Cano-Merida v. INS:  9th Circuit finds that IJ violated due process by denying a respondent opportunity to present evidence
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

The U.S. Court of Appeals for the Ninth Circuit has ruled that an immigration judge failed to provide a respondent in an asylum case a full and fair hearing and a reasonable opportunity to present evidence on his own behalf, in violation of the due process clause of the Fifth Amendment. The Ninth Circuit's finding turned on an "off the record" discussion between the IJ and the respondent in which the latter was advised that he had no case. The ruling comes on a petition for review of the decision by the Board of Immigration Appeals upholding the IJ's denial of a motion to reconsider an order of deportation.

The respondent in this case, a Mr. Cano, is a Guatemalan national who was placed in deportation proceedings in 1996. At his first hearing he represented himself and asked for the opportunity to apply for asylum. In so doing, he attempted to present Spanish language documents to support his application, but the IJ informed him that the documents must be translated into English and copied for the court and the INS. The IJ continued the case to give Cano the chance to produce the translated documents.

At the second hearing, the IJ presented Cano with the Dept. of State's country report for Guatemala, which showed that peace accords had been entered between the guerrillas and the Guatemalan government. The IJ entered this document into evidence and then asked Cano what would happen to him if he returned to Guatemala. Cano replied that he had "no certainty." The IJ then went off the record. On returning to the record, the IJ asked, "Do you want to proceed with your application even though I informed you, while we were off the record, that I believe you have no basis for a claim to asylum? Do you wish to proceed with your claim?" After a brief discussion that did not address the merits of the claim, Cano stated "that's fine," and his asylum application was withdrawn. Subsequently, with the assistance of an attorney, Cano filed a motion to reopen, arguing that he had not intended to withdraw the asylum application. The IJ denied this motion. Cano then filed a motion for reconsideration of the denial, arguing that he was denied the opportunity to present evidence and that his due process rights were violated. The IJ also denied this motion, and Cano appealed this denial to the BIA. When the BIA affirmed the IJ's decision, Cano filed a petition for review with the court of appeals.

In its ruling on the appeal, the Ninth Circuit found that the IJ did not provide Cano with an opportunity to present testimony or evidence on the record, before holding an off-the-record discussion with him. The only aspect of the off-record discussion reflected in the record is the question quoted above, in which the IJ expressed his belief that Cano did not have an asylum case. After that discussion, when the IJ went back on the record, "Cano was presented with the Hobson's choice of proceeding with a claim the decision-maker had labeled as baseless, or dropping his claim and receiving six months to make departure arrangements." This, the court found, deprived Cano of "a meaningful option to continue the asylum hearing because he knew that the IJ had already decided his claim had 'no basis.'"

Moreover, because Cano "appeared pro se, the IJ had a duty to 'fully develop the record'" (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000). The IJ, the court found, failed to do this and instead pressured Cano to drop his claim. The court found that the IJ also failed to adequately explain hearing procedures to Cano and failed to give Cano a meaningful opportunity to review or object to the State Dept. report.

The court noted that to demonstrate a due process violation, Cano must establish prejudice, which requires a showing that "the IJ's conduct 'potentially [affected] the outcome of the proceedings'" (quoting Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000). Here, while Cano was able to submit documents in support of his motion to reopen, he was denied the opportunity to present oral testimony at a hearing. The court found that "[t]his structural error denied Cano the basic opportunity to create a full and complete record susceptible of appeal and review, and it puts him in the impossible position of having to 'produce a record that does not exist'" (quoting Perez-Lastor v. INS, 208 F.3d 733, 782 (9th Cir. 2000). Accordingly, the court found that Cano established a due process violation, it granted his petition, and it remanded the case for a hearing.

Cano-Merida v. INS, No. 01-71423 (9th Cir. Nov. 22, 2002).