Editor's Comments of the Day

The 9th Circuit in Larita-Maritnez v. INS, No. 98-71452 (9th Cir. July 21, 2000), in affirming the Board of Immigration Appeal's decision has committed the same error it recently found required a remand in another case. Larita-Martinez conceded deportability and applied for suspension of deportation. Petitioner claimed that separation from his aunt and uncle who were in the United States would constitute an extreme hardship. After the denial by the Immigration Judge but before the decision by the Board of Immigration Appeals petitioner's aunt and uncle were granted permanent resident status and petitioner advised the BIA. The BIA affirmed the IJ's decision stating, "we have reviewed the record of proceedings, the Immigration Judge's decision and the respondent's contentions on appeal." The petitioner appealed the BIA's decision on the grounds that it was an abuse of discretion for the Board to deny the application for suspension without specifically mentioning all relevant evidence in the decision. The 9th Circuit determined that the appropriate standard of review was not abuse of discretion, but whether petitioner's 5th Amendment due process right to a full and fair hearing had been violated.

The Court held that an alien attempting to establish that the Board of Immigration Appeals violated his right to due process by failing to consider relevant evidence must overcome the presumption that the Board did review the evidence. The Court then goes on to dismiss petitioner's argument that the Board did not consider the evidence by citing the definition of "record of proceedings," in the federal regulations which includes "documents submitted in support of appeals." Following this reasoning creates an irrebutable presumption that the Board has reviewed all the evidence because merely reciting the words "record of proceedings" would preclude the argument that the Board did not consider evidence even if not specifically mentioned in its decision.

The Court's holding in Larita-Martinez contradicts its recent decision in Singh v. INS, No. 98-70663 (9th Cir. May 25, 2000). In that case the 9th Circuit found the BIA had erred when it created a new evidentiary standard and then denied the appeal for failure to meet that standard. The court wrote, "the failure to give notice and an opportunity to respond in the face of ever shifting evidentiary standards denied Singh a full and fair hearing." The 9th Circuit has done the very same thing here creating a new standard of a presumption that the Board considered the evidence, and then denying the petitioner an opportunity for a full and fair hearing under that standard.