[District Judge Fogel wrote the opinion. Footnote 4 in the decision is of particular interest, part of it is reproduced here: “We are deeply troubled by the IJ’s conduct in this case, which exhibits a fundamental disregard for the rights of individuals who look to her for fairness. We have made similar observations about this IJ on a number of previous occasions.” Again it illustrates the conflicts between case management and the requirement of fundamental fairness within the Office of Immigration Judges]. The following is the digest of the case:
Submission of additional factual evidence to the BIA regarding the U.S. citizen child’s medical condition in an appeal of the IJ’s denial of Cancellation of Removal would not have been appropriate, as the BIA does not engage in fact finding on appeal.
When the BIA adopts and affirms the IJ’s decision with a citation to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and does not disagree with any part of the IJ’s decision, this court reviews the IJ’s decision as if it were the decision of the BIA. When the BIA adds its own reasoning, this court reviews both decisions. This court reviews for abuse of discretion an IJ’s denial of a continuance and reviews de novo claims of equal protection and due process violations in removal proceedings.
In order to prevail on a due process claim that he was denied a full and fair hearing, an alien must also show prejudice — that his rights were violated in a manner so as potentially to affect the outcome of the proceedings.
An alien is entitled to a full and fair hearing that meets the requirements of due process. Remand is generally necessary when an alien is prevented from reasonably presenting her case or when an IJ’s actions prevent the introduction of significant testimony. In order to prevail on such a claim, the alien must demonstrate that the challenged proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. The alien also must show prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.
This court agrees that the IJ denied the petitioner a full and fair hearing by unreasonably limiting her testimony and denying her request for a continuance when the petitioner was precluded from testifying as to any topic that was mentioned in the psychological evaluation. In an application for Cancellation of Removal, the age, health, and circumstances of the qualifying citizen relatives must be considered, as well as adverse conditions in the country of return. An application for cancellation of removal might be particularly strong if the qualifying relative is a child with serious health issues or compelling special educational needs. While the psychologist’s report addressed the age, health, and circumstances of the qualifying citizen relatives to some degree, the petitioner should have been permitted to provide her own account of the matters discussed in the report.
Where the IJ precluded the petitioner from offering any significant testimony of her own regarding (1) the life she had created for her U.S. citizen child in the United States, (2) her child’s medical and educational needs, and (3) the hardships her child would face if forced to relocate to Mexico, all of these are factors that an IJ should consider when adjudicating an application for Cancellation of Removal, the petitioner has been denied of a full and fair hearing required under due process.
The decision to grant or deny the continuance is within the sound discretion of the judge and will not be overturned except on a showing of clear abuse. When determining whether an IJ has abused her discretion, this court considers a number of factors, including: (1) the nature of the evidence excluded as a result of the denial of the continuance; (2) the reasonableness of the immigrant’s conduct; (3) the inconvenience to the court; and (4) the number of continuances previously granted.
Where a continuance would have afforded the petitioner time to obtain additional evaluations regarding her 4-year old U.S. citizen child’s medical and educational issues, including the full assessment recommended by the psychologist, as well as evidence regarding the type of support she could obtain for her 4-year old U.S. citizen child in the Mexican school system, and where the need for a continuance did not result from any unreasonable conduct on the petitioner’s part, it is an abuse of discretion of the IJ in denying the request for continuance.
Where the petitioner’s two previous continuances were both exceedingly short, and where the merits hearing occurred two months after the petitioner’s initial appearance and less than one month after the petitioner’s first appearance with counsel, the petitioner’s inability to marshal significant documentary evidence in this short time frame is unsurprising.
Where the IJ became increasing testy with the petitioner’s counsel when he disclosed conflicts with her proposed dates, by the time the IJ suggested the date ultimately selected for the merits hearing any reasonable attorney likely would have acquiesced. The fact there was scheduling conflicts with the petitioner’s counsel does not excuse the IJ’s abuse of discretion in denying the petitioner’s request for continuance at the merits hearing to obtain additional evaluations regarding her 4-year old U.S. citizen child’s medical and educational issues including the full assessment recommended by the psychologist, as well as evidence regarding the type of support she could obtain for her 4-year old U.S. citizen child in the Mexican school system.
This court has repeatedly warned that a myopic insistence upon expeditiousness will not justify the denial of a meritorious request for delay. Where there are factors favoring the grant of a continuance for the petitioner, and where the IJ, even if she had given the factors any consideration, appeared most concerned with the purported inconvenience to herself resulting from delay of the case, this court concludes that the IJ abused her discretion in denying the continuance.
This court has no difficulty concluding that the denial of the requested continuance, in conjunction with the limitations placed upon the petitioner’s testimony, prevented her from fully and fairly presenting her case. This court likewise concludes that the outcome of the hearing may have been affected by these procedural deficiencies.
Further, the IJ stated repeatedly that the petitioner’s U.S. citizen child was “only” four years old, and apparently formed the opinion that he might simply outgrow his problems. Had the petitioner been permitted to offer more detail about her U.S. citizen child’s medical and educational issues, and had a continuance been granted to permit the further evaluation recommended by the psychologist, the IJ’s conclusion might have been different. Moreover, had the petitioner been afforded time to obtain evidence regarding the schools in Mexico, the IJ might not have relied impermissibly upon her own unsupported opinion that Mexico is really trying very hard to work on special education. Accordingly, the petition for review is granted and the case is remanded with instructions.
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