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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

 TOMAS MIGUEL MACIAS-RAMOS, Petitioner - Appellant, v. THOMAS
                  SCHILTGEN; et al., Respondents - Appellees.

                                  No. 03-55181

              UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


                             2004 U.S. App. LEXIS 1531

          December 4, 2003, Argued and Submitted, Pasadena, California

                            January 30, 2004, Filed

NOTICE:  [*1]  RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT
CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED
STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeal from the United States District Court for the Central
District of California. D.C. No. CV-02-05345-GAF. Gary A. Feess, District
Judge, Presiding.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: For THOMAS MIGUEL MACIAS-RAMOS, Petitioner - Appellant: Marc A.
Karlin, Esq., Louis A. Gordon, Los Angeles, CA.

For THOMAS SCHILTGEN, IMMIGRATION AND NATURALIZATION SERVICE, Respondent -
Appellee: Vince Farhat, Esq., USLA - OFFICE OF THE U.S. ATTORNEY, Los
Angeles, CA.

JUDGES: Before: B. FLETCHER, FARRIS, and WARDLAW, Circuit Judges.

OPINION:

   MEMORANDUM *

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

   * This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by Ninth
Circuit Rule 36-3.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   Tomas Macias-Ramos, a native of Ecuador, appeals the district court's
ruling denying his petition for writ of habeas corpus in which he sought to
prevent the [*2]  use of a 1992 expunged misdemeanor weapon conviction as
grounds to deport him and to deny his request for suspension of deportation
and voluntary departure. The district court had jurisdiction under 28 U.S.C.
§ 2241, and we have jurisdiction under 28 U.S.C. § 2253. The Board of
Immigration Appeals violated due process by failing to timely correct the
Immigration Judge's error of law in using the expunged conviction. We
therefore reverse the district court.

   It is well established that aliens have a right to due process in
deportation proceedings. Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.
1999). "The fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.'" Mathews v.
Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187
(1965)). A BIA decision violates due process if the proceeding was '"so
fundamentally unfair that the alien was prevented from reasonably presenting
his case.'" Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (quoting [*3]
Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)).

   In 1993, the IJ clearly erred in ruling that Macias-Ramos's expunged
conviction was grounds to deport him and to deny his requested relief. See
In re Luviano-Rodriguez, 21 I. & N. Dec. 235, 237 (BIA 1996) ("For many
years this Board has recognized that a criminal conviction that has been
expunged pursuant to section 1203.4 of the California Penal Code may not
support an order of
deportation.") (citing Matter of Ibarra-Obando, 12 I. & N. Dec. 576 (BIA
1966) and Matter of G-, 9 I. & N. Dec. 159 (BIA 1960)). As the sole
appellate tribunal within the agency, the BIA had a duty to correct this
error in order to provide Macias-Ramos meaningful relief. Instead, the BIA
sat on his appeal for more than six years, for no apparent reason. n1 This
worked to the government's advantage since, during the delay, Congress
enacted the IIRIRA so that expungement no longer eliminates the immigration
ramifications of a conviction. 8 U.S.C. § 1101(a)(48); Ramirez-Castro v.
INS, 287 F.3d 1172, 1175-76 (9th Cir. 2002); Murillo-Espinoza v. INS, 261
F.3d 771, 774 (9th Cir. 2001). [*4]  Thus, where Macias-Ramos had a right to
reversal of the IJ's ruling before 1996, he lost that right due to the BIA's
failure to timely act.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

   n1 We are mystified by the length of time it took the BIA to process the
appeal. The facts, law, and requests for relief were relatively simple and
straightforward. Though not applicable here, we note that the delay in this
case far exceeds the recently-imposed 180-day goal for deciding appeals. 8
C.F.R. §
1003.1(e)(8)(i) (2003).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   The change in the applicable law was devastating to Macias-Ramos on
several fronts. The revived conviction was now a basis to deport him. 8
U.S.C. § 1227(a)(2)(C). It required him to prove ten, rather than seven,
years of continuous physical presence in the United States to qualify for
suspension of deportation. 8 U.S.C. § 1254(a)(2) (1993) (repealed 1996). And
he had to show good moral character for ten years to qualify for voluntary
departure. 8 U.S.C. § 1254(e)(1)(1993)  [*5]  (repealed 1996). The prejudice
he suffered is clear and egregious. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (alien claiming due process violation must demonstrate
prejudice). In light of this, the BIA violated Macias-Ramos's right to be
heard "at a meaningful time and in a meaningful manner." Eldridge, 424 U.S.
at 333; see also Coe v. Thurman, 922 F.2d 528, 532 (9th Cir. 1990) (holding
that excessive delay in processing appeal of criminal conviction violated
due process).

   Although the BIA generally must apply the law in place at the time of its
review, Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999), that rule is not
absolute where error effectively denied an alien a meaningful hearing under
the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v.
INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (concluding that
BIA's failure to correct IJ's error was defect requiring application of law
in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33
(7th Cir. 2000) (noting that procedural defect resulting in the loss of an
opportunity [*6]  for statutory relief requires remand for a hearing under
former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000)
(holding that ineffective assistance of counsel before IJ required remand
for application of law existing at the time of the IJ's hearing). The BIA's
failure to timely remedy the IJ's error denied Macias-Ramos the right not to
have his expunged conviction used in his case. The only meaningful remedy
for that defect is to give him a hearing under the law that would have
applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at
1212.

   In light of the due process violation that occurred, the district court
erred in denying the petition for writ of habeas corpus. We reverse and
remand with instructions to grant a writ of habeas corpus directing the BIA
to remand Macias-Ramos's case to an IJ for a new deportation hearing. At
that hearing, pre-IIRIRA law shall apply on the issues of deportability,
suspension of deportation, and voluntary departure. n2 Id.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

   n2 In ruling on suspension of deportation, current facts and
circumstances must be considered. See Ramirez-Alejandre v. Ashcroft, 320
F.3d 858, 862-63 (9th Cir. 2003).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7]

   REVERSED AND REMANDED.







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