Vazquez-Martinez v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-4-2004
Vazquez-Martinez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2990
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-2990
____________
FIDENCIO VAZQUEZ-MARTINEZ,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
____________
On Petition for Review of an Order of the Board of Immigration Appeals
INS No. A75-798-556
____________
Submitted Under Third Circuit LAR 34.1(a)
April 10, 2003
Before: BARRY and ROSENN, Circuit Judges, POLLAK, District Judge*
(Filed: May 4, 2004)
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge:
*
Honorable Louis H. Pollak, Senior District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
Fidencio Vazquez-Martinez (“Vazquez”) timely appeals the laconic order of the
Board of Immigration Appeals (“BIA”) denying his application for cancellation of
removal. An Immigration Judge (“IJ”) initially conducted a hearing and denied the
application because Vazquez did not demonstrate that removal would impose extreme
hardship. Vazquez appealed to the BIA, presenting two new claims that were not raised
at the prior hearing. The BIA, without explicitly addressing either new claim, summarily
affirmed the IJ pursuant to the “Streamlining Regulations” in 8 C.F.R. § 1003.1(a)(7).
Because the BIA’s summary affirmance leaves this court with no record or explanation to
review regarding the new claims, we must remand this case to the BIA for further
consideration and opinion.
I.
Vazquez entered the United States without inspection from his native Mexico in
1986, at the age of nineteen. He lived in the United States with his wife and five United
States citizen children until 1998, at which time the INS charged him with removability.
Vazquez conceded removability, but sought cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1), which authorizes cancellation where the applicant (A) has been in the
United States continuously for ten years; (B) has been a person of good moral character
during such period; (C) has not committed certain crimes; and (D) establishes that
removal would result in exceptional and extremely unusual hardship to the alien’s spouse,
parent, or child who is a U.S. citizen or lawfully admitted permanent resident. At the
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hearing before the IJ, the Government conceded that Vazquez met the first three prongs
under § 1229b(b)(1), but contested the hardship prong.
During the administrative hearing, the IJ admonished Vazquez’s attorney for
several glaring errors. For example, the attorney failed to submit documentation
regarding Vazquez’s claims of hardship. The attorney also failed to complete all portions
of the application for cancellation of removal, even after the IJ requested that he do so.
The IJ also expressed frustration with the attorney after it became clear that he had not
prepared Vazquez for sensitive questions regarding the immigration status of his family
members living in the United States. To exacerbate the situation, Vazquez’s attorney, on
the record, blamed Vazquez for this poor preparation. The IJ informed Vazquez that he
could file a grievance against his attorney if dissatisfied with the attorney’s performance.
In an oral opinion, the IJ held that although Vazquez fulfilled the first three
prongs for cancellation of removal, he failed to show the requisite hardship. The IJ
observed that “exceptional and extremely unusual hardship” must be shown, and that the
hardship faced by Vazquez and his family did not rise to this level.
After the IJ issued his decision, Vazquez learned that one of his sons was
diagnosed with asthma and required specialized medical treatments. After retaining new
counsel, Vazquez appealed the IJ’s decision to the BIA, arguing that he received
ineffective assistance of counsel, and that the BIA should consider the newly discovered
evidence regarding his son’s health in determining whether removal to Mexico would
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constitute hardship. Rather than issuing an opinion addressing these two new claims, the
BIA invoked its summary affirmance procedure, 8 C.F.R. § 1003.1(a)(7), and adopted the
IJ’s decision.
II.
At the time this case originally came before us, our court en banc was preparing to
hear Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003)(en banc), which presented a challenge
to the same Streamlining Regulations at issue in this case. We therefore suspended this
case, pending our decision in Dia. In Dia, we upheld the BIA’s Streamlining
Regulations, finding them to be a permissible exercise of the Attorney General’s
regulatory authority under the Immigration and Nationality Act (INA). Id. at 245. We
also held that the regulations did not violate an applicant’s due process rights under the
Fifth Amendment when the BIA simply affirmed an IJ’s decision. Id. Therefore, in
considering this case we do not review the facial legality of the Streamlining Regulations,
but focus instead on whether the BIA’s application of the regulatory procedure was
appropriate in this instance.
Also subsequent to our suspension of disposition of this case, this court ruled that
the question of whether an alien meets the hardship requirement in 8 U.S.C.
§ 1229b(b)(1)(D) is beyond the court’s jurisdiction for review under 8 U.S.C.
§ 1252(a)(2)(B) because it is a matter reserved for the Attorney General’s discretion.
Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). Thus, our review is
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limited to Vazquez’s new claims regarding ineffective assistance of counsel and
reconsideration for newly discovered evidence.
The Government argues that Vazquez’s ineffective assistance claim is
procedurally barred because he failed to meet the requirements established in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988)(requiring an ineffective assistance claim to
include a supporting affidavit attesting (1) to the petitioner’s agreement with counsel
regarding scope of representation; (2) that petitioner informed counsel of the
ineffectiveness accusation and permitted him or her an opportunity to respond; and (3)
that a complaint was filed with the appropriate bar association). Furthermore, the
Government claims that despite any new evidence of Vasquez’s son’s asthma, Vazquez
presented no evidence showing that treatment of the condition would not be available in
Mexico.
The Government is persuasive in both arguments. However, we may not accept
the Government’s position as an advocate in place of a reasoned opinion from the BIA.
Despite the IJ’s criticism of Vazquez’s counsel’s conduct in the administrative hearing,
the BIA made no mention of either Vazquez’s ineffective assistance or newly discovered
evidence claims, and summarily affirmed. Thus, we are not in a position to conduct
meaningful review of those claims. Instead, we are asked to sit as a de facto court of first
instance.
This court’s “statutory obligation of review” requires our consideration of whether
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the BIA’s proceedings were conducted with regularity, and whether the final agency
action was arbitrary. See, e.g., Sotto v. INS, 748 F.2d 832, 837 (3d Cir. 1984). Recently
in Awolesi v. Ashcroft, 341 F.3d 227 (3d Cir. 2003), we reaffirmed our review
obligation, holding that despite the Streamlining Regulations, the Court of Appeals must
have some insight into the reasoning behind the BIA’s disposition of an appeal, in order
to give meaningful review of a decision that does more than simply affirm an IJ’s
opinion. Id. at 232. Had the BIA’s summary affirmance simply “invoked” the IJ’s
opinion in this case, we would be free to “test” the agency’s action based on the IJ’s
reasoning. See Dia, 353 F.3d at 241. However, the BIA’s opinion did more than simply
affirm. The BIA effectively dismissed Vazquez’s ineffective assistance claim and his
request for reexamination of newly discovered evidence without offering any grounds or
rationale for its action. Based on the record before us, we cannot even be certain that the
BIA was aware of Vazquez’s new claims.
As we noted in Dia, “[w]hen, after scouring the record, we are still unable to
determine the agency’s reasoning, we have remanded to the BIA for further explanation.”
353 F.3d at 244. In this case, we uphold our statutory obligation of review and grant this
petition, vacate the order of the BIA, and remand this case to the BIA for further
consideration not inconsistent with this opinion.
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