Oscar Rojas v. Eric H. Holder Jr.
2012 U.S. App. LEXIS 26560
| 9th Cir. | 2012Background
- Rojas entered the United States without inspection in 1989.
- In 2007, he received a Notice to Appear charging removability and conceded removability under 8 U.S.C. § 1182(a)(6)(A)(i).
- Rojas pursued various forms of relief and eventually applied for voluntary departure.
- At the voluntary departure hearing, Rojas stated he was 31 years old and described his family as having a one-year-old child whose mother was 17 when the child was born.
- The Immigration Judge denied voluntary departure in part based on Rojas’s admission that he, as an adult, had sexual relations with a minor.
- The Board of Immigration Appeals affirmed the IJ’s decision without a written opinion; Rojas petitions for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the IJ consider evidence of a sexual crime not yet convicted? | Rojas argues the evidence is irrelevant and violates due process. | Rojas contends the evidence is probative of bad character for discretionary relief even without conviction. | Yes; the IJ properly considered it for discretionary factors. |
| Does considering admission of sexual conduct violate presumption of innocence in criminal cases? | Rojas asserts due process rights to presumption of innocence were implicated. | IJ’s use of the admission within discretionary relief is not a criminal due process issue. | No; presumption of innocence in criminal cases is not implicated here. |
| What standards govern review of the IJ/Board in voluntary departure cases? | Rojas emphasizes de novo review of legal questions and due process challenges. | Agency has discretion; we defer to the IJ on discretionary determinations, reviewing legal questions de novo. | Legal questions reviewed de novo; discretionary weighing reviewed for abuse of discretion. |
Key Cases Cited
- Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1993) (great latitude in discretionary decisions and weighing factors for voluntary departure)
- Singh v. INS, 213 F.3d 1050 (9th Cir. 2000) (de novo review of purely legal questions)
- Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005) (due process challenges to immigration proceedings)
- Re Arguelles-Campos, 22 I. & N. Dec. 811 (BIA 1999) (evidence of bad character relevant to discretionary calculations)