Unpublished Disposition, 872 F.2d 432 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 432 (9th Cir. 1987)


No. 87-7541.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1988.Decided April 5, 1989.

Before POOLE, REINHARDT and KOZINSKI, Circuit Judges.


Petitioner Ida Dizon Yturralde seeks review of a decision of the Board of Immigration Appeals affirming the immigration court's denial of Yturralde's requests for a continuance and for voluntary departure. We affirm.


Yturralde came to the United States from the Philippines in 1982 without an immigration visa. At a June 1984 hearing before an Immigration Judge (IJ), she admitted deportability but indicated that she wished to apply for asylum. She filed her asylum application the following month. She claimed that her life would be in danger if she returned to the Philippines, because she had been the common-law wife of Benjamin Bie, Jr., also known as Commander Melody. She explained that Commander Melody was a former communist leader who had been employed by the Marcos government as a paid assassin, had been coerced to testify falsely against the late Senator Benigno Aquino, and had been murdered in 1976 by a Marcos henchman because of his intention to turn against Marcos and return to the communist New People's Army.

At an evidentiary hearing in March 1985, Yturralde supported her asylum application by submitting an affidavit and a number of newspaper articles relating to recent political events in the Philippines. She was the only witness to testify. In her affidavit, she explained that she decided to flee the Philippines when she heard that Senator Aquino would be returning to the country. She feared that the Marcos government would attempt to kill her in order to prevent her from disclosing her knowledge of Commander Melody's false testimony against Aquino. Accordingly, she acquired falsified travel documents and entered the United States, where she continued to live in fear of agents of the Marcos government, particularly after Senator Aquino was assassinated upon his return to the Philippines in 1983.

The hearing reconvened thirteen months later, on April 18, 1986. In the interim, much had happened in the Philippines. Marcos and his wife had left the country on February 25, 1986, and Corazon Aquino, the widow of Benigno Aquino, had immediately replaced Marcos as president. At the hearing, Yturralde testified that she now feared persecution from the Aquino government because she had heard that President Aquino intended to reopen the case in which Commander Melody had testified falsely against Benigno Aquino. Yturralde requested a continuance to gather new evidence to support her revised application for asylum.

The IJ denied Yturralde's request for a continuance, denied her application for asylum, denied her request for voluntary departure, and ordered her deported. He found her testimony dishonest; he observed that it was "like that of a chameleon that changes colors to reflect its surroundings." Yturralde, No. A27-120-091 (Apr. 18, 1986), at 3. Yturralde appealed two issues to the Board of Immigration Appeals: the denial of the continuance and the denial of voluntary departure.

The BIA affirmed. The Board found that the IJ correctly denied Yturralde a continuance because she had not shown what type of new evidence she needed to gather, and had offered no basis for her fear of returning to the Philippines other than her claim that "she had 'heard' that the Aquino government would be investigating the former trial of Senator Benigno Aquino." Yturralde, No. A27-120-091 (BIA Dec. 8, 1987) (BIA op.), at 3. The BIA also affirmed the denial of voluntary departure, but for a reason different from that relied upon by the IJ. The BIA found that Yturralde's fear of the Aquino government was not inconsistent with her fear of the Marcos government, and thus found insufficient evidence of false testimony to deny voluntary departure on that ground. Id. The BIA instead denied voluntary departure because Yturralde had used falsified travel documents to enter the United States. Id. at 4.

Yturralde petitioned this court for review of the BIA's decision under 8 U.S.C. § 1105a(a) (1982). She claims that three errors occurred below: (1) The BIA, in affirming the IJ's denial of Yturralde's request for a continuance, failed to give proper consideration to the documentary evidence Yturralde presented at the deportation hearing; (2) the IJ abused his discretion in denying Yturralde's request for a continuance; and (3) the BIA abused its discretion in denying Yturralde's request for voluntary departure. We consider each allegation in turn.

I. Proper Consideration of Documentary Evidence

The BIA must consider all factors relevant to the issues before it. Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir. 1984); Prapavat v. INS, 662 F.2d 561, 562 (9th Cir. 1981) (per curiam). Yturralde claims that in affirming the denial of her request for a continuance, the BIA relied solely on her oral testimony at the hearings, ignoring her affidavit, documents from the Philippines pertaining to Commander Melody and newspaper articles detailing political events in the Philippines.

The BIA opinion never mentions the documentary evidence submitted by Yturralde; the opinion notes only that "respondent has failed to sustain her burden of producing evidence that President Aquino would persecute her." BIA op. at 3. An examination of the documentary evidence indicates that the BIA was correct. With the exception of Yturralde's own affidavit and copies of her children's birth certificates, none of the evidence reveals the slightest connection between Yturralde and Commander Melody. She submitted 82 pages of transcripts and motions relating to legal proceedings in the Philippines involving Commander Melody, and a number of newspaper articles discussing Senator Aquino and Commander Melody; none mention Yturralde or the fact that Commander Melody had a common-law wife. The birth certificates establish that Benjamin Bie, Jr., was the father of her children; while undoubtedly relevant to the ultimate deportation decision (which was not appealed), the birth certificates are of only marginal relevance to the issue of whether Yturralde should have been granted a continuance to gather additional evidence. The BIA did not err in failing to discuss documentary evidence which was not relevant to the two issues before it: the denial of a continuance and the denial of voluntary departure.

II. Denial of Yturralde's Request for a Continuance

We review the denial of a continuance for an abuse of discretion. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). An Immigration Judge may grant a continuance "for good cause shown." 8 C.F.R. Sec. 242.13 (1988). Where an alien seeks a continuance to obtain additional evidence, but offers no reason why she was unable to obtain the evidence prior to the hearing, an IJ does not abuse his discretion by denying a continuance. Kashefi-Zihagh v. INS, 791 F.2d 708, 711 (9th Cir. 1986).

Approximately two months elapsed between the fall of the Marcos government and the second installment of the hearing before the IJ. The political turmoil in the Philippines may well have been good cause for Yturralde's failure to obtain evidence relating to her claimed fear of the Aquino government, had she been able to specify the evidence she wished to present. Instead, she offered nothing but generalized assertions of her need to gather additional evidence. Even now, two years later, she is no more specific. In the absence of any showing of what she would have done with the extra time, it was not an abuse of discretion for the IJ to deny Yturralde's request for a continuance.

III. Denial of Yturralde's Request for Voluntary Departure

The granting or denial of a request for voluntary departure is a decision within the broad discretion of the BIA. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). We review the BIA's exercise of discretion to determine whether its decision was arbitrary or capricious. Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988).

The BIA denied Yturralde's request for voluntary departure because she used falsified travel documents to enter the United States. She claims she was unable to enter through legal channels because the United States government would have denied her a travel visa due to her age and position and the Philippine government would have denied her a passport on account of her relationship with Commander Melody. BIA op. at 4. The BIA considered these claims and found them unsubstantiated. The Board accordingly determined that her use of the falsified passport and birth certificate was not justified by a genuine fear of Philippine government persecution, and was thus a factor militating against the grant of voluntary departure. Id. at 4-5. A denial of voluntary departure based on an alien's unjustified attempts to avoid the immigration laws is not an abuse of discretion. Ramirez v. INS, 550 F.2d 560, 566 (9th Cir. 1977).


REINHARDT, Circuit Judge:

I dissent.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3