Rojas v. Holder

In determining whether to grant or deny a request for voluntary departure, the Immigration Judge may consider “evidence of bad character or undesirability” in making that discretionary determination.

An Immigration Judge (IJ) denied Oscar Rojas pre-conclusion voluntary departure. The Board of Immigration Appeals (Board) affirmed without a written opinion, and Rojas sought review of that decision. Specifically, Rojas argued that the IJ erred in considering evidence of a sexual crime for which he had not been convicted, because the evidence was not relevant and consideration of that evidence violated due process. The Ninth Circuit panel disagreed and held that the IJ properly considered the evidence. The panel noted that the IJ, in weighing “both favorable and unfavorable factors” to determine whether to grant a voluntary departure request, may consider, inter alia, “other evidence of bad character or the undesirability of the applicant as a permanent resident.” In that regard, the panel reasoned that the evidence at issue was “probative as to [Rojas’s] bad character and undesirability for permanent residency.” As to Rojas’s due process claim, the panel determined that Rojas was not denied a presumption of innocence, because, at the voluntary departure hearing, he admitted to committing the crime. The panel explained that “[t]he IJ’s discretionary consideration of that admission simply has no implications for the presumption of innocence in a criminal case. Petition DENIED.