FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARACELI CRUZ RENDON,
Petitioner, No. 06-70301
v.
Agency No.
A70-942-106
ERIC H. HOLDER JR., Attorney
General,* OPINION
Respondent,
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 8, 2009—Pasadena, California
Filed December 2, 2009
Before: Harry Pregerson and David R. Thompson,
Circuit Judges, and Jeremy Fogel, District Judge**
Opinion by Judge Fogel
*Eric H. Holder Jr. is substituted as the defendant pursuant to Fed. R.
App. P. 43(c)(2).
**The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
15779
15782 CRUZ RENDON v. HOLDER
COUNSEL
Sung U. Park, Los Angeles, California, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division;
Linda S. Wernery, Assistant Director; and Dimitri N. Rocha,
Attorney, United States Department of Justice, Washington,
DC, for the respondent.
CRUZ RENDON v. HOLDER 15783
OPINION
FOGEL, District Judge:
Petitioner Araceli Cruz Rendon (“Cruz Rendon”), a native
and citizen of Mexico, seeks review of the decision of the
Board of Immigration Appeals (“BIA”) affirming the denial
of her application for cancellation of removal by the Immigra-
tion Judge (“IJ”). Cruz Rendon claims that the “exceptional
and extremely unusual hardship” requirement of 8 U.S.C.
§ 1229b(b)(1) violates the Equal Protection Clause of the
United States Constitution, and that the IJ denied her a full
and fair hearing in violation of the Due Process Clause. We
have jurisdiction pursuant to 8 U.S.C. § 1252. We agree that
the IJ denied Cruz Rendon a full and fair hearing and that this
prejudiced Cruz Rendon’s ability to present evidence in sup-
port of her application for cancellation of removal. Accord-
ingly, we grant the petition for review and remand to the BIA
with instructions to order a new hearing before the IJ.
BACKGROUND
Cruz Rendon entered the United States illegally at some
time after January 1, 1990. In 2004, the government initiated
removal proceedings against her. Cruz Rendon appeared
before IJ Anna Ho on November 15, 2004 and requested a
continuance so that she could retain counsel; the IJ granted a
one-month continuance until December 16, 2004. On that
date, Cruz Rendon appeared with counsel, conceded remov-
ability, and requested cancellation of removal pursuant to 8
U.S.C. § 1229b(b)(1)1 or, in the alternative, voluntary depar-
1
Section 1229b(b)(1) gives the Attorney General discretion to cancel the
removal and adjust the status of an alien if the alien: (1) has been physi-
cally present in the United States for a period of at least ten years; (2) has
been a person of good moral character during such period; (3) has not
been convicted of one of a list of enumerated offenses; and (4) establishes
that removal “would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child who is a citizen or lawful permanent
resident of the United States.” 8 U.S.C. § 1229b(b)(1).
15784 CRUZ RENDON v. HOLDER
ture. The IJ continued the matter one additional month for a
merits hearing, which was conducted as scheduled on January
14, 2005. At the start of the hearing, the IJ indicated that Cruz
Rendon had satisfied the first three requirements of
§ 1229b(b)(1), and that the application turned on the fourth
requirement, that is, whether Cruz Rendon’s removal “would
result in exceptional and extremely unusual hardship” to her
four-year-old United States citizen child, Jose.
Psychological Evaluation
Cruz Rendon presented a written psychological evaluation
of Jose that had been prepared approximately one week
before the merits hearing. The report noted that Jose was born
in the United States, was bilingual, and attended a public pre-
school, and that Cruz Rendon supported herself and Jose by
ironing for a clothing manufacturer. The report stated that
Jose displayed symptoms of Attention Deficit/Hyperactivity
Disorder (“ADHD”), and that children with ADHD do not
respond well to changes in environment or in caretakers. The
report also indicated that Jose might have learning and speech
disabilities. The report concluded that separation from his
mother or relocation to Mexico would create emotional dis-
tress for Jose and would worsen his problems. The report rec-
ommended that Jose be given a “thorough psychoeducational
assessment” to determine his needs.
The IJ orally summarized the written evaluation as follows:
“the psychologist seem [sic] to indicate that the child may be
suffering from attention deficit, but he doesn’t know. Also,
the child may have speech therapy, but he doesn’t know.” The
IJ then stated that “[t]he mere fact that a child may have atten-
tion deficit, and even if he did have attention deficit, does not
mean that he cannot have proper treatment in Mexico.” The
IJ indicated that Cruz Rendon had not presented evidence as
to lack of opportunity for treatment in Mexico, and then
stated, “[b]esides, the child is only 4-years-old.” The IJ
directed Cruz Rendon’s counsel to present evidence of excep-
CRUZ RENDON v. HOLDER 15785
tional and extremely unusual hardship to Jose, but limited
such evidence to matters not addressed in the psychological
evaluation.
Cruz Rendon’s Testimony
Cruz Rendon began her substantive testimony by discuss-
ing her concerns that Jose was hyperactive, had difficulty
learning, and had problems speaking. The IJ cut off Cruz Ren-
don’s testimony, stating that the psychologist had addressed
these issues in the written report. When counsel later tried to
revisit Cruz Rendon’s concerns, the IJ stated that “I believe
the psychologist’s evaluation is much better than what this
lady has to tell me.” The IJ also interrupted counsel when he
attempted to ask Cruz Rendon where she was employed, stat-
ing that Cruz Rendon’s employment history was covered in
the report.
Cruz Rendon testified that she feared Jose would suffer if
he had to go to school in Mexico, because based upon her
own childhood experience she believed that children often are
mistreated and beaten in Mexican schools. The IJ inquired
whether counsel had other evidence regarding Mexican
schools. When counsel responded that he had not had time to
obtain such evidence, the IJ stated that “your case has been
pending and there’s no reason why you could not go on the
internet to print some information about schools in Mexico.”
Counsel then asked Cruz Rendon about her ability to pro-
vide for Jose if they were to relocate to Mexico. Cruz Rendon
testified that it would be difficult to manage, because her only
family member in Mexico was her mother, who was elderly
and lacked the patience to care for Jose. Cruz Rendon testified
that Jose’s father left when Jose was born and did not contrib-
ute to Jose’s support. She stated that she would not be able to
buy Jose sufficient food and clothing in Mexico, because she
likely would earn less than five or ten dollars a day there. The
15786 CRUZ RENDON v. HOLDER
IJ cut off that line of questioning because Cruz Rendon had
not actually looked for a job in Mexico.
Counsel then attempted to return to the issue of Jose’s med-
ical issues, but was interrupted by the IJ, who stated,
I ask you, counsel, not to go into anything that’s
already in the psychologist’s report. I mean, you
have given me a — oh, how many pages is this —
a 21 page report by the psychologist. I don’t want to
hear anything that’s already in the report. Anything
else?
Counsel made a final attempt to ask Cruz Rendon about her
fears for Jose if they relocated to Mexico, at which point the
IJ stated “[a]nything else? We’ve gone over this, over the
same things over and over again.” Counsel then concluded his
examination of Cruz Rendon.
Oral Ruling of the IJ
At the close of the hearing, the IJ stated that Cruz Rendon’s
application for cancellation of removal would be denied. Cruz
Rendon’s counsel requested leave to give a brief closing
before the IJ completed her oral ruling; the IJ denied that
request. The IJ then stated as follows:
I have reviewed the detailed analysis by the psychol-
ogist. The child is, as I said, only 4-years-old. There
is no definite indication as to exactly what the prob-
lem the child has. There is no evidence presented by
the psychologist that whatever the hyperactivity this
child had, the child is not going to grow out of it as
the child grows older. I don’t know. There is no evi-
dence presented that there is no such assistance in
Mexico, so I can’t grant this case. There is no, you
have not met your burden of exceptional and
extremely unusual hardship.
CRUZ RENDON v. HOLDER 15787
Cruz Rendon’s counsel pointed out that less than one
month had elapsed between Cruz Rendon’s first appearance
with counsel on December 16, 2004 and her merits hearing on
January 14, 2005. The IJ stated that “giving [Cruz Rendon]
another 3 to 6 months is not going to help in this case.” When
counsel persisted in asserting that Cruz Rendon had not had
an adequate opportunity to present her case, and noted that
Jose’s school had recommended that Jose be evaluated fur-
ther, the IJ responded as follows:
That’s fine. But, there’s no evidence presented by
you that no such assistance is available in Mexico.
In fact, I have read many articles that they have spe-
cial education in Mexico. And, Mexico is really try-
ing very hard to work on this. So, unless you give
me evidence, she has not met her burden. All right?
The IJ then granted Cruz Rendon voluntary departure.
Written Decision of the IJ
On January 14, 2005, the same date that the merits hearing
was conducted, the IJ issued a written order denying Cruz
Rendon’s application for cancellation of removal.
Decision of the BIA
Cruz Rendon appealed the IJ’s decision to the BIA, assert-
ing inter alia that the IJ’s limitation of her testimony and
denial of her request for an additional continuance deprived
her of the opportunity to present her case. On January 10,
2006, the BIA issued a written decision adopting and affirm-
ing the IJ’s decision, citing Matter of Burbano, 20 I. & N.
Dec. 872, 874 (BIA 1994). The BIA found expressly that
Cruz Rendon received a full and fair hearing and that the IJ
had not erred in denying her request for a continuance.2
2
The BIA also noted that Cruz Rendon had not submitted an additional
evaluation of Jose while her appeal was pending. However, submission of
15788 CRUZ RENDON v. HOLDER
STANDARD OF REVIEW
When the BIA adopts and affirms the IJ’s decision with a
citation to Burbano, and does not disagree with any part of the
IJ’s decision, we review the IJ’s decision as if it were the
decision of the BIA. Ahmed v. Holder, 569 F.3d 1009, 1012
(9th Cir. 2009); Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th
Cir. 2005) (en banc). When the BIA adds its own reasoning,
we review both decisions. Nuru v. Gonzales, 404 F.3d 1207,
1215 (9th Cir. 2005).
We review for abuse of discretion an IJ’s denial of a con-
tinuance. Ahmed, 569 F.3d at 1012. We review de novo
claims of equal protection and due process violations in
removal proceedings. Sandoval-Luna v. Mukasey, 526 F.3d
1243, 1246 (9th Cir. 2008).
ANALYSIS
[1] “An alien is entitled to a ‘full and fair hearing’ that
meets the requirements of due process.” Vargas-Hernandez v.
Gonzales, 497 F.3d 919, 926 (9th Cir. 2007) (quoting
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)).
“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.” Cinapian v.
Holder, 567 F.3d 1067, 1074 (9th Cir. 2009). In order to pre-
vail on such a claim, the alien must demonstrate that the chal-
lenged proceeding “was so fundamentally unfair that the alien
was prevented from reasonably presenting his case.” Colme-
additional factual evidence to the BIA regarding Jose’s medical condition
would not have been appropriate, as the BIA does not engage in fact find-
ing on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (prior version effective Apr.
1, 2005 — Dec. 6, 2006) (“Except for taking administrative notice of com-
monly known facts such as current events or the contents of official docu-
ments, the Board will not engage in fact finding in the course of deciding
appeals.”).
CRUZ RENDON v. HOLDER 15789
nar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal quota-
tion marks and citation omitted). The alien also must show
prejudice, “which means that the outcome of the proceeding
may have been affected by the alleged violation.” Id.; see also
Vargas-Hernandez, 497 F.3d at 926 (“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 vio-
lated in a manner so as potentially to affect the outcome of the
proceedings”) (internal quotation marks and citation omitted).
[2] Cruz Rendon claims that the IJ denied her a full and fair
hearing by unreasonably limiting her testimony and denying
her request for a continuance. We agree.3 The IJ precluded
Cruz Rendon from testifying as to any topic that was men-
tioned at all in the psychological evaluation. Because that
evaluation contained background information about both Cruz
Rendon and Jose and discussed Jose’s medical and educa-
tional issues, the IJ precluded Cruz Rendon from offering any
significant testimony of her own regarding the life she had
created for Jose in the United States, Jose’s medical and edu-
cational needs, and the hardships Jose 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. See In Matter of Monreal, 23 I. & N. Dec. 56, 63-64
(BIA 2001) (stating that the age, health, and circumstances of
qualifying citizen relatives must be considered, as well as
adverse conditions in the country of return, and noting that 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 each of these factors to some
3
In light of our disposition of the appeal on due process grounds, we
need not reach Cruz Rendon’s alternative claim that the “exceptional and
extremely unusual hardship” requirement of 8 U.S.C. § 1229b(b)(1) vio-
lates the Equal Protection Clause. We note, however, that Cruz Rendon’s
equal protection claim turns upon her ability to demonstrate that the treat-
ment of her son “differed from that of similarly situated persons.” See Dil-
lingham v. INS, 267 F.3d 996, 1007 (9th Cir. 2001).
15790 CRUZ RENDON v. HOLDER
degree, Cruz Rendon should have been permitted to provide
her own account of the matters discussed in the report. The IJ,
however, repeatedly interrupted Cruz Rendon’s testimony
when it touched upon subject matter “already in the report.”
[3] During the hearing, the IJ indicated that Cruz Rendon
had not presented sufficient evidence that Jose had special
needs or that such needs could not be met by the schools in
Mexico. However, when Cruz Rendon’s counsel requested a
continuance to obtain additional evidence, the IJ denied the
request. “The decision to grant or deny the continuance is
within ‘the sound discretion of the judge and will not be over-
turned except on a showing of clear abuse.’ ” Ahmed, 569
F.3d at 1012 (quoting Sandoval-Luna, 526 F.3d at 1247).
However, this discretion is not without limits. Ahmed, 569
F.3d at 1012. When determining whether an IJ has abused her
discretion, we consider 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 con-
duct; (3) the inconvenience to the court; and (4) the number
of continuances previously granted. Id.
[4] A continuance would have afforded Cruz Rendon time
to obtain additional evaluations regarding Jose’s medical and
educational issues, including the full assessment recom-
mended by the psychologist, as well as evidence regarding the
type of support she could obtain for Jose in the Mexican
school system. The need for a continuance did not result from
any unreasonable conduct on Cruz Rendon’s part. Although
Cruz Rendon previously had received two continuances, both
were exceedingly short; as her counsel pointed out, the merits
hearing occurred two months after Cruz Rendon’s initial
appearance and less than one month after Cruz Rendon first
appeared with counsel. Cruz Rendon’s inability to marshal
significant documentary evidence in this short time frame is
unsurprising.
Respondent makes much of the fact that the IJ initially
offered to set the merits hearing three months after counsel’s
CRUZ RENDON v. HOLDER 15791
initial appearance, and that it was only because of counsel’s
scheduling conflicts that the merits hearing finally was set
only one month out. The IJ initially did propose later dates for
the merits hearing. However, she became increasingly testy
with Cruz Rendon’s counsel when he disclosed conflicts with
her proposed dates; by the time she suggested the date ulti-
mately selected, any reasonable attorney likely would have
acquiesced.
A further continuance would not have inconvenienced the
court, except to the extent that the IJ wanted the case off her
docket. On this last point, the IJ stated that:
Just because other cases pend, stays pending in a
court more than 2 or 3 years does not mean that this
court has to allow a case to stay open for 2 or 3
years. And I am not going to do that, because when
you delay one case, you delay three other cases.
[5] Each of the foregoing factors favored the grant of a con-
tinuance in Cruz Rendon’s case. To the extent that the IJ gave
them any consideration, she appeared most concerned with
the purported inconvenience to herself resulting from delay of
the case. “We have repeatedly warned that ‘a myopic insis-
tence upon expeditiousness’ will not justify the denial of a
meritorious request for delay.” Ahmed, 569 F.3d at 1013
(quoting Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir.
2008)). Accordingly, we conclude that the IJ abused her dis-
cretion in denying the continuance.
[6] We have no difficulty concluding that the denial of the
requested continuance, in conjunction with the limitations
placed upon her testimony, prevented Cruz Rendon from fully
and fairly presenting her case. We likewise conclude that the
outcome of the hearing may have been affected by these pro-
cedural deficiencies. The IJ stated repeatedly that Jose was
“only” four years old, and apparently formed the opinion that
Jose might simply outgrow his problems. Had Cruz Rendon
15792 CRUZ RENDON v. HOLDER
been permitted to offer more detail about Jose’s medical and
educational issues, and had a continuance been granted to per-
mit the further evaluation recommended by Jose’s psycholo-
gist, the IJ’s conclusion might have been different. Moreover,
had Cruz Rendon been afforded time to obtain evidence
regarding the schools in Mexico, the IJ might not have relied
impermissibly upon her own unsupported opinion that Mex-
ico “is really trying very hard to work on [special education].”4
PETITION FOR REVIEW GRANTED; REMANDED
WITH INSTRUCTIONS.
4
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. See, e.g., Shi v. Holder, No. 05-72223, 2009 WL
2171407, at *1 (9th Cir. June 26, 2009) (finding that IJ Ho exhibited “ob-
vious bias” when she “badgered Shi with loaded, pejorative questions and
effectively abandoned her role as a neutral fact finder”); Smolniakova v.
Gonzales, 422 F.3d 1037, 1047 n.2 (9th Cir. 2005) (suggesting that IJ Ho
may have “improper hostility towards asylum applicants who appear
before her”); Rivera v. Ashcroft, 394 F.3d 1129, 1135 (9th Cir. 2005)
(holding that IJ Ho “did not conduct herself as an impartial judge but
rather as a prosecutor anxious to pick holes in the petitioner’s story”)
(internal quotation marks and citation omitted)).