Manuel Vilchez v. Eric Holder, Jr.
2012 U.S. App. LEXIS 12362
| 9th Cir. | 2012Background
- Vilchez, a Peruvian native and current lawful permanent resident, pled guilty in 2007 to felony domestic battery and faced removability.
- He applied for cancellation of removal despite conceding removability, with an IJ hearing conducted by video conference in Tucson, while Vilchez and witnesses appeared from Lancaster.
- The IJ denied cancellation as a discretionary matter, noting strong U.S. ties and hardship from removal but also substantial negative factors, including a criminal history and domestic-violence conviction.
- The BIA affirmed, holding no due process violation from the video-conference format and agreeing that the IJ properly weighed the equities.
- Vilchez’s family largely resides in the United States, including a U.S. citizen son; the only non-resident relative noted is Vilchez’s Peruvian maternal grandmother.
- Vilchez challenges both the video-conference proceeding as a due-process violation and the BIA’s denial of cancellation; the court rejects both challenges and denies review in part, and dismisses in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Video-conference due process violation | Vilchez contends video hearing prejudiced him and compromised credibility. | INA authorizes video hearings; any prejudice is not shown; he had counsel, witnesses, and full opportunity to be heard. | No due process violation; video hearing permissible under statute. |
| Denial of cancellation of removal on merits and discretion | BIA/ IJ failed to consider hardships to son and mother and other equities. | IJ and BIA thoroughly reviewed positive and negative factors; no exegesis required; discretion affirmed. | Agency properly weighed factors; we lack jurisdiction to review the discretionary denial. |
Key Cases Cited
- Aslam v. Mukasey, 537 F.3d 110 (2d Cir. 2008) (video hearing not per se due process violation)
- Garza-Moreno v. Gonzalez, 489 F.3d 239 (6th Cir. 2007) (video conferencing may raise due process concerns in some cases)
- Raphael v. Mukasey, 533 F.3d 521 (7th Cir. 2008) (document review during video hearing can affect fairness)
- Lacina Pangilinan v. Holder, 568 F.3d 708 (9th Cir. 2009) (due process requires consideration of relevant evidence)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (agency need not write exegesis on every contention)
- Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2006) (framework for reviewing agency decisions where BIA adopts IJ's reasoning)