Martinez-Farias

MEMORANDUM *

Petitioner Francisco Martinez-Farias appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen and reconsider his case pursuant to 8 C.F.R. § 1003.2 . The BIA previously had resolved his case by affirming the decision of the Immigration Judge (“IJ”) denying Petitioner’s application for adjustment of status under 8 U.S.C. § 1255 (a).

After learning that Petitioner received Medi-Cal benefits, the IJ terminated the hearing, preventing Petitioner from completing his testimony and preventing Petitioner’s wife, daughter Esmerelda, and son Salvador from testifying at all. In his oral decision, the IJ denied Petitioner’s application for adjustment of status because Es-merelda, his sponsor, had failed to submit an 1-864 Form affidavit of support as required by 8 U.S.C. § 1182 (a)(4)(C) and 8 C.F.R. § 213a.2(a)(1)(i)(A), because Petitioner had failed to submit required medical forms, and because Petitioner was a public charge.

Petitioner argued in his motion to reopen and reconsider that the IJ erred by failing to give him an opportunity to present evidence and to rebut the IJ’s findings. We agree.

Had the IJ granted Petitioner a full hearing,…

dissenting.

I would hold that Petitioner was not denied his right to due process. The majority concludes that “had the IJ granted Petitioner a full hearing, the affidavit problem could have easily been solved” and that, “had the IJ permitted the hearing to continue, Petitioner and his family members may have been able to address the missing medical forms to the IJ’s satisfaction.” However, the final hearing was not the first time that the IJ notified Petitioner of his obligation to provide the I-864 Form affidavit of support and other documents. The IJ told Petitioner about the required affidavit in March 1999, over four years before the final hearing in October 2003. The IJ further warned Petitioner that if he failed to provide the requisite documentation at the next hearing further continuances were unlikely. In addition, Petitioner’s case had previously been continued, at his request, more than ten times over more than five years. As a result, Petitioner had several opportunities to comply with the regulations well before the IJ cut short the October 2003 hearing. Petitioner was certainly not “prevented from reasonably presenting his case,” Ibarra-Flores v. Gonzales, 439 F.3d…