Vilchez v. Holder

Whether a particular video-conference hearing "violates due process must be determined on a case-by-case basis, depending on the degree of interference with the full and fair presentation of petitioner's case caused by the video conference and on the degree of prejudice suffered by the petitioner."

Defendant Manuel Vilchez is a citizen of Peru and a lawful permanent resident of the United States. Vilchez pled guilty to being under the influence of a controlled substance, possession of controlled substance and drug paraphernalia, violating a restraining order and felony domestic battery charge. Vilchez was charged with removability as an alien convicted of a domestic violence crime under 8 U.S.C. § 1227(a)(2)(E)(i). Vilchez conceded removability and under 8 U.S.C. §1229b(a) applied for cancellation of removal. The Immigration Judge (“IJ”) denied Vilchez’s application after a video-conference hearing. The IJ’s decision was based on Vilchez’s positive factors of hardship that removal would cause to his eye injury and family was outweighed by the negative factors of his criminal record, failure to modify his behavior, and his domestic violence conviction. The Board of Immigration Appeals (“BIA”) affirmed and noted that the Immigration and Nationality Act (“INA”) expressly allowed hearings by video-conference without the aliens consent. The Ninth Circuit noted that whether a video-conference violates due process “must be determined on a case by case basis.” The Ninth Circuit held that the video-conference hearing did not violate due process. The Court reasoned that Vilchez failed to establish that the outcome “may have been affected” by the video hearing because Vilchez had the opportunity to present his case through counsel and witnesses. Second, Vilchez contended that BIA did not take into account certain factors when BIA denied his application for cancellation of removal. The Ninth Circuit disagreed and held that the BIA and IJ considered all factors relevant to Vilchez’s application for removal. The Ninth Circuit lacked jurisdiction to review BIA’s decision to deny his application. Petition for Review DENIED in part and DISMISSED in part.