United States v. 2006-07-18 | 04-75173 | FRANCO-ROSENDO VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LUIS FRANCO-ROSENDO; EULALIA
ZACARIAS DE FRANCO, No. 04-75173
Petitioners, Agency Nos.
v. A79-588-556  A79-588-557ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 7, 2006—Pasadena, California
Filed July 18, 2006
Before: Stephen Reinhardt, Stephen S. Trott, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt
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COUNSEL
Carlos Vellanoweth, John Wolfgang Gehart, Elena Yampol-
sky & Russell Marco Jauregui, Vellanoweth & Gehart, LLP,
Los Angeles, California, for the petitioner-appellant.
Peter D. Keisler, Terri J. Scadron & Margot L. Nadel, U.S.
Department of Justice, Washington, DC, for the respondent-
appellee.
OPINION
REINHARDT, Circuit Judge:
Luis Franco-Rosendo and Eulalia Zacarias de Franco,
natives and citizens of Mexico, petition for review of the
Board of Immigration Appeals (“BIA”) decision of Septem-
ber 24, 2004, denying their motion to reopen. We grant their
petition and remand to the BIA for further consideration.
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The petitioners entered the United States from Mexico
without inspection on or about April 25, 1990. They are mar-
ried and currently reside in Reedley, California with their four
United States citizen children. On December 3, 2001, the peti-
tioners were issued a Notice to Appear. In the subsequent
hearing, the couple conceded removability but requested can-
cellation of removal. The Immigration Judge (“IJ”) denied
their request. The IJ’s decision was affirmed by the BIA on
the ground that the couple failed to demonstrate that their
United States citizen children would suffer “exceptional and
extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). The
BIA instead granted voluntary departure.
By the time voluntary departure was granted, however, the
female petitioner had become seriously ill. The couple failed
to pay their departure bond and thus, they argue, effectively
declined the offer of voluntary departure. The couple then
filed a timely motion to reopen on July 23, 2004, providing
the BIA with information about the female petitioner’s illness
and the likely effect on her four United States citizen children
if their critically ill mother were deported. In its opinion, the
BIA assumed that the couple’s failure to depart did not make
them statutorily ineligible for relief, but denied the motion to
reopen in the exercise of its discretion. Petitioners request
review from this Court.
[1] We review BIA denials of motions to reopen for abuse
of discretion. Medina-Morales v. Ashcroft, 371 F.3d 520, 529
(9th Cir. 2004). The BIA abuses its discretion when it acts
“arbitrarily, irrationally, or contrary to law.” Chete Juarez v.
Ashcroft, 376 F.3d 944, 947 (9th Cir. 2004) (quoting Singh v.
INS, 213 F.3d 1050, 1052 (9th Cir. 2000)). In order for the
court to exercise our limited authority, there must be a rea-
soned explanation by the BIA of the basis for its decision.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
The BIA abuses its discretion when it fails to “consider and
address in its entirety the evidence submitted by a petitioner”
and to “issue a decision that fully explains the reasons for
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denying a motion to reopen.” Mohammed v. Gonzales, 400
F.3d 785, 792-93 (9th Cir. 2005). It is required to weigh “both
favorable and unfavorable factors by evaluating all of them,
assigning weight or importance to each one separately and
then to all of them cumulatively.” Arrozal v. INS, 159 F.3d
429, 433 (9th Cir. 1998) (quoting Campos-Granillo v. INS, 12
F.3d 849, 852 (9th Cir. 1993)). In doing so, the BIA must
“tak[e] into account the social and humane considerations
presented in an applicant’s favor.” Arrozal, 159 F.3d at 432-
33 (emphasis and internal quotation marks omitted).
[2] The decision in this case fails to meet the abovemen-
tioned requirements. The petitioners presented evidence that
the wife had become critically ill and that traveling to Mexico
could threaten her health.1 They urged that, accordingly, they
had become eligible for cancellation of removal and provided
a letter from the wife’s doctor explaining that her illness “may
be, in fact, life threatening,” and that “it is essential that [she]
be allowed to remain in the area and receive the proper evalu-
ation and proper medical care.” The petitioners explained that
the wife is unlikely to get adequate medical treatment in Mex-
ico because the family hails from an isolated, indigenous
community, five hours from the nearest hospital, and she
speaks only limited Spanish.2 They argued that requiring her
to travel, thereby preventing her from receiving proper medi-
cal care, could have a devastating effect on her four United
States citizen children, aged seven, four, two and four months.
1Although the symptoms of the female petitioner’s illness appeared
prior to the April 7, 2004 BIA decision granting voluntary departure, she
was pregnant when the symptoms began. Because her primary symptoms
were uterine and back pain, it is not surprising that she failed to realize
that the pains she was experiencing would outlast her recovery from child-
birth on March 22, 2004. It was not until after the BIA decision granting
voluntary departure that her doctor informed her that “traveling could
threaten [her] health.” The doctor’s note stating that her condition may be
life threatening was not written until July 8, 2004.
2The wife’s native language is Nahuatl, an indigenous language. She
learned Spanish only after coming to the United States and her Spanish
remains limited. The husband is also not a native Spanish speaker.
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[3] Rather than “taking into account the social and humane
considerations” and “assigning weight . . . to each one,” Arro-
zal, 159 F.3d at 432-33, the BIA did not mention petitioner’s
medical problems when it explained its reasons for denying
the motion. It discussed only the fact that petitioners elected
not to pay their $500 voluntary departure bond. The BIA’s
explanation of its decision, in its entirety, consisted of the fol-
lowing paragraph:
In the instant case, we will assume that the respon-
dents’ argument is correct, and they may be able to
eligible [sic] for cancellation of removal. However,
we have considered that the respondents did not
leave the United States after successfully appealing
the Immigration Judge’s denial of their voluntary
departure application. In balancing these factors, we
conclude that the respondents have not convinced us
that these proceedings should be reopened in the
exercise of our discretion. The respondents indicated
at the hearing that they would comply with all the
obligations imposed by law in exchange for the priv-
ilege of leaving this country voluntarily, and not
under an order of removal. In addition, their appeal
brief specifically requested that the Board reverse
the Immigration Judge’s denial of their voluntary
departure request. Instead, they chose to ignore their
obligation, remain in the United States, and now
request that the Board favorably exercise our discre-
tion on their behalf. For discretionary considerations,
we find that it is inappropriate to reopen these pro-
ceedings.
This decision is inadequate. In Arrozal, the BIA at least
stated that it “recognize[d] the respondent’s significant equi-
ties, particularly those related to her United States citizen chil-
dren who are in no way responsible for their parent’s past
conduct.” Arrozal, 159 F.3d at 433. Here, the BIA does not
even “waive [sic] aside” the equities. Id. at 434. It makes no
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mention of the factors favoring petitioners’ motion or the
effect of these factors on their United States citizen children.
Nor does the BIA consider whether the inability to travel
might have affected the couple’s “choice” to “ignore their
obligation” to depart. The BIA’s only allusion to the equities
involved in petitioners’ case is the statement: “[i]n balancing
these [unspecified] factors.” This is a far cry from the detailed
consideration of each factor required by the court in Arrozal.
Additionally, as in Mohammed, the BIA “gave no indication
that it considered . . . the significant documentary evidence”
provided by the affidavit and the doctor’s note submitted with
the motion to reopen. Mohammed, 400 F.3d at 792. Certainly,
the BIA did not “take into account” any “humane consider-
ations.” Arrozal, 159 F.3d at 432-33.
[4] Instead of evaluating the favorable factors and the evi-
dence, the BIA considered exclusively the petitioners’ failure
to depart, even though it assumed that they were eligible for
relief. Where, as here, the petitioners are eligible for relief,
any misconduct does not change the BIA’s responsibility to
weigh all the factors, positive and negative.3 Arrozal, 159
F.3d at 434 (The “BIA cannot just waive [sic] aside [Arro-
zal]’s favorable factors merely because she failed to report for
deportation.”). The BIA’s failure to identify and evaluate the
favorable factors was an abuse of discretion.
The government argues that the petition to reopen goes pri-
marily to the merits of the underlying decision. This assertion
is surprising, given the completely new evidence of the wife’s
potentially life-threatening illness. However, even if this were
“a thinly disguised attempt to relitigate the merits,” the BIA
3At oral argument, the government relied on INS v. Bagamasbad, 429
U.S. 24 (1976). Bagamasbad is not relevant. There, the Court held that if
the BIA could properly deny a motion to reopen in the exercise of its dis-
cretion, there was no need to consider eligibility for the underlying relief.
Id. at 26. Here, the BIA assumed that the petitioners were eligible for
relief, and the only issue is whether the BIA properly made and explained
its discretionary decision.
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would not be excused from explaining its reasoning. Movsi-
sian, 395 F.3d at 1098.
For these reasons, we find that the BIA abused its discre-
tion. Thus, we GRANT the petition and REMAND to the
BIA for further proceedings consistent with this opinion.
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