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Failure to Exhaust Remedies Bars Ninth Circuit Review of Claim of Due Process Violation by Immigration Judge
by Carl R. Baldwin

Hard on the heels of a Fifth Circuit decision May 18, 2001, barring an alien’ s ineffective assistance of counsel claim for failure to exhaust administrative remedies (Goonsuwan v. Ashcroft, No. 00-10349), the Ninth Circuit, on June 25, 2001, barred a claim of bias on the part of an immigration judge as a result of the alien’s failure to raise it before the Board of Immigration Appeals.

The case is Raquel Sanchez-Cruz v. Immigration and Naturalization Service, No. 99-70044. The alien is a Mexican national who entered the United States without inspection in 1985 at the age of 19. She is the single mother of two U.S.-born children, ages thirteen and ten. On December 23, 1993 the INS commenced deportation proceedings against her. At her hearing in February, 1994 she conceded deportability and requested suspension of deportation under INA 244(a)(1), as it then was, and in the alternative voluntary departure. The court made this observation about the hearing before the immigration judge: “At the hearing the IJ focussed almost exclusively on the fact that Ms. Sanchez-Cruz had received public assistance…He refused to allow the petitioner to introduce evidence that specifically contradicted some of his factual findings and called her a ‘liar’ at various junctures of the evidentiary proceeding…He also evidenced a bias towards single mothers, uttering such phrases as ‘(t)he opportunity she seeks, apparently, is only to be on public welfare and public assistance, and to mother children out of wedlock.’”

The court then discussed its authority to decide the appeal from the BIA’s affirmance of the immigration judge’s denial of the application for suspension, and dismissal of the appeal. Under the “transitional rules” of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which apply to this case, the court lacked jurisdiction to review the determination of whether the alien met the “extreme hardship” standard, and the BIA’s alternative holding that it would deny the relief as a matter of pure discretion (citations omitted). In spite of these limitations, said the court, “we retain review of due process challenges to the BIA’s denial of suspension of deportation.” The court found that the allegation of bias by the immigration judge did present a colorable claim. In this case, said the court, “the IJ repeatedly interrupted the petitioner and ‘behaved not as a neutral fact- finder interested in hearing the petitioner’s evidence, but as a partisan adjudicator seeking to intimidate’ the petitioner.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).

But that expression of opinion was as far as the court could go. The allegation of immigration judge bias was raised for the first time before the court. It had not been raised before the Board of Immigration Appeals. The court therefore lacked jurisdiction to hear the claim.

This case, in my opinion, is an object lesson to immigration judges on how not to conduct an evidentiary hearing. And it is one more object lesson to lawyers and immigrants on the vital importance of exhausting administrative remedies, in order to have a chance of getting into court.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from