Simon Lopez-Andrade, Jr. v. Eric Holder, Jr. , 550 F. App'x 376 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 18 2013
MOLLY C. DWYER, CLERK
SIMON LOPEZ-ANDRADE, JR., No. 09-72404 U.S. COURT OF APPEALS
Petitioner, Agency No. A43-443-900
v. MEMORANDUM*
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 30, 2013**
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.***
Petitioner Simon Lopez-Andrade (“Lopez-Andrade” or “Petitioner”), a citizen
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument.
***
The Honorable Ivan L. R. Lemelle, District Judge for the U.S. District Court for
the Eastern District of Louisiana, sitting by designation.
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of Mexico and a lawful permanent resident of the United States, petitions for review of
the Board of Immigration Appeals (“BIA”) decision finding him removable and ineligible
for relief. Petitioner contends that the second Immigration Judge (“IJ”), who heard his
case on remand from the BIA, violated principles of collateral estoppel and the law of the
case doctrine in setting aside the first IJ’s decision to grant Petitioner’s motion to
suppress. Alternatively, Petitioner argues: (1) that the second IJ was biased against him;
and (2) that the BIA erred in upholding the second IJ’s ruling that statements Petitioner
gave to immigration officials at the port of entry were voluntary and not coerced.
1. Jurisdiction of the Second Immigration Judge on Remand
In Matter of Patel, 16 I. & N. Dec. 600 (B.I.A. 1978), the BIA ruled:
[W]hen the [BIA] remands a case to an immigration judge for further
proceedings, it divests itself of jurisdiction of that case unless
jurisdiction is expressly retained. Further, when this is done, unless
the Board qualifies or limits the remand for a specific purpose, the
remand is effective for the stated purpose and for consideration of
any and all matters which the Service officer deems appropriate in the
exercise of his administrative discretion.
Id. at 601.
The Ninth Circuit adopted the BIA’s Patel ruling in Fernandes v. Holder, 619 F.3d
1069 (9th Cir. 2010), reiterating that “the IJ’s jurisdiction on remand from the BIA is
limited only when the BIA expressly retains jurisdiction and qualifies or limits the scope
of the remand to a specific purpose” and explaining that “[a]n articulated purpose for the
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remand, without any express limit on scope, is not sufficient to limit the remand such that
it forecloses consideration of other new claims or motions that the IJ deems appropriate
or that are presented in accordance with relevant regulations.”
Id. at 1074.
The BIA’s remand order stated:
[T]his case is remanded to the Immigration Judge to provide the
respondent an opportunity to establish that the respondent actually
and specifically relied upon the availability of section 212(c)
discretionary relief at the time the plea was entered. . . .Accordingly,
the record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion.
Absent is any jurisdictional limitation. Under Patel, the second IJ had the authority to
reexamine issues.
Observance of the law of the case doctrine is discretionary. Ingle v. Circuit City,
408 F.3d 592, 594 (9th Cir. 2005). Given our adoption of the rule in Matter of Patel, we
decline to apply the law of the case doctrine to the first IJ's non-final administrative
decision. See Fernandes, 619 F.3d at 1074. Because Petitioner’s removability had not
been determined by a final order when the BIA remanded the case to the second IJ, res
judicata and collateral estoppel principles are inapplicable. See Hooker v. Klein, 573
F.2d 1360, 1367-68 (9th Cir. 1978).
2. Due Process
Deportation proceedings violate due process if the alien does not receive a full and
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fair hearing and suffers prejudice as a result of the inadequate proceedings. See Acewicz
v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993). “A due process violation occurs where ‘(1)
the proceeding was so fundamentally unfair that the alien was prevented from reasonably
presenting his case, and (2) the alien demonstrates prejudice, which means that the
outcome of the proceeding may have been affected by the alleged violation.’” Lacsina
Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009).
In Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000), an IJ who repeatedly interrupted
the petitioner and “behaved not as a neutral fact-finder interested in hearing the
petitioner's evidence, but as a partisan adjudicator seeking to intimidate” was held not to
have allowed the petitioner a reasonable opportunity to present his case. Id. at 971. At
the same time, an IJ is permitted to “interrogate, examine, and cross-examine the alien
and any witnesses” in removal proceedings. 8 U.S.C. §1229a(b)(1); see, e.g. Acewicz, 984
F.2d at 1063. Although the second IJ appeared impatient with Petitioner’s responses, he
allowed Petitioner to testify and his questions appeared aimed at clarifying the record.
Additionally, despite doubt about Petitioner’s alleged inability to find a lawyer and
reasons for requesting a continuance, the IJ granted Petitioner's request for a
continuance. Furthermore, while the second IJ allowed a witness to testify for some time
without the presence of Petitioner’s counsel, Petitioner’s counsel eventually appeared
and was able to cross examine all witnesses. The record demonstrates that Petitioner was
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given a reasonable opportunity to present evidence and had a hearing that comported with
due process requirements.
3. BIA Ruling on Voluntariness
The test for the admissibility of evidence in deportation proceedings is whether the
evidence is probative and whether its use is fundamentally fair so as not to deprive the
alien of due process. See Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997). There were
no allegations or findings here of physical violence being used against Lopez-Andrade.
“In psychological coercion cases, we must consider the totality of the circumstances
involved and their effect upon the will of the defendant.” United States v. Miller, 984
F.2d 1028, 1031 (9th Cir. 1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226–27
(1973). The pivotal question is whether defendant's will was overborne when the
defendant confessed. Schneckloth, 412 U.S. at 225–26. Here, although the Petitioner was
held for almost 24 hours, there is no conclusive evidence that he was threatened, offered
promises, deprived of access to medication or food such that his statements were made
under egregious conditions or that they were coerced.
PETITION FOR REVIEW DENIED.
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