Ramon Ramirez-Alejandre v. John Ashcroft, Attorney General of the United States of America

276 F.3d 517 (9th Cir. 2002) RAMON RAMIREZ-ALEJANDRE, PETITIONER, v. JOHN ASHCROFT, * ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENT. No. 00-70724 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted November 7, 2001 ** Filed January 9, 2002 Counsel Jonathan M. Kaufman, San Francisco, California, for the petitioner. Michael T. Dougherty, Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals I&NS No. Axp-qjj-rjt Before: Ferdinand F. Fernandez, Pamela Ann Rymer, and Kim McLane Wardlaw, Circuit Judges. Opinion by Judge Rymer; Dissent by Judge Wardlaw RYMER, Circuit Judge: 1 Ramon Ramirez-Alejandre is a native and citizen of Mexico. He petitions for review of the final order of deportation issued by the Board of Immigration Appeals (BIA) on June 6, 2000. An Immigration Judge (IJ) had previously ruled that Ramirez was entitled to suspension of deportation pursuant to section 244(a) of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1254 (1994), but the INS appealed. The Board sustained the appeal, concluding that…

Opinion by Judge RYMER; Dissent by Judge WARDLAW

Ramon Ramirez-Alejandre is a native and citizen of Mexico. He petitions for review of the final order of deportation issued by the Board of Immigration Appeals (BIA) on June 6, 2000. An Immigration Judge (IJ) had previously ruled that Ramirez was entitled to suspension of deportation pursuant to section 244(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1254 (1994), but the INS appealed. The Board sustained the appeal, concluding that Ramirez would not suffer “extreme hardship” on being deported. As Ramirez acknowledges, we lack jurisdiction to review this discretionary decision under section 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009, 3009-625 *519 (1996). However, because we retain jurisdiction to determine if the BIA violated his due process rights pursuant to 8 U.S.C. § 1252 (b)(4)(D), Ramirez contends that his rights to due process were denied when the BIA refused to consider material which he offered for the first time while his case was pending on appeal. We disagree, and accordingly dismiss the petition.

I

Ramirez…

dissenting:

Regardless of one’s view of the rule set forth in Larita-Martinez v. INS, that decision directly controls the disposition of this case and requires the contrary result: the reinstatement of the IJ’s grant of relief to Ramirez.

The majority asserts that we did not reach the due process question in Larita- *522 Martinez. This cannot be squared with the plain language of Laritar-Martinez itself:

Larita-Martinez, 220 F.3d at 1095(cita-tions and internal quotation marks omitted) (emphasis added). The necessary predicate to the Laritar-Martinez panel’s conclusion that the Board fulfilled its due process obligations is the holding that a due process requirement exists.

Under this rule, it is of no consequence whether the supplemental material was submitted before the IJ or whether it was submitted on appeal to the BIA. In this regard, however, Larita-Martinez and Ramirez-Alejandre are factually indistinguishable. In Laritar-Martinez, the petitioner filed supplemental evidence, not available at the time of his hearing before the IJ, to support his claim of extreme hardship pending before the BIA. Here, .Ramirez filed his supplemental evidence, not available at the time of…