Silvia Escalante-Tellez v. Jefferson Sessions
678 F. App'x 577
9th Cir.2017Background
- Petitioner Silvia Escalante-Tellez, a Mexican national, sought asylum, withholding of removal, and CAT protection; IJ denied relief and BIA dismissed her appeal.
- Escalante’s brief to the court raised only alleged due process violations; she waived challenges to merits and withholding/CAT claims.
- At hearing, Escalante was allowed to bring and discuss exhibits but did not timely file them; she also did not submit internet research about her ex-husband’s government employment.
- The IJ questioned Escalante in ways the petitioner contends were biased; Escalante claimed those questions and the IJ’s handling of exhibits denied due process.
- Escalante also argues the IJ failed to advise her of potential eligibility for a U Visa, which she contends was prejudicial.
- Ninth Circuit review: constitutional and legal questions reviewed de novo; the panel denied the petition for review.
Issues
| Issue | Escalante's Argument | Government/BIA Argument | Held |
|---|---|---|---|
| Whether IJ’s development of the record violated due process | IJ failed to allow untimely exhibits and did not pursue unfiled exhibit, denying a full and fair hearing | IJ provided opportunity to present evidence, allowed discussion of exhibits brought to hearing, and BIA accepted facts about ex-husband’s employment | No due process violation — record development was adequate |
| Whether IJ acted with bias or prejudgment (neutral factfinder requirement) | IJ’s questions, tone, and comments showed prejudice and impeded presentation of case | Questions were pertinent or flowed from testimony; demeanor not unusual or disqualifying | No due process violation — IJ was a neutral factfinder |
| Whether IJ’s failure to advise about U Visa eligibility was prejudicial | Lack of advisal denied Escalante a potential relief path and affected outcome | Nothing prevented Escalante from applying for a U Visa independently; she did not apply or seek continuance | Not prejudicial — petitioner failed to show outcome was affected |
| Whether Escalante may challenge merits/withholding/CAT on appeal | (Not argued) | Government contends claims not preserved | Waived — petitioner raised only due process issues |
Key Cases Cited
- Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005) (due process requires full and fair hearing and reasonable opportunity to present evidence)
- Khan v. Holder, 584 F.3d 773 (9th Cir. 2009) (standard of review for legal and constitutional issues)
- Jie Cui v. Holder, 712 F.3d 1332 (9th Cir. 2013) (argument not raised in brief is waived)
- Almaghzar v. Gonzales, 457 F.3d 915 (9th Cir. 2006) (impatient IJ demeanor can be permissible)
- Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (examples of IJ bias and morally charged statements)
- Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002) (petitioner must show IJ conduct potentially affected outcome)
- Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) (prejudice standard for due process claims)