Opinion
No. 04-74682
Argued July 26, 2006. Submitted March 6, 2007 Seattle, Washington.
March 6, 2007.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A73-979-442.
Before: WALLACE, WARDLAW, and FISHER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.
Socorro Ramos de Rojas petitions for review of the Board of Immigration Appeals's ("BIA") affirmance of an Immigration Judge's ("IJ") order denying cancellation of removal, contending that a number of due process violations rendered her removal proceedings fundamentally unfair. We have jurisdiction to consider Ramos's legal and constitutional claims, 8 U.S.C. § 1252(a), which we review de novo, Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006). We grant the petition and remand.
I. Due Process Violations
The central issue at Ramos's removal hearing was whether her mother and two U.S. citizen daughters, particularly her developmentally delayed younger daughter, would suffer exceptional and extremely unusual hardship if Ramos were removed to Mexico. The most probative evidence on this issue was Ramos's testimony regarding her daughter's likely experience in Mexico; the testimony of Byers, a school official, and Dr. Cramper, a psychiatrist, regarding the child's educational and developmental needs; and documents related to the child's mental disability and learning abilities. It was precisely this evidence that the IJ's procedural errors affected. As a result, Ramos was unable to fully present her circumstances and both the BIA and we are deprived of the ability to meaningfully review the record.
The IJ's most troubling due process violation was her failure to produce or maintain a complete record of the removal hearing. For reasons not disclosed in the record or in the IJ's decision, there is no recording or transcript of much of the removal hearing, including the discussion between the IJ and the attorneys regarding restrictions on questioning witnesses, all of Ramos's and Byers's testimony, and the beginning of Dr. Cramper's testimony. This large gap in the record, which is particularly serious because it includes the most crucial testimony regarding Ramos's daughter, plainly violates 8 U.S.C. § 1229a(b)(4) ("Alien's rights in proceeding[:] . . . a complete record shall be kept of all testimony and evidence produced at the proceeding."), and 8 C.F.R. § 1240.47 ("The hearing shall be recorded verbatim except for statements made off the record with the permission of the immigration judge."). In the absence of a contemporaneous recording of an immigration hearing, the BIA could not meaningfully review the IJ's decision for factual or legal error. See Cortez-Acosta v. INS, 234 F.3d 476, 482 (9th Cir. 2000).
Cortez-Acosta involved both a sufficiency of the evidence and a due process challenge, and the panel never squarely addressed due process. However, its discussion of the impossibility of meaningful review in the absence of a record is certainly instructive in evaluating whether a due process violation occurred. It is wrong for the dissent to suggest that the holding in Cortez-Acosta somehow cabins due process rights to only those cases where the burden of proof on the government is high; concerns about burdens of proof are relevant, if anywhere, to the analysis of prejudice, not to whether a violation has occurred. Further, here, unlike Cortez-Acosta, the missing recordings are from the merits hearing, where a recording is required by regulation, not an unrecorded master calendar hearing where no such recordings are required. Cortez-Acosta, 234 F.3d at 482.
The IJ also erred in allowing Byers to testify telephonically after issuing a subpoena compelling her to appear in person. Ramos had a right to subpoena essential witnesses. See 8 U.S.C. § 1229a(b)(1); 8 C.F.R. § 1003.35(b); Kaur v. INS, 237 F.3d 1098, 1100-01 (9th Cir. 2001). Ramos exercised this right and the IJ issued a subpoena to Byers, which stated:
You are hereby commanded to appear before the Seattle Immigration Court at 1000 Second Ave, Su[it]e 2500 Seattle, WA 98104 on June 11th, 2003 at 8:30 A.M. to give testimony . . . concerning the Special Education of [Ramos's daughter.] You are further commanded to bring with you . . . Test scores, psychiatric or psychological evaluations and [the] entire school file of [Ramos's daughter].
Despite the unambiguous language of the subpoena, the IJ allowed Byers to testify by telephone and did not require production of Ramos's daughter's school file. This violated the regulations governing immigration proceedings. See 8 C.F.R. §§ 1003.35(b)(3) and (b)(6). The record fails to reveal why the IJ allowed Byers to testify by telephone. Ramos was given no advance notice that Byers would be testifying remotely or that Byers would not be bringing the subpoenaed documents. This regulatory violation precluded Ramos from fully and fairly presenting her grounds for relief.
The dissent's citation and discussion of Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) is inapposite. That case involved only the question of whether telephonic testimony could be fair. Id. at 1185-86. We are concerned here with the IJ's failure to enforce the Executive Office for Immigration Review's own immigration regulations.
II. Prejudice
The cumulative impact of the IJ's due process violations was prejudicial. Ramos is only entitled to relief "if (1) the proceeding was so fundamentally unfair that [she] was prevented from reasonably presenting [her] case, and (2) [she] demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation[s]." Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006) (citations and internal quotation marks omitted). To demonstrate prejudice, Ramos need not satisfy a but-for or harmless error standard. Tawadrus v. Ashcroft, 364 F.3d 1099, 1105 (9th Cir. 2004). In certain circumstances "the petitioner need not explain exactly what evidence he would have presented in support of his application, and we may infer prejudice in the absence of any specific allegation as to what evidence [petitioner] would have presented . . . had he been provided the opportunity to present that evidence." Id. (alteration and omission in original) (internal quotation marks omitted).
The determination of exceptional and extremely unusual hardship in a cancellation of removal proceeding is complex, nuanced, and highly fact-specific. The IJ's summary of the key testimony is not an adequate substitute for the testimony itself, because the summary does not convey the subtleties of the witnesses' statements, which are crucial inputs to the hardship determination. Indeed, "[w]hen `an adjudicator acts without the minimal trappings of an adjudicatory proceeding, such as in the absence of a contemporaneous recording,' we no longer owe him the deference normally given to an adjudicator. On review, we would treat the IJ's findings as `the observations of an ordinary witness,' rather than as findings of fact." United States v. Medina, 236 F.3d 1028, 1032 (9th Cir. 2001) (quoting Cortez-Acosta, 234 F.3d at 482-83) (internal citation omitted). Without any of Ramos's or many of Dr. Cramper's actual words before it, the BIA was severely hampered in its ability to review whether the IJ accurately gauged the harm Ramos's daughter would suffer from being forced to leave the United States. See id.
That the IJ telephoned both parties' attorneys upon discovering the gap in the recording, read her notes of the hearing, and obtained agreement from the attorneys that the notes were an accurate representation of the missing testimony does not weigh heavily in our prejudice analysis. Even though Ramos's attorney agreed that the notes were generally accurate, Ramos did not concede that the record was adequate to enable the BIA to effectively review the IJ's hardship determination on appeal.
Contrary to the dissent's assertion, Medina does not control here. Medina involved a collateral attack on a deportation proceeding underlying an 8 U.S.C. § 1326 criminal indictment. See Medina, 236 F.3d at 1032 ("Whatever papers and oral testimony exist may well serve adequately to accomplish the collateral review.") (quoting United States v. Palacios-Martinez, 845 F.2d 89, 91 n. 4 (5th Cir. 1988)). While we agree with the dissent that we do not follow Medina's due process holding, we see no error in our analysis; this petition is on direct appeal from the BIA, rendering Medina inapposite. See, e.g., Parke v. Raley, 506 U.S. 20, 29-30 (1992) (discussing the "presumption of regularity" that attaches to proceedings under collateral attack).
This is particularly problematic where, as here, the petitioner appears to be a viable candidate for cancellation of removal, as evidenced by BIA cases granting relief in similar circumstances. For example, in In re Villegas, the BIA rejected an IJ's finding that the aliens' children would not suffer extreme and unusual hardship if they had to relocate to Mexico and granted cancellation of removal because:
[T]he respondents' children, who are 14, 11, and 10 years old, are assimilated into American culture and cannot speak Spanish. Moreover, they all have learning disabilities which require special education. Although the respondents do have familial ties in Mexico and would likely be able to financially support their family, their children would be deprived of educational, cultural, and social opportunities due to their acculturation, their learning disabilities and the language barrier. The children would not be able to academically or socially function in school, nor would they be able to independently function in society.
2004 WL 1167288 (BIA Jan. 21, 2004) (citing Matter of Recinas, 23 I. N. Dec. 467 (BIA 2002)) (unpublished disposition).
The absence of Byers and the school file from court also prejudiced Ramos in presenting her case. If they had been present, Ramos may have been able to elicit more sympathetic and compelling testimony regarding her daughter's learning disability, as well as augment the documentary evidence showing that the child had special needs that likely would not be met in Mexico. Further, the IJ's restriction on Ramos's counsel from eliciting testimony about the documentary evidence could have denied Ramos the opportunity to demonstrate its full significance and convey the magnitude of the hardship that her daughter would suffer were she removed from the United States. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
The absence of a transcript of the discussion between counsel and the IJ precludes review on the merits of the restrictions on questioning.
Based on the harm she suffered from the IJ's due process violations, Ramos has shown that "the outcome of the proceeding may have been affected by the alleged violation[s]." Ibarra-Flores, 439 F.3d at 620-21 (internal quotation marks omitted). Having adequately demonstrated prejudice, Ramos is entitled to relief. See Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1059 (9th Cir. 2005); Colmenar, 210 F.3d at 973.
PETITION GRANTED; REMANDED.
The majority erroneously concludes that Ramos's right to due process was violated because (1) the IJ failed to produce or maintain a complete record of the removal proceeding, and (2) the IJ allowed Byers to testify telephonically.
Ramos argues that her Fifth Amendment right to due process was violated because part of the audiotapes from her removal proceedings were missing. We considered a similar claim in United States v. Medina, 236 F.3d 1028 (9th Cir. 2001), a case cited but not followed by the majority. In that case, Medina contended that his indictment for illegal reentry should have been dismissed because the audiotape from his prior deportation proceeding was blank. Id. at 1030. He argued "that the mere absence of a tape recording or transcript of his deportation proceeding" rendered the proceeding fundamentally unfair. Id. at 1031. We disagreed, holding that "Medina was not deprived of any procedural right during the proceeding nor was he deprived of the right of appeal because of the absence of a tape or transcript." Id. We further held that even if Medina's due process rights had been violated, his claim failed for a lack of prejudice. Id. at 1032. We stated, "Medina offer[ed] only the vague assertion that, if a tape recording [were] available, he might be able to locate some defect in the proceeding." Id. Since this amounted to "no more than speculation," he failed to establish prejudice. Id. (internal quotation marks omitted).
Our analysis in Medina applies here. As in Medina, the mere absence of an audiotape did not deprive Ramos of her fundamental right to due process. Further, both parties agreed that the IJ's notes on the missing testimony were accurate. As such, Ramos cannot show that she was prejudiced by any difference between the actual testimony and the IJ's notes. Thus, I would follow Medina and hold that no due process violation occurred.
The majority cites Cortez-Acosta v. INS, 234 F.3d 476 (9th Cir. 2000) in holding that the lack of a complete transcript constitutes a due process violation. That reliance is misplaced. Cortez-Acosta concerned whether the government had met its burden of establishing deportability by "clear, unequivocal, and convincing evidence," where the petitioner's alleged admission that he had smuggled aliens had not been recorded. Id. at 480-81. We granted the petition for review in that case "because the weakness of the administrative record [did] not satisfy the stringent evidentiary standard for deportation." Id. at 483. In contrast to the petitioner in Cortez-Acosta, Ramos has conceded removability. The issue here is whether Ramos is entitled to cancellation of removal, not whether the government has demonstrated that she is removable in the first place. Thus, the heightened evidentiary standard under Cortez-Acosta does not apply. Additionally, the missing testimony in Cortez-Acosta was crucial to a disputed factual issue. See id. at 480-81. That is not the case here.
The argument that Ramos's right to due process was violated because the IJ allowed a witness to testify over the telephone is similarly without merit. See Beltran-Tirado v. INS, 213 F.3d 1179, 1185-86 (9th Cir. 2000). There, Beltran argued that the telephonic sworn testimony of an out-of-state witness violated her due process rights. Id. at 1185. We disagreed, stating, "Although the telephone presentation cost Beltran the opportunity to have the witness's demeanor more fully observed by the finder of fact, the testimony would have been admissible in a civil court proceeding." Id. at 1186. We also observed that "Beltran had an adequate opportunity to cross-examine [the witness]." Id. Thus, we "conclude[d] that admission of the testimony was `fair,'" and rejected Beltran's due process claim. Id. Ramos's claim is even weaker than Beltran's, since Ramos's witness was friendly and not hostile. Thus, her right to cross-examine the witness was not implicated. I would therefore follow Beltran and reject this claim.
Although Beltran-Tirado did not involve a violation of the regulations governing immigration proceedings, the analysis is nevertheless relevant in determining whether allowing telephone testimony violated due process. In that case, we explicitly rejected Beltran-Tirado's claim that she was denied due process when the immigration judge permitted a witness to testify over the telephone. Id. at 1185.
Finally, Ramos mentions, in connection with her objection to the telephonic testimony, that the witness was supposed to bring Ramos's daughter's school records. However, Ramos does not argue that this is a due process violation, nor does she demonstrate that she was prejudiced by the lack of the school file. Ramos has made no showing that the materials in question were essential, nor has she demonstrated prejudice. Cf. Kaur v. INS, 237 F.3d 1098, 1100-01 (9th Cir. 2001) (granting petition for review where IJ refused to subpoena materials essential to petitioner's testimony). "Prejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings." Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000). Here, there was a great deal of evidence in the record about Ramos's daughter's mental abilities, including written testimony from various teachers and psychologists. Accordingly, Ramos cannot show prejudice due to the missing school file.
For the reasons stated above, I respectfully dissent. I conclude the majority disposition is in conflict with our prior law. I would, therefore, deny the petition for review.