The Tenth Circuit Court of Appeals issued its opinion in Martinez Molina v. Holder on Tuesday, August 19, 2014.
Alberto Martinez Molina and Cristina Ramirez Rivera, a married couple, are Mexican citizens subject to final orders of removal from the United States. The government began removal proceedings on October 16, 2008, and, in order to cancel the removal, the couple had to show continuous presence in the United States for the past ten years, beginning October 16, 2008. At a 2008 hearing, the couple’s first attorney submitted paystubs showing that Mr. Martinez had worked in the United States since 1998 and vaccination records showing that the couple’s minor child had been vaccinated throughout 1998. Following this hearing, the couple relocated and obtained the services of a second attorney, Mr. Senseney. At the second hearing, Senseney presented evidence of residence from 1999 to 2010, but did not present any evidence regarding 1998. The immigration judge denied relief, relying in part on the missing documentation but also relying on discrepancies in the couple’s testimony. Senseney appealed to the BIA but did not challenge any of the immigration judge’s rulings. The BIA dismissed the appeal.
After the dismissal, the couple hired a third attorney, who petitioned to reopen based on ineffective representation. The couple argued that they had received ineffective representation from Senseney based on his failure to submit evidence of residence during 1998. The BIA denied the motion, ruling that it appeared from the record that the evidence was substantially similar to that relied upon by the IJ. The couple appealed to the Tenth Circuit on two grounds: (1) the immigration judge failed to consider all of the evidence, including the evidence submitted at the 2008 hearing by their first attorney, and (2) ineffective representation.
The Tenth Circuit declined to address the couple’s first argument because it lacked jurisdiction to do so. The couple had not appealed that ruling to the BIA, and without exhaustion of lower court remedies, the Tenth Circuit had no jurisdiction to hear the issue. As to the second argument, the Tenth Circuit affirmed the BIA’s decision as to Ms. Ramirez but reversed as to Mr. Martinez.
The Tenth Circuit found that the BIA abused its discretion in denying Mr. Martinez’s petition to reopen because it ruled that the evidence regarding Mr. Martinez’s presence in 1997 and 1998 that was attached to his petition appeared the same or substantially similar to that considered by the immigration judge. However, the immigration judge did not consider evidence from 1998 because she referenced the absence of evidence proving residence in October 1998. The Tenth Circuit remanded to the BIA for further findings regarding the 1998 evidence.
As to Ms. Ramirez, the Tenth Circuit found no abuse of discretion. The vaccination records from 1998 that she submitted with her petition to reopen were already in the record, leading the BIA and Tenth Circuit to conclude the immigration judge considered this evidence.
The BIA’s denial was affirmed as to Ms. Ramirez and reversed and remanded as to Mr. Martinez.