LARITA MARTINEZ v INS, 9871452
U.S. 9th Circuit Court of Appeals
LARITA MARTINEZ v INS
9871452
JOSE GUADALUPE LARITA-MARTINEZ,
Petitioner, No. 98-71452
v. INS No.
A74-429-409
IMMIGRATION AND NATURALIZATION
SERVICE, OPINION
Respondent.
Petition to Review a Decision of the
Immigration and Naturalization Service
Argued and Submitted
May 5, 2000--Pasadena, California
Filed July 21, 2000
Before: J. Clifford Wallace, Stephen S. Trott, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Wallace
_________________________________________________________________
COUNSEL
Anthony J. Parker and Denis W. Campbell, Law Offices of
Curiel & Parker, Santa Monica, California, for the petitioner.
Kurt B. Larson, Office of Immigration Litigation, Civil Divi-
sion, United States Department of Justice, Washington, D.C.,
for the respondent.
_________________________________________________________________
OPINION
WALLACE, Circuit Judge:
Larita-Martinez, a citizen of Mexico, petitions for review of
the Board of Immigration Appeals' (Board) denial of his
application for suspension of deportation. We have jurisdic-
tion over this timely petition pursuant to 8 U.S.C.S 1105a, as
amended by section 309(c) of the Illegal Immigration Reform
and Immigrant Responsibility Act (Reform Act), Pub. L. No.
104-208, 110 Stat. 3009-546, 3009-625 to -627 (1996). We
deny the petition.
I
Larita-Martinez entered the United States from Mexico
without inspection in 1989 when he was fourteen years old.
Except for a period of one week, during which he returned to
Mexico to visit his then-ill mother, he has lived continuously
in the United States. After receiving an order to show cause,
he conceded deportability and applied for suspension of
deportation and, alternatively, voluntary departure.
At his deportation hearing, Larita-Martinez testified about
his close relationship with his extended family in the United
States, including his uncle and aunt. He stated that they "are
my family. They're the only persons that I have, so I feel very
close to them. I want to help them and we help each other . . .
succeed in this country." Larita-Martinez's counsel argued
during summation that Larita-Martinez's separation from
these extended relatives would be an extreme hardship to him.
The immigration judge (IJ) considered this hardship and nev-
ertheless concluded that this separation "is typical of suspen-
sion cases." He thus denied Larita-Martinez's application for
suspension of deportation.
Larita-Martinez appealed to the Board. Before the Board
issued its decision, Larita-Martinez advised the Board that his
uncle and aunt had received permanent residency in the
United States.
The Board affirmed the IJ's denial of Larita-Martinez's
application for suspension of deportation. The Board stated:
The respondent's appeal . . . is dismissed. We
have reviewed the record of proceedings, the Immi-
gration Judge's decision, and the respondent's con-
tentions on appeal. As we find that the Immigration
Judge adequately and correctly addressed the issues
raised, his decision is affirmed based upon and for
the reasons set forth therein.
In short, despite the respondent's arguments to the
contrary, the record discloses no basis for concluding
that he would suffer extreme hardship over and
above the normal economic and social disruptions
involved in deportation. Based on the foregoing, we
affirm the Immigration Judge's decision finding that
the respondent failed to establish extreme hardship.
(Citations and footnote omitted.)
II
Larita-Martinez's sole argument is that we should grant his
petition and remand to the Board because it did not consider
the supplemental evidence he filed on appeal that his uncle
and aunt are now permanent residents of the United States. He
cites cases holding that it is an abuse of discretion to deny an
application for suspension of deportation without specifically
mentioning all relevant evidence in the decision.
The problem with these citations is that we no longer
review denials of applications for suspension of deportation
for abuse of discretion. In section 309(c)(4)(E) of the Reform
Act, part of the Reform Act's transitional appellate jurisdic-
tional scheme, Congress stripped us of jurisdiction to review
the discretionary aspects of a decision to deny an application
for suspension of deportation. Pub. L. No. 104-208, 110 Stat.
at 3009-626; see also Kalaw v. INS, 133 F.3d 1147, 1150-52
(9th Cir. 1997). Larita-Martinez's petition is governed by the
transitional rules of the Reform Act because the Board's final
order was entered after October 30, 1996, and deportation
proceedings were pending before April 1, 1997. Hose v. INS,
180 F.3d 992, 995 (9th Cir. 1999) (en banc).
Recognizing that section 309(c)(4)(E) and Kalaw require
more than a mere showing of abuse of discretion, Larita-
Martinez clothes his argument in due process garb, contend-
ing that the Board ignored his supplemental evidence. Despite
Reform Act section 309(c)(4)(E), we maintain jurisdiction to
review whether the Board violated an alien's due process
rights pursuant to 8 U.S.C. S 1105a. Reform Act S 309(c)(1);
Antonio-Cruz v. INS, 147 F.3d 1129, 1130 & n.3 (9th Cir.
1998). "Whether a deportation proceeding violated an alien's
due process rights is reviewed de novo." Carr v. INS, 86 F.3d
949, 951 (9th Cir. 1996).
[1] Aliens in deportation proceedings are "entitled to the
fifth amendment guaranty of due process." Cuadras v. INS,
910 F.2d 567, 573 (9th Cir. 1990). Due process "is satisfied
only by a full and fair hearing," id., which requires that each
case "be evaluated on its own merits to determine whether the
alien's factual support and concrete evidence are sufficient"
to meet the alien's burden of proof. Sarvia-Quintanilla v. INS,
767 F.2d 1387, 1392 (9th Cir. 1985). "To prevail on a due
process challenge to deportation proceedings, [an alien] must
show error and substantial prejudice. A showing of prejudice
is essentially a demonstration that the alleged violation
affected the outcome of the proceedings; we will not simply
presume prejudice." Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000) (citations omitted).
[2] We first examine whether the Board committed an error
constituting a due process violation. There is no administra-
tive rule requiring the Board to review all relevant evidence
submitted on appeal. It is beyond argument, however, that the
Due Process Clause requirement of "a full and fair hearing,"
Cuadras, 910 F.2d at 573, mandates that the Board do so in
its capacity as a reviewing tribunal. Indeed, it is so expected
that a court would review all relevant materials in the record
that reviewing courts have presumed it. See Man v. INS, 69
F.3d 835, 838 (7th Cir. 1995) ("[A]bsent evidence to the con-
trary, we assume that the BIA reviewed the specific findings
of the immigration judge in light of the record . . . ."); see also
Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir.
1986) ("We presume that a fact finder reviews all the evi-
dence presented unless [it] explicitly expresses otherwise.").
We embrace the view of our sister circuits and hold that an
alien attempting to establish that the Board violated his right
to due process by failing to consider relevant evidence must
overcome the presumption that it did review the evidence.
Larita-Martinez points to two facts that he suggests show
that the Board did not consider the supplemental evidence: (1)
the Board did not specifically mention the evidence, and (2)
the Board affirmed the IJ's decision "based upon and for the
reasons set forth therein," which reasons could not have
included the supplemental evidence since it was not available
when the IJ made its decision. The question before us is
whether these facts overcome the presumption that the Board
reviewed the record, including the supplemental evidence.
[3] As to the first contention, even though the Board did not
explicitly mention the supplemental evidence, it plainly stated
that it reviewed the "record of proceedings." That term, as
defined in Immigration and Naturalization Service (INS) reg-
ulations, refers broadly to all documents related to an alien's
INS proceedings and specifically includes "documents sub-
mitted in support of appeals." 8 C.F.R. S 103.8(d). Thus,
when the Board stated that it reviewed the "record of proceed-
ings," it explicitly meant that it reviewed the "documents sub-
mitted in support of [Larita-Martinez's] appeal[ ]," which
includes the supplemental evidence. Further, the Board stated
that it reviewed Larita-Martinez's "contentions on appeal."
Those contentions include the argument that Larita-
Martinez's supplemental evidence supported his suspension
of deportation application.
[4] As to the second contention, that the Board affirmed the
IJ's decision "based upon and for the reasons set forth there-
in," does not mean that the Board blindly rubber stamped the
IJ's decision. In fact, after the Board adopted the IJ's deci-
sion, it independently concluded that Larita-Martinez had not
shown extreme hardship. Additionally, it is evident that the
Board completed legal research independent from the IJ: it
cited Shooshtary v. INS, 39 F.3d 1049 (9th Cir. 1994), which
the IJ did not cite. That case directly addresses the type of
hardship Larita-Martinez alleged:
The uprooting of family, the separation from friends,
and other normal processes of readjustment to one's
home country after having spent a number of years
in the United States are not considered extreme, but
represent the type of inconvenience and hardship
experienced by the families of most aliens in the
respondent's circumstances.
Id. at 1051.
[5] The Board's independent analysis, together with its
Shooshtary citation, counter Larita-Martinez's argument that
the Board did not consider his supplemental evidence on
appeal. Because he has not rebutted the presumption that the
Board considered his supplemental evidence, he fails to show
a due process error, and it is therefore unnecessary to analyze
the second requirement: whether he has established substan-
tial prejudice because of the Board's alleged lack of review.
PETITION DENIED.