On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-942-106.
The opinion of the court was delivered by: Fogel, District Judge
Argued and Submitted April 8, 2009 -- Pasadena, California.
Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Jeremy Fogel, District Judge*fn2
Petitioner Araceli Cruz Rendon ("Cruz Rendon"), a native and citizen of Mexico, seeks review of the decision of the Board of Immigration Appeals ("BIA") affirming the denial of her application for cancellation of removal by the Immigration Judge ("IJ"). Cruz Rendon claims that the "exceptional and extremely unusual hardship" requirement of 8 U.S.C. § 1229b(b)(1) violates the Equal Protection Clause of the United States Constitution, and that the IJ denied her a full and fair hearing in violation of the Due Process Clause. We have jurisdiction pursuant to 8 U.S.C. § 1252. We agree that the IJ denied Cruz Rendon a full and fair hearing and that this prejudiced Cruz Rendon's ability to present evidence in support of her application for cancellation of removal. Accordingly, we grant the petition for review and remand to the BIA with instructions to order a new hearing before the IJ.
Cruz Rendon entered the United States illegally at some time after January 1, 1990. In 2004, the government initiated removal proceedings against her. Cruz Rendon appeared before IJ Anna Ho on November 15, 2004 and requested a continuance so that she could retain counsel; the IJ granted a one-month continuance until December 16, 2004. On that date, Cruz Rendon appeared with counsel, conceded removability, and requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)*fn3 or, in the alternative, voluntary departure. The IJ continued the matter one additional month for a merits hearing, which was conducted as scheduled on January 14, 2005. At the start of the hearing, the IJ indicated that Cruz Rendon had satisfied the first three requirements of § 1229b(b)(1), and that the application turned on the fourth requirement, that is, whether Cruz Rendon's removal "would result in exceptional and extremely unusual hardship" to her four-year-old United States citizen child, Jose.
Cruz Rendon presented a written psychological evaluation of Jose that had been prepared approximately one week before the merits hearing. The report noted that Jose was born in the United States, was bilingual, and attended a public pre-school, and that Cruz Rendon supported herself and Jose by ironing for a clothing manufacturer. The report stated that Jose displayed symptoms of Attention Deficit/Hyperactivity Disorder ("ADHD"), and that children with ADHD do not respond well to changes in environment or in caretakers. The report also indicated that Jose might have learning and speech disabilities. The report concluded that separation from his mother or relocation to Mexico would create emotional distress for Jose and would worsen his problems. The report recommended that Jose be given a "thorough psychoeducational assessment" to determine his needs.
The IJ orally summarized the written evaluation as follows: "the psychologist seem [sic] to indicate that the child may be suffering from attention deficit, but he doesn't know. Also, the child may have speech therapy, but he doesn't know." The IJ then stated that "[t]he mere fact that a child may have attention deficit, and even if he did have attention deficit, does not mean that he cannot have proper treatment in Mexico." The IJ indicated that Cruz Rendon had not presented evidence as to lack of opportunity for treatment in Mexico, and then stated, "[b]esides, the child is only 4-years-old." The IJ directed Cruz Rendon's counsel to present evidence of excep- tional and extremely unusual hardship to Jose, but limited such evidence to matters not addressed in the psychological evaluation.
Cruz Rendon began her substantive testimony by discussing her concerns that Jose was hyperactive, had difficulty learning, and had problems speaking. The IJ cut off Cruz Rendon's testimony, stating that the psychologist had addressed these issues in the written report. When counsel later tried to revisit Cruz Rendon's concerns, the IJ stated that "I believe the psychologist's evaluation is much better than what this lady has to tell me." The IJ also interrupted counsel when he attempted to ask Cruz Rendon where she was employed, stating that Cruz Rendon's employment history was covered in the report.
Cruz Rendon testified that she feared Jose would suffer if he had to go to school in Mexico, because based upon her own childhood experience she believed that children often are mistreated and beaten in Mexican schools. The IJ inquired whether counsel had other evidence regarding Mexican schools. When counsel responded that he had not had time to obtain such evidence, the IJ stated that "your case has been pending and ...