Yale Law School

Immigration Litigation Roundtable

November 30 – December 1, 2012

Brainstorming II:

Consular Non-Reviewability

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677 F.3d 849 United States Court of Appeals,

Ninth Circuit.

Hilario RIVAS, Plaintiff–Appellant, v.

Janet NAPOLITANO, Director, U.S. Department of Homeland Security; Michael Aytes, Acting Director of U.S. Citizenship and Immigration

Services; David Douglas, USCIS Los Angeles Field Office Director, Los Angeles District Office USCIS; Eric H. Holder Jr., U.S. Attorney General; Hillary

Rodham Clinton, U.S. Department of State; Raymond McGarth, U.S. Consul General for

Ciudad Juarez, Mexico, Defendants–Appellees.

No. 09–56843. | Filed and Submitted April 25, 2012.*

Synopsis Background: Alien and his daughter brought action to compel immigration authorities to act upon alien’s application for permission to reapply for admission and his letter requesting reconsideration of denial of his application for immigrant visa and alien registration form. The United States District Court for the Central District of California, Valerie Baker Fairbank, J., dismissed complaint, and plaintiffs appealed.

Holdings: The Court of Appeals, Pregerson, Circuit Judge, held that: [1] court lacked jurisdiction to compel immigration authorities to act upon alien’s visa application, and [2] doctrine of consular nonreviewability did not bar federal court’s jurisdiction over alien’s action to require immigration authorities to act upon his request for reconsideration.

Affirmed in part, vacated in part, and remanded. Bea, Circuit Judge, concurred in part, dissented in part, and filed opinion.

Attorneys and Law Firms

*850 Brian D. Lerner and Christopher A. Reed, Law

Offices of Brian D. Lerner, APC, Long Beach, CA, for the plaintiff-appellant.

Scott M. Marconda, Office of Immigration Litigation, District Court Section, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Valerie Baker Fairbank, District Judge, Presiding. D.C. No. 2:09–cv–03287–VBF–MAN.

Before: HARRY PREGERSON, KIM McLANE WARDLAW, and CARLOS T. BEA, Circuit Judges. Opinion Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

PREGERSON, Circuit Judge:

Hilario Alfonso Rivas (“Rivas”) and his daughter Lorena Rivas appeal the district court’s order granting Defendants’ motion to dismiss for lack of subject matter jurisdiction. Rivas submitted an application for an immigrant visa based on an approved I–130 petition filed by his daughter. The United States Consulate in Ciudad Juarez, Mexico, denied Rivas’s immigrant visa application. Rivas moved the district court for an order compelling the Defendants to act upon Rivas’s Permission to Reapply for Admission (“Form I–601”) and his letter requesting reconsideration of the denial of his Application for Immigrant Visa and Alien Registration Form.1 The district court found that the doctrine of consular nonreviewability deprived the court of subject matter jurisdiction to review the consular official’s discretionary decisions. The district court also found that it had no jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., or the Declaratory Judgment Act, 5 U.S.C. § 702. We affirm in part, vacate in part, and remand to the district court.

I. Consular Nonreviewability [1] Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official’s actions *851

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“when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul’s discretion.” Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir.1997). Second, the court has jurisdiction to review a consular official’s actions when the government denies a visa without a “facially legitimate and bona fide reason.” Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008).

II. Rivas’s Form I–601 [2] The district court correctly concluded that neither of the exceptions to the doctrine of consular nonreviewability apply to Rivas’s Form I–601. See Li Hing of Hong Kong, 800 F.2d at 971. The district court concluded that the Defendants submitted evidence that shows that a consular officer rejected Rivas’s Form I–601 on February 5, 2008, and Rivas does not contend otherwise. Because the consular official was required only to accept or reject Rivas’s Form I–601, and he rejected it, Patel’s “fail to take action” exception does not permit us to entertain Rivas’s Form I–601 claim. Nor did the district court err by finding that there is a “facially legitimate and bona fide reason” for the consular official’s rejection of Rivas’s Form I–601. The consular official based his decision to reject Rivas’s immigrant visa application on Rivas’s purported admission to violating Immigration and Nationality Act (“INA”) § 212(a)(6)(E), which provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E). While Rivas contends that he never admitted to violating § 212(a)(6)(E), in his complaint, however, he admits to being arrested on such a charge. Moreover, Rivas also “failed to allege that the consular official did not in good faith believe the information he had.” Bustamante, 531 F.3d at 1062. Thus, the consular official had a “facially legitimate and bona fide reason” for rejecting Rivas’s Form I–601. Id. at 1060. We therefore affirm the district court’s dismissal of Rivas’s claims as to the Form I–601 for lack of subject matter jurisdiction.

III. Rivas’s Request for Reconsideration [3] The district court erred, however, in its finding that the doctrine of consular nonreviewability applies to the consulate’s inaction on Rivas’s request for reconsideration. The “facially legitimate and bona fide reason” exception does not apply to Rivas’s request for reconsideration because the government took no action on the request.2 For the same reason, however, the “fail to take action” exception described in Patel may apply.

The regulation found at 22 C.F.R. § 42.81(e), that governs the procedure in refusing individual visas, is applicable here. It states:

Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an *852 additional application fee shall not be required.

(emphasis added). The mandatory language used in the regulation makes the act of reconsideration non-discretionary when the applicant within a one year period from the denial of a visa “adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based....” Id. Once this is done, consular officials have a duty to reconsider a case and must take action. Because 22 C.F.R. § 42.81(e) by its plain terms imposes a nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility, the district court has subject matter jurisdiction under the Mandamus Act where the government fails to comply with the regulation. See 28 U.S.C. § 1361; Patel, 134 F.3d at 931. Moreover, because the consulate’s attention to requests for reconsideration that fall within 22 C.F.R. § 42.81(e) is legally required, that action may be compelled under the APA. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (the “only agency action that can be compelled under the APA is action legally required ”). Similarly, because resolution of claims for mandamus relief would require implementation of federal regulations, thereby providing a federal question, violations of 22 C.F.R. § 42.81(e) give rise to subject matter jurisdiction under the Declaratory Judgment Act. See Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1161–62 (9th Cir.2005). Rivas submitted his request for reconsideration on August 5, 2008, less than one year after the January 2, 2008 refusal of his visa application. With his request for reconsideration, Rivas submitted records showing arrests—but not convictions—for conspiracy to commit alien smuggling and for harboring illegal aliens. The original rejection of Rivas’s immigration visa application

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was premised on Rivas’s alleged admission to alien smuggling, in violation of INA § 212(a)(6)(E). Defendants, however, have failed to provide any evidence regarding the details of Rivas’s purported admission,3 nor attempted to prove that the supposed admission was valid.4 See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215–16 (9th Cir.2002). Rivas may have admitted only to a 1974 arrest for attempted smuggling, not to conduct that constitutes the essential elements of the crime. If it is true that his admission was only as to the arrest, and there is no evidence that Rivas actually committed, or was convicted of, alien smuggling, then Rivas has submitted “evidence tending to overcome the ground of ineligibility on which the refusal was based” and his case must be reconsidered. 22 C.F.R. § 42.81(e).5 On *853 the other hand, if it is true that Rivas admitted his arrest in his consular interview, then the additional evidence submitted by Rivas would not tend to overcome the ground of ineligibility on which his refusal was based, 22 C.F.R. § 42.81(e) would not apply, and we would lack jurisdiction over his appeal. The record on appeal is insufficient for us to determine whether jurisdiction exists in this case because there is no evidence as to what Rivas actually said in his consular interview.6 Because the jurisdictional questions in this appeal overlap completely with the merits of the question remaining in this case (namely, whether the consulate violated 22 C.F.R. § 42.81(e)), dismissal for lack of subject matter jurisdiction was not appropriate. Such a dismissal is proper only “where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987) (citation and quotation marks omitted). Therefore, we vacate the district court’s dismissal of Rivas’s claims concerning the request for reconsideration and remand for the district court to determine in the first instance whether the court has jurisdiction. “To the extent that the jurisdictional facts are disputed on remand, the parties should be allowed to conduct discovery for the limited purpose of establishing jurisdictional facts before the claims can be dismissed.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 713 (9th Cir.1992). Because disputes exist over (1) whether the consulate received Rivas’s letter containing his motion to reopen and (2) whether Rivas admitted to smuggling in his consular interview on January 2, 2008, “the intertwined jurisdictional facts must be resolved at trial by the trier of fact.” Rosales v. U.S., 824 F.2d 799, 803 (9th Cir.1987). For the foregoing reasons, we AFFIRM the district court’s order dismissing Rivas’s claims as to Form I–601

and VACATE that part of the district court’s order dismissing Rivas’s claims as to his request for reconsideration. We REMAND for the district court to consider whether it has jurisdiction under the Mandamus Act, the APA, and the Declaratory Judgment Act. We remand to the district court for further proceedings consistent with the views expressed in this opinion. Each party shall bear its own costs on appeal. AFFIRMED IN PART, VACATED IN PART, and REMANDED.

BEA, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that the district court correctly concluded that the doctrine of consular nonreviewability prevents the federal courts from reviewing Rivas’ Permission to Reapply for Admission (“Form I–601”). But I would conclude, as did the district court, that because *854 Rivas admitted he violated the law which prohibits alien smuggling, consular nonreviewability also deprives us of subject matter jurisdiction to review Rivas’ letter requesting reconsideration of the denial of his Application for Immigrant Visa and Alien Registration Form (“Reconsideration Letter”). Thus, I respectfully dissent. As the majority states, the federal courts generally do not have jurisdiction to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). This is known as the doctrine of consular nonreviewability. As an exception to the doctrine, a court has jurisdiction to review consular actions “when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul’s discretion.” Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir.1997). Federal regulations govern the procedure in refusing individual visas:

Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.

22 C.F.R. § 42.81(e) (emphasis added).

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Rivas’ visa application was denied because he admitted to a violation of alien smuggling laws in his consular interview. In his Reconsideration Letter, Rivas submitted documents to the consulate showing that Rivas was arrested for conspiracy to commit alien smuggling. The documents also show that Rivas was not convicted of alien smuggling. But did the documents “tend[ ] to overcome the ground of ineligibility” on which the denial of Rivas’ visa was based? Quite the contrary: Rivas failed to rebut his own admission he had smuggled aliens into the United States. Rivas then filed an action in mandamus, declaratory relief and other claims in the Central District of California. Nowhere in the complaint does Rivas deny smuggling aliens. In the facts section, Rivas states that he “was ordered deported on June 2, 1973,” and that when he returned to the United States in 1974, he “was arrested for conspiracy to commit alien smuggling and harboring aliens.” (emphasis added.) Indeed, Rivas appears to admit some violation of law in his complaint: “The one incidence of removal in 1974 should be afforded little weight ... Plaintiff has provided show [sic] the government with evidence that he has been rehabilitated and has been law abiding in the years following this incident.” Defendants filed a Motion to Dismiss under, inter alia, Fed.R.Civ.P. 12(b)(1). Defendants’ main argument was straight-forward:

There is nothing to adjudicate ... Because the consular officer determined that Mr. Rivas was involved in alien smuggling of persons other than his spouse, parent, so, or daughter, he did not qualify [for a visa] ... The Court is without jurisdiction under the doctrine of consular nonreviewability to review the actions of the consular officer in denying the visa application, and lacks jurisdiction to compel the State Department to reopen its decision to deny the visa.

In support of the Motion to Dismiss, Defendants submitted the declaration of Santiago M. Burciaga, the Chief of Immigrant Visas at the Ciudad Juarez consulate (“Burciaga Declaration”).1 Burciaga stated: *855 “[Rivas] was denied an immigrant visa on January 2, 2008. The consular officer determined that [Rivas] is inadmissible as a matter of law, having admitted to a violation of 8 U.S.C.

§ 1182(a)(6)(E).”2,3 Rivas filed an opposition to the Motion to Dismiss, but did not object to, or even mention, the Burciaga Declaration. He merely concluded that “the record does not establish that he is inadmissible under section 212(a)(6)(E) of the [INA].” Nor did Rivas claim on appeal it was error to admit into evidence the Burciaga Declaration. The nondiscretionary duty to reconsider a visa refusal, under 22 C.F.R. § 42.81(e), is triggered only when the applicant adduces evidence tending to overcome the ground of ineligibility. The ground of ineligibility upon which the visa refusal was based was that Rivas had violated the law prohibiting alien smuggling. The evidence Rivas adduced to overcome that ground was that although he had been arrested for alien smuggling, he had not been convicted of alien smuggling. The problem with the sufficiency of his proof is that 8 U.S.C. § 1182(a)(6)(E) does not make ineligible for visas only those who have been convicted of alien smuggling. It bars those who have committed alien smuggling, regardless whether they have escaped conviction. Unfortunately for him, Rivas had already admitted he had committed alien smuggling in violation of section 1182(a)(6)(E), prior to his Reconsideration Letter. The sole remaining point to be discussed is whether the record evidence proves that Rivas indeed did admit to alien smuggling. The majority opinion’s arguments that Rivas did not admit to alien smuggling are unconvincing. First, the majority states that Defendants “have failed to provide any evidence regarding the details of Rivas’s purported admission.” Majority Op. at 852. But if the evidence in the record shows that Rivas admitted to violating the alien smuggling statute, what further “details” would be relevant to a consular official’s decision not to grant a visa account the applicant violated the law against alien smuggling?4 The majority does not grace us with what “details” are necessary to support Rivas admission nor, of course, any case or statute authority that requires such “details.” The majority next states that Defendants have failed to prove that Rivas’ admission was “valid.” Majority Op. at 852 (citing Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215–16 (9th Cir.2002)).5 Pazcoguin *856 dealt with admissions made by aliens in the deportation context. In that context, BIA case law established three requirements for valid admissions: the admitted conduct must constitute the essential elements of a crime, the party making the

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admission must have been provided with a definition and essential elements of the crime, and the admission must be voluntary. Id. In the context of the immigration courts, where there are detailed procedural safeguards, such requirements are understandable. However, the majority has not presented any authority for the proposition that such requirements apply to the conduct of consular officers interviewing visa applicants.6 Consular interviews are very different from deportation proceedings, a fact highlighted by the doctrine of consular nonreviewability. The consulate’s discretionary decision whether to grant a visa is unlike an Immigration Judge’s decision, based on detailed laws and regulations, whether an alien is to be deported. As was the case with its requirement of “details” to validate the admission, the majority fails to state what provision of law requires the government to prove that an admission of facts establishing inadmissibility before a consular official is “valid”—much less what constitutes the elements of when an admission is “valid.” Certainly, Pazcoguin is of no help to such an argument. Besides taking place in a totally different context, Pazcoguin’s admission was valid enough to exclude him from admission even after he had been granted a visa. See infra note 5. If general standards by which an admission can be questioned as “valid” are invoked—such as force, coercion or hoodwinking—I can see nothing in the record to suggest that Rivas was so dealt with by the Juarez consular officials. Certainly, the majority do not cite any such record evidence, nor did Rivas even claim that to be the fact in his district court papers or his brief on appeal. Indeed, Rivas did not say one word about his admission of alien smuggling detailed in Burciaga’s declaration. Not in the district court; not in his briefs on appeal. Even Rivas does not claim his admission to alien smuggling is not “valid.” It is thus quite difficult to understand the majority’s dismissal of Rivas’ admission on the ground it was not proved “valid,” whatever that might mean. The majority criticizes the Burciaga Declaration as a “hearsay statement [that] is insufficient to prove that Rivas in fact admitted to the alleged violation.” Majority Op. at 853 fn. 6. First, the majority’s characterization of the Burciaga Declaration as “hearsay” is plainly and demonstrably wrong. Rivas’ admission is not hearsay. Under Fed.R.Evid. 801(d)(2)(A), a statement “offered against an opposing party” that “was made by the party” is not hearsay. Rivas’ admission, offered against him here, is an “admission by a party-opponent,” and is thus not hearsay under the Federal Rules of Evidence.

The majority would have a better argument if it characterized Burciaga’s statement *857 as lacking foundation or personal knowledge. Under Fed.R.Evid. 602, “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Indeed, the Burciaga Declaration mentions “[t]he consular officer” who interviewed Rivas. Since it appears ambiguous whether Burciaga, who is the Chief of Immigrant Visas at the Ciudad Juarez Consulate, was that “consular officer” who himself interviewed Rivas, Burciaga may have lacked personal knowledge of Rivas’ admission. However, Rivas never objected to the admission of the Burciaga Declaration on grounds of lack of personal knowledge, nor indeed on any other grounds. Thus, it became permissible evidence on the Motion to Dismiss for lack of subject matter jurisdiction. See, e.g., Pfingston v. Ronan Engineering Co., 284 F.3d 999, 1003 (9th Cir.2002) (“In order to preserve a hearsay objection, a party must either move to strike the affidavit or otherwise lodge an objection with the district court.”). Further, had Rivas objected to the Burciaga Declaration below, Defendants could perhaps have cured any deficiencies by submitting an affidavit from the consular officer who actually interviewed Rivas, if he was someone other than Burciaga. Rivas’ failure so to object deprived Defendants of that opportunity. Next, the majority’s characterization of the Burciaga Declaration as “insufficient” to prove Rivas’ admission is puzzling. Majority Op. at 852–53. The majority devotes one sentence to dismissing the Burciaga Declaration, so it is difficult to divine what it means by “insufficient.” Does the majority mean that one witness to Rivas’ admission is insufficient proof? Surely that is incorrect. It is axiomatic that the testimony of one credible witness is sufficient to prove the truth of any fact testified to. See, e.g., 3 Fed. Jury Prac. & Instr. § 10454 (“The weight of the evidence is not necessarily determined by the number of witnesses ... You may find the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.”); Fifth Circuit Pattern Jury Instructions (Civil Cases), Instruction No. 3.1 (2009) (“The testimony of a single witness may be sufficient to prove any fact, even if a greater number of witnesses may have testified to the contrary, if after considering all the other evidence you believe that single witness.”).7 Last, the majority notes that where the “jurisdictional questions in this appeal overlap completely with the

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merits of the question remaining in this case ..., dismissal for lack of subject matter jurisdiction was not appropriate.” Majority Op. at 853. It is true that the merits of this case overlap with the jurisdictional question: both issues hinge on whether the consulate had a nondiscretionary duty to act based on additional materials submitted by Rivas. But the case the majority cites for its conclusion that dismissal is not warranted actually supports quite the opposite conclusion. In Roberts v. Corrothers, we said:

A court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual issues going to the merits. In such a case, the district court assumes *858 the truth of allegations in a complaint or habeas petition, unless controverted by undisputed facts in the record.

812 F.2d 1173, 1177 (9th Cir.1987) (citations and quotation marks omitted) (emphasis added). Whether Rivas admitted to alien smuggling is not a genuinely disputed fact, but rather an admitted-by-petitioner undisputed fact in this record. * * * For the above reasons, I would affirm the district court’s order dismissing Rivas’ claims for lack of subject matter jurisdiction.

Parallel Citations

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Footnotes * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P.

34(a)(2).

1 Although Rivas styled his letter to the Consular General as a “Motion to Reopen,” the letter is not a “Motion” but instead constitutes a request for reconsideration of his visa application.

2 Unlike the Form I–601, Rivas’s letter requesting reconsideration of his immigrant visa application was never acted upon because the government claims not to have received it. Rivas, however, claims that he submitted the letter and offers a United States Postal Service Label/Receipt Number and a “signed-for” signature as proof that it was received. The district court’s order assumes, without deciding, that the U.S. Consulate accepted Rivas’s letter. We leave it to the district court to make this factual determination.

3 Nor does the government provide any proof that Rivas admitted to attempting to smuggle someone other than his spouse, parent, son, or daughter, thereby making him ineligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(11).

4 The BIA has adopted a three part test for the acceptance of an admission in the immigration context: (1) the admitted conduct must constitute the essential elements of the crime; (2) the applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and (3) the admission must be voluntary. See Pazcoguin, 292 F.3d at 1215–16. We express no opinion on whether the BIA standard applies to the consular interview context.

5 Defendants’ argument that 22 C.F.R. § 42.81(e) does not compel reconsideration of applications where an applicant was deemed to have an “unwaivable ineligibility” is unconvincing. Persons convicted of murder have a non-waivable ineligibility for a visa, but if an applicant found ineligible on the basis of a murder conviction could later submit evidence that the conviction had been vacated, such evidence would tend to overcome the ground of ineligibility. In any event, Rivas would be eligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(11) if he attempted to smuggle his spouse, parent, son, or daughter. If Rivas had produced evidence that any smuggling he had admitted to was of a spouse, parent, son, or daughter, such a submission would clearly fall within the boundaries of 22 C.F.R. § 42.81(e).

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6 The only evidence offered by Defendants on this point is the Declaration of Santiago M. Burciaga, which states that “the consular officer determined that Mr. Rivas Lopez is inadmissible as a matter of law, having admitted to a violation of 8 U.S.C. § 1182(a)(6)(E).” This hearsay statement is insufficient to prove that Rivas in fact admitted to the alleged violation. * * *

1 In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may consider “affidavits or any other evidence properly before the court.” Sommatino v. United States, 255 F.3d 704, 710 n. 3 (9th Cir.2001).

2 8 U.S.C. § 1182(a)(6)(E) provides: “Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.”

3 Regarding Rivas’ admission, the consular official also determined that “no waiver provision exists” under 8 U.S.C. § 1182(d)(11). Such discretionary waivers are available “if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.” Id.

4 The majority also criticizes the government for failing to “provide any proof that Rivas admitted to attempting to smuggle someone other than his spouse, parent, son, or daughter, thereby making him ineligible for a humanitarian waiver under 8 U.S.C. § 1182(d)(11).” Majority Op. at 852 fn. 3. Wrong. The Burciaga Declaration explicitly states that “no waiver provision exists per INA § 212(d)(11) (8 U.S.C. § 1182(d)(11)).”

5 Pazcoguin asked whether petitioner “admit[ted] committing acts which constitute the essential elements ... of a violation of ... any law or regulation of ... a foreign country relating to a controlled substance....” 292 F.3d at 1213 (edits in original). The petitioner was granted an immigrant visa as the unmarried son of a lawful permanent resident, but upon entry to the United States, an IJ found him excludable based on statements admitting marijuana use while in the Philippines. Id. at 1212. The BIA dismissed petitioner’s appeal, and the Ninth Circuit denied the petition for review, holding Pazcoguin’s admission valid. Id. at 1219.

6 The majority states: “We express no opinion on whether the BIA standard applies to the consular interview context.” Majority Op. at 852 fn. 4. If that is so, why cite Pazcoguin?

7 I can think of only one crime for which the testimony of more than one witness is required, and that is because of the explicit mandate of the United States Constitution. “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const. art. III, § 3, cl. 1. Treason is not at issue here.

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531 F.3d 1059 United States Court of Appeals,

Ninth Circuit.

Alma Lupe BUSTAMANTE; Jose Jesus Bustamante, Plaintiffs-Appellants,

v. Michael MUKASEY, Attorney General; Michael Chertoff, Secretary, Department of Homeland

Security; United States Citizenship and Immigration Services; Al Gallman, Acting District

Director, Phoenix; Drug Enforcement Agency; Karen Tandy, Administrator; Condoleezza Rice,

Secretary of State; Maurice Parker, Consul General of the United States, City of Ciudad

Juarez, Mexico; Eric Cruz, United States Consular Official, in his official and individual capacities,

Defendants-Appellees.

No. 06-17228. | Argued and Submitted May 13, 2008. | Filed July 9, 2008.

Synopsis Background: Alien from Mexico and his American citizen wife sued consular official and other government officials, claiming violation of procedural due process rights by allegedly conditioning grant of alien’s visa on his agreement to become informant. The United States District Court for the District of Arizona, Roslyn O. Silver, J., dismissed on grounds that decisions of consular officers to grant or deny visas were not reviewable. Alien and wife appealed. Holdings: The Court of Appeals, Silverman, Circuit Judge, held that: [1] consulate official’s visa denial was reviewable due to citizen’s liberty interest in marriage giving rise to procedural due process right, but [2] officer had facially valid and bona fide reason for denying visa. Affirmed. Attorneys and Law Firms *1060 Marc Van Der Hout and Beth Feinberg, Van Der Hout, Brigagliano & Nightingale, San Francisco, CA, for the plaintiffs-appellants.

Daniel G. Knauss, Cynthia M. Parsons, and John Boyle, United States Attorney’s Office for the District of

Arizona, Phoenix, AZ, Christopher W. Hollis, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CIV-06-00052-PHX-ROS.

Before: BARRY G. SILVERMAN and MARSHA S. BERZON, Circuit Judges, and ROGER T. BENITEZ,* District Judge.

Opinion

SILVERMAN, Circuit Judge:

We hold today, as we did twenty-two years ago in Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986), that ordinarily, a consular official’s decision to deny a visa to a foreigner is not subject to judicial review. However, when a U.S. citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason. In this case, the consular official offered a facially valid reason for denying the visa: he had reason to believe that the visa applicant was a drug trafficker. Furthermore, it was not alleged that the consular official did not have a good faith belief in the truth of the information on which he relied.

I. FACTS Alma Bustamante is a citizen of the United States and resides in Yuma, Arizona. Her husband, Jose Bustamante, is a citizen of Mexico and resides in San Luis Rio Colorado, Sonora, Mexico. Jose has a business in Mexico and for many years commuted between Mexico and the United States using a border-crossing card issued by the former Immigration and Naturalization Service. Seeking to obtain lawful permanent resident status for her husband, Alma filed an immediate relative petition on Jose’s behalf. Jose applied for an immigrant visa at the United States Consulate in Ciudad Juarez, Mexico. The Bustamantes were informed by Eric Cruz, a consular official, that the Consulate had reason to believe that Jose was trafficking in illegal drugs. By virtue of 8 U.S.C. § 1182(a)(2)(C), “[a]ny alien who the consular officer or the Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance ... is inadmissible.” Cruz refused to reveal the information upon which this determination was based, asserting that

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the information was secret. *1061 At a subsequent meeting in Mexico with officials of the U.S. Drug Enforcement Administration, Jose was asked to become an informant. The Bustamantes were told that if Jose agreed to cooperate, his problems obtaining a visa “would go away.” The Bustamantes were also told that if Jose declined to cooperate, he would never obtain a visa and would never become a lawful permanent resident of the United States. Jose refused to become an informant, and his visa application was denied on March 25, 2003. Consular officials also revoked Jose’s border crossing privileges. In a letter dated September 9, 2003, Cruz replied to an inquiry sent by a lawyer representing the Bustamantes. In explaining the Consulate’s decision, Cruz referred to a letter, dated March 5, 2003 and written by the “Resident Agent-in-Charge of our local Drug Enforcement Administration Office,” that contained “derogatory information” to support the finding that there was reason to believe that Jose was a controlled substance trafficker. On January 6, 2006, the Bustamantes filed an action in district court against Cruz and a number of other U.S. government officials, alleging that Jose has not trafficked in illegal drugs and that the consular officials improperly conditioned the granting of a visa on Jose’s agreement to become an informant. The Bustamantes asserted in the complaint that they suffered a procedural due process violation as a result of the allegedly improper condition. The defendants moved to dismiss and for summary judgment, asserting lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. Noting that the defendants had provided a facially valid reason for the visa denial, the district court, relying on Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir.1986), dismissed the complaint on the grounds that the decisions of consular officers to grant or deny visas are not subject to judicial review; all other motions were denied as moot. The Bustamantes timely appealed, asserting that the district court failed to recognize an exception to the doctrine of consular nonreviewability applicable where a U.S. citizen raises a constitutional challenge to the consular decision.

II. ANALYSIS [1] “[I]t has been consistently held that the consular official’s decision to issue or withhold a visa is not subject either to administrative or judicial review.” Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, courts have identified a limited exception to the doctrine where the denial of a visa implicates the constitutional rights of American citizens. See, e.g., Adams v. Baker, 909 F.2d 643, 647-48 (1st

Cir.1990); Burrafato v. United States Dep’t. of State, 523 F.2d 554, 556-57 (2d Cir.1975); Saavedra Bruno v. Albright, 197 F.3d 1153, 1163 (D.C.Cir.1999). The exception is rooted in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), a suit brought by American citizens challenging on First Amendment grounds the exclusion of a Belgian national who was an advocate of “world communism.” The Supreme Court specifically noted that an unadmitted and nonresident alien himself had no right of entry, and that the case came down to the “narrow issue” whether the First Amendment right to “receive information and ideas” conferred upon the American citizens the ability to compel Mandel’s admission. Mandel, 408 U.S. at 762, 92 S.Ct. 2576. The Court acknowledged that First Amendment rights were implicated, but emphasized the longstanding principle that Congress has plenary power to make policies and rules for the exclusion of aliens. Id. at 765-66, 92 S.Ct. 2576. Noting that Congress had delegated *1062 to the executive conditional exercise of this power with regards to certain classes of excludable aliens, the Court held that “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Id. at 770, 92 S.Ct. 2576. [2] [3] [4] [5] Joining the First, Second, and D.C. Circuits, we hold that under Mandel, a U.S. citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. 408 U.S. at 770, 92 S.Ct. 2576.1 Here, Alma Bustamante asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband’s visa application. The Supreme Court has deemed “straightforward” the notion that “[t]he Due Process Clause provides that certain substantive rights-life, liberty, and property-cannot be deprived except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); see also Israel v. INS, 785 F.2d 738, 742 n. 8 (9th Cir.1986). Presented with a procedural due process claim by a U.S. citizen, we therefore consider the Consulate’s explanation for the denial of Jose’s visa application pursuant to the limited inquiry authorized by Mandel. Concluding that, on the record presented to us, the reason was both facially legitimate and bona fide, we affirm the judgment of the district court.

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As set forth in the complaint, Jose was denied a visa on the grounds that the Consulate “had reason to believe” that he was a controlled substance trafficker. This is plainly a facially legitimate reason, as it is a statutory basis for inadmissibility. 8 U.S.C. § 1182(a)(2)(C). The Bustamantes concede this, but note that the district court did not also address whether the reason given for the visa denial was bona fide as well as facially legitimate. They urge that in order to complete the analysis we must remand to the district court for factual development, during which the defendants will be required to present specific evidence to substantiate the assertion that Jose was a drug trafficker. We decline to do so, because the complaint fails to make an allegation of bad faith sufficient to withstand dismissal. While the Bustamantes alleged in their complaint that Jose is not and never has been a drug trafficker, they failed to allege that the consular official did not in good faith believe the information he had. It is *1063 not enough to allege that the consular official’s information was incorrect. Furthermore, the Bustamantes’ allegation that Jose was asked to become an informant in exchange for immigration benefits fails to allege bad faith; if anything, it reflects the official’s sincere belief that Jose had access to information that would be valuable in the government’s effort to combat drug trafficking. Moreover, the Bustamantes do not allege that Jose was asked to do anything illegal or improper. Under Mandel’s limited inquiry, the allegation that the Consulate was mistaken about Jose’s involvement with drug trafficking, and offered to make a deal with Jose on the basis of this

mistaken belief, fails to state a claim upon which relief could be granted. Nor does it appear that the defect can be cured by amending the complaint. The Bustamantes themselves provided the district court with a letter from the consular official identifying the head of the local DEA office as the source of his information that Jose was involved in drug trafficking. We express no opinion on the accuracy of this information; what is significant is that the consular official relied on a fellow government official assigned to investigate illicit drug trafficking. The evidence that Jose was involved in drug trafficking came from the agent in charge of the DEA office. The Bustamantes do not allege that the transfer of information between the DEA and the Consulate never took place, or that the Consulate acted upon information it knew to be false. On the record before us, there is no reason to believe that the consular officer acted on this information in anything other than good faith. The allegations in the complaint, taken as true, as well as evidence presented by the Bustamantes themselves, illustrate that the reason given by the consular official in support of the visa denial was both facially legitimate and bona fide. The district court’s judgment is therefore AFFIRMED. Parallel Citations 08 Cal. Daily Op. Serv. 8633, 2008 Daily Journal D.A.R. 10,420

Footnotes * The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by

designation.

1 We are unable to distinguish Mandel on the grounds that the exclusionary decision challenged in that case was not a consular visa denial, but rather the Attorney General’s refusal to waive Mandel’s inadmissibility. The holding is plainly stated in terms of the power delegated by Congress to “the Executive.” The Supreme Court said nothing to suggest that the reasoning or outcome would vary according to which executive officer is exercising the Congressionally-delegated power to exclude. Moreover, holding that Mandel applies only to cases concerning the Attorney General’s refusal to grant a waiver is inconsistent with those cases in which we have been asked to review a consular official’s denial of a visa, and have cited Mandel in declining to do so. See, e.g., Li Hing of Hong Kong, Inc., 800 F.2d at 971, Ventura-Escamilla v. INS, 647 F.2d 28, 30 (9th Cir.1981).

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

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Yale Law School

Immigration Litigation Roundtable

November 30 – December 1, 2012

Brainstorming II:

Update on Videohearings

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Vilchez v. Holder, 682 F.3d 1195 (2012) 12 Cal. Daily Op. Serv. 6733, 2012 Daily Journal D.A.R. 8232

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682 F.3d 1195 United States Court of Appeals,

Ninth Circuit.

Manuel VILCHEZ, Petitioner, v.

Eric H. HOLDER Jr., Attorney General, Respondent.

No. 09–71070. | Argued and Submitted Feb. 17, 2012. | Filed June 19, 2012.

Synopsis Background: Alien, a citizen of Peru and a lawful permanent resident of the United States, petitioned for review of the affirmance, by the Board of Immigration Appeals (BIA), of the denial of his application for cancellation of removal.

Holdings: The Court of Appeals, W. Fletcher, Circuit Judge, held that: [1] conducting hearing on alien’s request for cancellation of removal by video-conference did not deprive him of due process, and [2] Court lacked jurisdiction to review decision to deny alien’s request for cancellation of removal.

Petition denied.

Attorneys and Law Firms

*1197 Brenda Carolina Diaz, Phung Miyamoto & Diaz, LLP, Los Angeles, CA, for the petitioner.

William Clark Minick, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A043–665–970. Before: JEROME FARRIS and WILLIAM A. FLETCHER, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.*

Opinion

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Manuel Vilchez, a lawful permanent resident, pled guilty in 2007 to felony domestic battery. He was charged with removability based on this conviction. He conceded removability and applied for cancellation of removal. The Immigration Judge (“IJ”) conducted Vilchez’s hearing by video conference. The IJ denied Vilchez’s application, and the Board of Immigration Appeals (“BIA”) affirmed. Vilchez petitions for review, arguing inter alia that the video-conference hearing violated his right to due process. We conclude, in the circumstances of this case, that there was no due process violation. We deny the petition for review.

I. Background

Vilchez is a native and citizen of Peru. He first came to the United States in 1990 when he was twelve. He became a lawful permanent resident in 1995. Vilchez has a United States citizen son, Tristan, born in 2001, whom he helps support financially. Vilchez’s mother, stepfather, three brothers, and sister live in the United States. They are all either citizens or lawful permanent residents. The only member of Vilchez’s extended family who does not live in the United States appears to be his maternal grandmother, who lives in Peru. In 2003, Vilchez pled guilty to possession of controlled substance paraphernalia. Cal. Health & Safety Code § 11364. Entry of judgment was deferred pending completion of a drug program. After Vilchez completed the program, the conviction was dismissed. In 2005, Vilchez was charged with felony domestic battery resulting in bodily injury. Cal.Penal Code § 273.5(a). The District Attorney subsequently obtained a restraining order against Vilchez. While the domestic battery charge was pending, Vilchez pled guilty to possession of drug paraphernalia and being under the influence of a controlled substance. Cal. Health & Safety Code §§ 11364, 11550(a). He received three years probation and was placed in a drug treatment program.

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In 2006, Vilchez was arrested for violating the restraining order. The District Attorney re-filed the felony domestic battery charge against Vilchez and charged him with violating the order. Cal.Penal Code §§ 166(c)(1), 237.5(a). Vilchez pled guilty to both charges. He was sentenced to ten days in jail and three years of probation, and he was ordered to complete a batterer’s treatment program. Vilchez twice violated the terms of his probation *1198 by testing positive for amphetamines, resulting in additional incarceration. In 2008, the Department of Homeland Security served Vilchez with a Notice to Appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence. At his initial hearing, he conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(a). On December 18, 2008, while Vilchez was performing dishwashing duties at an immigration detention center, industrial strength soap splashed in his left eye, burning his cornea. On January 6, 2009, less than three weeks later, an IJ held a hearing on Vilchez’s application for cancellation of removal. The IJ conducted the hearing by video conference. The IJ was in Tucson, Arizona. Vilchez, the witnesses, and the lawyers were all in Lancaster, California. At the hearing, Vilchez testified about his family situation and his eye injury. He recounted his criminal history and testified that his time in the immigration detention center had changed him for the better. Vilchez’s mother, brother, and stepfather testified on his behalf. A letter from the mother of his son, attesting to the hardship that Vilchez’s removal would cause their child, was admitted into evidence. Vilchez’s former girlfriend, the victim of his domestic violence conviction, did not appear. According to Vilchez’s attorney, she was unable to attend because she was “on house arrest.” The reason for her house arrest was not explained. The IJ denied Vilchez’s application for cancellation of removal. The IJ found Vilchez statutorily eligible for cancellation, but denied his application as a matter of discretion. The IJ noted Vilchez’s strong ties to the United States, the hardship removal would impose on him and his eligible family members, and his admirable record of employment and paying taxes. The IJ also noted several countervailing factors, including Vilchez’s substantial criminal record, his multiple drug convictions and probation violations, his disrespect for the law, his failure to modify his behavior, and his domestic violence conviction. Finally, the IJ noted that Vilchez had

disregarded his family responsibilities by abusing drugs, and that he had not shown that he was rehabilitated. The IJ concluded that the negative factors outweighed the positive factors. The BIA affirmed the IJ’s decision. The BIA found no due process violation in the IJ’s decision to hold Vilchez’s hearing by video conference. It noted that the Immigration and Nationality Act (“INA”) expressly allows hearings by video conference, even without the alien’s consent, 8 U.S.C. § 1229a(b)(2), and that Vilchez neither requested an in-person hearing nor explained how the video-conference hearing prejudiced him. Vilchez timely petitioned for review.

II. Jurisdiction and Standard of Review

[1] We have jurisdiction to review constitutional claims, including due process claims, raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D). Because due process requires the IJ to consider the relevant evidence, see Larita–Martinez v. I.N.S., 220 F.3d 1092, 1095 (9th Cir.2000), we also have jurisdiction to review whether the IJ considered this evidence in deciding whether to grant cancellation of removal. However, we lack jurisdiction to review the merits of a discretionary decision to deny cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); Bermudez v. Holder, 586 F.3d 1167, 1169 (9th Cir.2009) (per curiam). [2] [3] We review legal and constitutional questions, including alleged due process violations, de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). *1199 We review factual findings for substantial evidence. Id. at 590 F.3d at 747. [4] [5] Where the BIA conducts de novo review of the IJ’s decision, we limit our review to the BIA’s decision, except to the extent that the BIA expressly adopted the IJ’s decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006). Where the BIA adopted part of the IJ’s decision as its own, we treat the incorporated parts as the BIA’s. Aguilar–Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010).

III. Discussion

Vilchez argues that the BIA erred by (1) finding no due

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process violation in the video-conference hearing and (2) affirming the IJ’s denial of his application for cancellation of removal.

A. Video–Conference Hearing

The INA expressly authorizes hearings by video conference, even without an alien’s consent. 8 U.S.C. § 1229a(b)(2)(A)(iii); see also 8 C.F.R. § 1003.25(c) (“An Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person.”). By contrast, an alien’s consent is required for hearings conducted by telephone. 8 U.S.C. § 1229a(b)(2)(B) (“An evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved after the alien has been advised of the right to proceed in person or through video conference.”). Vilchez does not dispute that the IJ had statutory authority to conduct his hearing via video conference. However, he argues that the video conference violated his constitutional right to due process. [6] [7] Immigration proceedings must provide the procedural due process protections guaranteed by the Fifth Amendment. Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.2009). “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.” Id. (citation and internal quotation marks omitted). Our sister circuits have rejected due process challenges to video conferences. See, e.g., Aslam v. Mukasey, 537 F.3d 110, 115 (2d Cir.2008) (per curiam); Garza–Moreno v. Gonzales, 489 F.3d 239, 241–42 (6th Cir.2007). We agree that a hearing by video conference does not necessarily deny due process. We recognize, however, that in a particular case video conferencing may violate due process or the right to a fair hearing guaranteed by 8 U.S.C. § 1229a(b)(4)(B). For example, in Rapheal v. Mukasey, 533 F.3d 521 (7th Cir.2008), the petitioner had been unable to review key documents during a video-conference hearing. The Seventh Circuit held that in this circumstance the video-conference hearing had violated the petitioner’s right to a fair hearing guaranteed by § 1229a(b)(4)(B). Id. at 532–33 (“ ‘[T]here is no need to invoke the Constitution when the immigration statute itself

guarantees a fair hearing.’ ” (internal citation omitted)). Further, as noted by the Fourth Circuit in Rusu v. I.N.S., 296 F.3d 316, 322 (4th Cir.2002), video conferencing “may render it difficult for a factfinder in adjudicative proceedings to make credibility determinations and to gauge demeanor,” and may thereby violate due process. [8] [9] Whether a particular video-conference hearing violates due process must be determined on a case-by-case basis, depending on the degree of interference with the full and fair presentation of petitioner’s case caused by the video conference, and on the degree of prejudice suffered by the *1200 petitioner. In the case before us, we hold that the video-conference hearing did not violate due process. Vilchez contends that his credibility was “erroneously compromised” when he testified by video, rather than in person, because he “appeared nervous” and was “uncomfortable with the video conferencing process.” However, the IJ never made an adverse credibility determination. The IJ expressed some skepticism about Vilchez’s testimony but that skepticism was based on inconsistencies between the content of Vilchez’s testimony and the record evidence. These inconsistencies would have existed even if Vilchez had testified in person. Vilchez further contends that he was “unable to adequately demonstrate his eye injury to the Court” because the video camera was “never fully focused on him.” But Vilchez does not explain how providing the IJ with an in-person hearing would have affected the IJ’s decision. The IJ carefully considered, and gave full credit to, Vilchez’s claim of hardship arising from his still-fresh eye injury. The IJ stated in his decision:

The Court does recognize though that the respondent recently has suffered an injury and it appears to be an injury of some serious nature. The respondent’s vision in his left [eye] is 20/200, pinholing 220/100, which is improved from last week’s figure. However, there is a large central corneal scar and there is a possibility that respondent will need a corneal transplant. Thus, there is substantial indication that respondent would suffer substantial hardship were he to go to Peru where he may not be able to obtain the exact medical care that is necessary to replace that cornea if it is indeed damaged so severely that it must be replaced.

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Vilchez also complains about technical problems with the video equipment that made some testimony difficult to hear. It does appear that the IJ and the participants in the hearing had some difficulty hearing each other at the beginning of the proceeding, but the record indicates that they spoke up when that was the case and worked cooperatively and successfully to address the problem. Vilchez was represented by counsel, testified at length, and had three witnesses speak on his behalf. See Vargas–Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir.2007) (“Where an alien is given a full and fair opportunity to be represented by counsel, to prepare an application for ... relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.”); Almaghzar v. Gonzales, 457 F.3d 915, 921 (9th Cir.2006) (alien not deprived of due process when allowed to present evidence and testify at length). He has failed to establish that the outcome of his hearing “may have been affected” by the fact that his hearing was conducted by video conference. Lacsina Pangilinan, 568 F.3d at 709 (internal quotation marks omitted). We therefore hold there was no due process violation.

B. Denial of Cancellation of Removal

[10] Vilchez separately challenges the BIA’s denial of his application for cancellation of removal. Vilchez does not contend that the BIA applied an incorrect legal standard. Cf. Mendez–Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir.2009). But he does contend that the agency “failed to consider” certain factors, such as the hardship that his removal would cause his son and mother. We disagree.

The BIA mentioned Vilchez’s United States citizen son and “the hardships likely to result to ... his family.” We agree with the BIA that the IJ’s lengthy decision indicates that he “thoroughly reviewed” and “gave due consideration” to all of the positive and negative *1201 equities in the record. An IJ “does not have to write an exegesis on every contention.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.2010) (internal quotation marks omitted). [11] On the merits, the IJ determined, in the exercise of his discretion, that Vilchez did not merit cancellation of removal. The BIA affirmed. We do not have jurisdiction to review this decision.

Conclusion

We hold that the video-conference hearing in this case did not violate due process. We further hold that the agency considered the factors relevant to Vilchez’s application for cancellation of removal. We lack jurisdiction to review the BIA’s discretionary decision to deny his application. Petition for Review DENIED in part and DISMISSED in part.

Parallel Citations

12 Cal. Daily Op. Serv. 6733, 2012 Daily Journal D.A.R. 8232

Footnotes * The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, sitting

by designation.

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