of

employment should be evaluated by its length. If

there is a period of residency marked by a term of

imprisonment, this diminishes the significance of the

period of residency. See generally Douglas v. INS, 28

F.2d 241 (2d Cir. 1994) (residency marked by

criminal activity).

The respondent has the burden of establishing

that a grant of a waiver of inadmissibility is

warranted in the exercise of discretion. The

Immigration Judge must balance the adverse factors

evidencing Respondent’s undesirability as a

permanent resident with the social and humane

considerations presented on his behalf. The Court

then determines whether the grant of relief in the

exercise of discretion appears to be in the best

interests of this country.

On October 1, 2001, the following individuals

testified as follows:

TESTIMONY OF PATRICIO R. AHUMADA

He was the boyfriend of Josef Elvig's mother,

Donna Elvig. At the time he met Donna, he was

- about 22 to 25 years old. He met Donna from 1981

until 1986. At first they were boyfriend and

girlfriend, then lived together. After they knew each

other for a couple of years, she left him and so their

relationship returned to boyfriend and girlfriend.

A-17

He was found guilty for the two counts.

According to them, he did terrible things to Josef. He

put his penis in Josef's mouth and a rubber in Josef's

bottom. He never told this to his family. It was not

fun, nor did it excite him. He is unsure why he did it.

He found out he probably needs some help. He has

been out since 1995. He has not sought any

professional help, because he believes sometimes he

needs help and sometimes he doesn't.

When he did this to Josef, Josef's mother was

with her aunt. The mother had Josef in his care and

this is what he did to Josef. He told his wife and

sister. He told them he feels guilty, because he did

something really terrible at that time. He did not tell

his sister about what he did to Josef.

He did not seek any help, because he did not

admit his guilt. He did this in revenge of Josef's

mother, his girlfriend. He was angry at the mother

and he sexually abused her son. He is unsure what

Josef's life is like. He thinks Josef probably suffered

trauma as a result of his actions.

Since 1995, he has been working. He worked

with the Church. He did not tell the Priest of his

Church the entire truth. He told the Priest he was

accused of molesting his stepson. He told the Priest

that he is not guilty. He is a Protestant. The

punishment for lying to a Priest in his Church is

that one would not get eternal life. The Priest needs

to pray for him to get well. He lived in a lie for six

years.

A-18

On continued direct examination by the

respondent's attorney:

He did not tell Mr. Johnson-Ortiz that he

committed the crime. He did not commit the crime.

He told the court that he committed the crime,

because he feels that Mr. Johnson-Ortiz pressured

him to say that so that the court's decision would be

on his side.

When he was arrested, he was just coming

from work. His ex-girlfriend had _ psychiatric

problems due to the way she lived and due to drugs.

He was trying to take the boy from the mother. That

is why the aunt jumped in and also agreed with the

charge that they put on him.

He did not have sex with Josef, nor any other

children. He never had the intent nor the desire to

have sex with young children. He fought his case

before the Court from 1986 until 1990. He can't

remember exactly the year it began.

When the jury trial found him guilty, he

appealed his case. He lost the appeal. He fought the

appeal for a couple of years. He spent 37 months in

jail and was sentenced to 47 months. He got out

early due to his good time. During the time of his

incarceration, he did not have any problems. He had

a lot of activities with the rest of the inmates.

After his release from jail, he went downtown

Seattle to register. From there, he went to his

parents’ house and stayed there. Since leaving jail,

A-19

he did not have any specialized training. While he

was in jail, he was taking blueprint reader in math

and English and tutor for Spanish-speaking

individuals.

He is married to Karen and has been married

for five years. He met Karen in 1995. He knew

Karen's brother-in-law who was trying to keep in

touch with him. Karen's brother-in-law asked for his

telephone number. Karen's brother-in-law called him

and had him go there. He married Karen on

September 7, 1996, in Bothell United Pentecostal

Church. He had been a member of the Church since

1984, 1985.

He made up a description of the trial as to

what he was charged for as to putting his penis in

Josef's mouth. The truth is that he was found guilty

by the Court and in himself, he is not guilty. The

only contact he had with Josef was that when Josef

was a baby, he changed his diaper and taught him

how to go to the bathroom. He gave Josef a bath.

His mother also helped care for the child. His

mother is here in the Courtroom today.

His first child is almost four years old. He

cares for his child, bathes his child and changes

diapers. He had no sexual contact with his child. His

first child is Jonathan. His second child, Ashley, was

born in 1999. He bathes Ashley and changes

Ashley's diapers.

He assisted in the care of his nieces and

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nephews. He babysat for his nieces and nephews and

had no sexual contacts with them. He has eighteen

or more nieces and nephews and has grand nephews

and nieces.

He has no family members remaining in

Chile. He has two brothers, Carlos and Jose. He has

six sisters, Anita, Maria, Patricia, Flor, Andrea, and

Lorena. All of his siblings have obtained lawful

status in the United States, and some of them are

citizens.

He owns a house located in Tukwila. He

purchased his home one year ago. He is currently

employed at Rainier Precision. He started working

there in 1995. He provided a letter from his

supervisor and owner, Wendy. He has known her for

five years, as of 1995. He is a machine-operator.

He is a member of the Pentecostal Church. He

was a member of the United Pentecostal Church. He

also volunteered at Familia de Dios in South Seattle.

He teaches Sunday School, and is a Sunday School

Teacher, including Bible Studies, focused on the old

and New Testament.

He told a lie in court today. His Christian

learning tells him that it is a sin. He sinned today.

He did not sin in 1987, 1988, 1989 and 1990. He did

not commit a sin against Josef, nor against any other

children.

He was falsely accused, because Donna did

not get what she wanted. He terminated his

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relationship with her. she used him money wise, and

he was babysitting the little boy. Donna also used

her mother. Donna called her many times from

where she was, so he could pick up the little boy.

They (he and his mother) decided to take the

little boy away from Donna and it did not work.

Donna said for him to take the little boy, and he said

Donna had to give him legal paper. The aunt found

out and did not want that to happen. This is how

everything started. He no longer has that letter now.

He returned to Donna a week later to get custody of

the child and Donna refused.

The letter from Donna said she was the

mother of Josef and is giving full-custody to his

step-father, Josef Ahumada. They are not related.

They lived many places, including his parents’ home.

Josef spent 6 to 7 days a month at his

mother’s home. All family members cared for the

child. Other than his mother, his sister, Andrea,

helped take care of the child. His entire family

helped take care of the child.

The family was concerned with the child,

because they knew the child was suffering with his

mother. They (he, Josef and Donna) constantly got

kicked out of apartments and thrown on the streets.

When he gave money to Donna to pay rent, Donna

spent it on different things. They were not living

together as a family.

They lived together as a family in 1981 until

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1983, and since then the relationship started going

up and down. He continued to see her.

From 1981 until 1983, Josef spent time at his

family's home when they visited his family and Josef

spent the night. Everyone in his family cared for

Josef from 1981 until 1983.

Starting 1984, Josef stayed six or seven days a

month with his family. His mother cared for the

child, because she was always home. One of his

sisters, Andrea, was living with his mother and took

care of Josef. He never spent time alone with Josef,

besides putting him in bed and he goes to his own

bed.

When he was living with Donna from 1981

until 1983, he spent time alone with Josef while

Josef was in his car going to the store. From March,

1987, until March, 1988, he never spent time alone

with Josef. He was accused of something, so he never

spent time alone with Josef. He has no idea where

Josef is now.

Donna never attempted to contact him. None

of Donna's family tried to contact him. He is not

aware if any members of his family had any contact

with Josef or Donna. He is unsure, but believes there

is a permanent restraining order that restrains him

from seeing Josef.

When he has a chance on Wednesdays and

Saturdays, he goes to the streets to preach the word

with other brothers and families. He teaches Youth |

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Bible Studies. They are 16 to 21 years old. He never

kad any sexual contacts with these children. There

are 4 children from 16 to 21 and 15 children from

ages 8-12, and other little ones under 8. He has been

doing this for about two years.

He is a registered sex offender. The entire

Church knows about this. He is the brother-in-law of

the pastor of the Church.

He has nothing waiting for him in Chile. It is

a poor situation. He does not know how to start over

if he is returned there. He lives in a town about one

to two hours away by car from the capital. He has no

relatives remaining in Chile. His wife is also from

San Diego, Chile. He does not know if his wife's

family would help him or not. He has met his

in-laws.

If he had to return to Chile, he would not take

his wife and children with him. There is no hope for

Chile. You need to know people to have a fair living.

He has not looked into job opportunities in Chile.

His wife is a homemaker. His wife graduated from

high school, and went to IT&T. He is not aware that

his wife came out with any specialized training.

If he left his family here, he thinks his wife

and children will have a very hard time. His wife

and children will miss him very much.

He was arrested for third degree theft in 1979,

and giving liquors to minors. He did not commit the

theft. They were accusing him of stealing a bicycle

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and 5 cents. He was not found guilty and did not

plead guilty. They dropped the case. He did not give

liquors to minors in 1979. Charges were filed, he was

not found guilty, and the case was dismissed.

He has been arrested for sexually related

offenses, the offenses mentioned in the indictment of

seven different counts of various sexual misconducts.

There were three different children involved.

One of the children is his niece, Jessica,

(brother, Jose's child). Jose came to Court today. The

other child is the niece, Heather, of his ex-girlfriend.

The case went to trial, but not at the same time as

Josef's case. They lost. He never had sexual contact

with Jessica. Jessica is not here today. He does not

know where Jessica is, but is in either Bremerton or

Port Orchard. His brother has contact with Jessica.

Heather is the cousin of Josef Elvig. He took

care of Heather just like other children. He did not

babysit with Heather, nor spend time alone with

her. He never had sexual intercourse with Heather.

He was found not guilty, and the trial was not at the

same time as Josef Elvig's trial

He has never been arrested for any other

crimes. On cross-examination, he testified as follows:

He married his wife after he was placed in

deportation proceedings. His first child was born in

1997, after he was ordered removed by the

Immigration Court. He and his wife discussed their

decision to have a child, even though he was at risk

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from being deported from the United States.

His wife came to the United States in 1992 as

a tourist. His wife was illegally present. He

petitioned for his wife.

He has a sister named Danila Luengo. Danila

is married to Mario Luengo, the same Mario Luengo,

a counselor who wrote a letter on behalf of the

Department of Corrections. When Mario wrote the

letter in 2000, he was his brother-in-law, Exhibit 2B,

page 8. His pastor is also his brother-in-law.

He was arrested

TESTIMONY OF OSCAR H. ROMERO, M.D.

The respondent said he was innocent of the

charges. If the respondent did not tell the truth, he

did not find that the respondent had any mental

disorder. His report is only correct as to the

information given to him by the respondent.

It is not necessary that the patient has a

profile to make him have an ongoing problem. The

information just provided to him would elicit the

need to inquire into this area. His evaluation is

comprehensive and complete in terms of the

information he obtained, but incomplete.

Based on the information provided to him by

the Court, his evaluation is inaccurate. He was

arrested in August, 1979, for theft in the 3 ™ degree.

On September 10, 1979, he was sentenced and

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convicted for a $50 fine. During that arrest, he was

also charged with obstruction of an officer, and also

given $50 fine. The third charge was supplying

liquor to a minor for which he was given a $50 fine.

He told his attorney that he had not been convicted,

because he said the case was dropped. He admits

that he was convicted of the three offenses.

He was held in detention for two to three

hours wherein he was taken in for questioning as to

abuse of his ex-girlfriend, domestic fights. He was

not charged with domestic violence.

He was arrested for the statutory rape

offenses, because Dorothy Crome, Josef Elvig's aunt,

reported this. He testified at his trial. The victim,

Josef Elvig, testified.

At the trial, Josef Elvig told the Jury that he

did something really bad, that he stuck his penis in

Josef's mouth, and that he rubbed his penis all

around Josef. It is a little bit hard after so many

years. Josef said that he put his penis in Josef's

mouth and that Josef would move his head up and

down. Josef said that after the act, Josef had semen

in his mouth.

Josef said that he inserted something (the

respondent's penis) into Josef's rectum. Josef said it

was hard. Josef said that he touched Josef with it.

He does not remember that Josef thrust something

inside. Josef was examined physically and he

believes no physical evidence was introduced.

During the time of the incident, Josef was four or

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five years old.

At the criminal trial, he said nothing. He

maintains that he still did nothing.

On redirect examination, he testified as

follows:

Josef's aunt is Dorothy Crum, the mother of

Heather. He knew Dorothy. He had a _ good

relationship with Dorothy. That changed when

Dorothy learned that he planned on taking Josef

away.

He never met Josef's father. As far as he

knows Josef's father has never been involved in

Josef's life. Before he met Donna, Josef had a father

figure in his home. Josef did not tell him about

Josef's other father figure. Josef was too young to

know any difference.

Donna never told him how Josef was treated

by his other father-figures. Donna told him that the

other men bought Josef things to calm Josef down.

He thinks they were doing those things to keep Josef

outside the relationship. Josef would show him that

Josef was "daddy's boy." Josef was confused. Josef

was only eight months when he met Josef.

On recross examination, he testified as

follows:

When Josef testified at the criminal hearing,

he did not testify as to whether | he used force to hold

A288

him. Josef did not state whether he threatened him.

Josef was about four or five years old at that time.

When the acts occurred, Josef was four or five years

old.

At a continued merits’ hearing, the

respondent submitted written declaration of his

additional witnesses. The Service did not wish to

cross-examine any of the witnesses, The written

declarations have been admitted as Exhibits 2B and

2C. The Service also submitted the criminal trial

transcripts as well as all of the reports in the

criminal matter, which have been admitted as

Exhibit 3.

ANALYSIS OF FACTS AND LAW

The respondent has not established the

primary requirement for 212(c) relief, since he has

not shown that his deportation would result in

extreme hardship to his United States citizen

parents and family who are being cared for by his

other siblings while he spent most of the last few

years in jail. Furthermore, the siblings of the

respondent are providing the necessary emotional

support for his parents.

The respondent is not remorseful for his

conviction. The respondent denies vehemently that

he was guilty of the offense for which he was

convicted. The court finds that the respondent is not

a credible witness, because he first gave the details

of the abuse to the child who calls him “dad.” Later,

he contradicted himself and said he told a lie.

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This court finds that either the respondent

was telling the truth, which in that case, would be

the reason he was convicted by a jury. Or, he was

telling a lie, after swearing to tell the truth to this

court, and he is not a credible witness for having

admitted to a lie on the stand before this court.

The respondent has a supportive family, who

have testified at his criminal trial essentially the

same thing they wrote in their affidavits, but he was

still convicted by the Jury. Most importantly, this

court can only abide by the conviction records of the

state court. The respondent has been convicted,

denies his culpability, and therefore shows no

remorse for his statutory rape of a five-year old boy.

Even if, assuming arguendo, the respondent

met the threshold burden of establishing extreme

hardship, which this Court does not so find, he is not

deserving of a discretionary grant of the waiver. The

respondent has been convicted of statutory rape of a

five-year boy who called him “dad,” the child of his

girlfriend. The young child was subjected to abuse

both by his mother and the respondent, and was

determined to be believable by the jury. Therefore,

considering the nature of the offense, the seriousness

and severity of the offense, the ties to the community

and the number of years the respondent has been in

this country, the court will not use its discretion to

grant this waiver.

There are no other issues before this Court,

therefore, the Court issues the following order:

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ORDER

IT IS HEREBY ORDERED that the 212(c)

waiver be denied.

IT IS FURTHER ORDERED that the

Respondent be removed to Chile as he designates

and as charged in the Order to Show Cause.

/s/

ANNA HO

Immigration Judge

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UNITED STATES COURT OF APPEALS

‘FOR THE NINTH CIRCUIT

[DATE STAMP]

FILED

JUN 26 2007

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

PATRICIO AHUMADA,

Petitioner,

No. 05-75003

v. Agency No. A20-954-215

ORDER

ALBERTO R. GONZALES, Attorney

General,

Respondent.

Before: O'SCANNLAIN, TASHIMA, and BERZON,

Circuit Judges.

The petition for panel rehearing is denied.

[DATE STAMP]

RECEIVED

JUN 29 2007

/s/

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