Hernandez-Perez

MEMORANDUM *

Jesus Ernesto Hernandez-Perez, a native and citizen of Mexico, timely petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) order of removal. The parties are familiar with the facts of this case, and we do not repeat them here, except as necessary to explain our decision. We have jurisdiction under 8 U.S.C. § 1252 (a)(2)(D) to consider Hernandez’s claims to the extent they raise legal and constitutional issues. We grant the petition and remand to the BIA for proceedings consistent with this disposition.

Hernandez alleges a number of legal errors and due process violations. While many aspects of his hearing might have been conducted differently, we find only one due process violation that requires us to grant his petition. 1 Hernandez contends that the IJ and the BIA, when considering whether his mother would suffer extreme hardship, violated his due process rights by failing to consider psychiatric *593 evidence indicating that his mother would likely attempt suicide were he deported. We agree.

Due process requires that the agency “review all relevant evidence.” See Larita-Martinez v.…

dissenting:

The majority here rules that Hernandez’s right to due process was violated because the IJ and the BIA failed to consider Dr. Wakefield’s affidavit. This conclusion is contrary to our case law, not supported by the record, and constitutes an intrusion “into the domain which Congress has set aside exclusively for the administrative agency.” See SEC v. Chenery Corp., 332 U.S. 194, 196 , 67 S.Ct. 1575 , 91 L.Ed. 1995 (1947).

Under our well-established case law, we presume that the IJ reviewed all the evidence in the record, even if the IJ and BIA do not mention every item. Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.2000) (“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.”); see also Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir.2006) (rejecting due process claim based on the IJ’s failure to discuss documentary evidence of torture); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006) (rejecting claim that petitioner’s due process right was violated by the BIA’s…