Manuel Tinizaray-Narvaez v. ATTORNEY GENERAL OF THE UNITED STATES On a Petition For Review of an Order of the…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3333
___________
MANUEL TINIZARAY-NARVAEZ,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A097-451-921
Immigration Judge: Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 24, 2009
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
Opinion filed: November 24, 2009
___________
OPINION
___________
PER CURIAM
Petitioner Manuel Tinizaray-Narvaez, a native and citizen of Ecuador, entered the
United States in November 1994. He was served with a Notice To Appear for removal

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Cancellation of removal is available to an alien who has been physically present in1
the United States for at least 10 years, has been a person of good moral character, has not
been convicted of a specified criminal offense, and has established that removal would
result in exceptional and extremely unusual hardship to the alien's spouse, parent, or
child, who is a United States citizen or lawful permanent resident. 8 U.S.C. §
1229b(b)(1)(A)-(D).
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proceedings on May 31, 2005, alleging that he entered without being admitted or paroled
and thus is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8
U.S.C. § 1182 (a)(6)(A)(i). The allegations were conceded, and Tinizaray applied for
cancellation of removal, INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), and voluntary
departure, contending that his removal would cause an exceptional and extremely unusual
hardship to his United States citizen daughter, Leslie. Leslie was born on January 17,1
2000, in Newark, New Jersey to Tinizaray and Beatrice Gonzalez. She was five years old
at the time of removal proceedings. The couple live together but are not married, and Ms.
Gonzalez has two other children who also live with the couple. Like Tinizaray, Ms.
Gonzalez does not have lawful status.
On November 29, 2005, the Immigration Judge scheduled a merits hearing for
June 26, 2006. The IJ set a deadline of May 12, 2006 to submit information specific to
the cancellation of removal application, and also issued a written “control order,” which,
with respect to expert testimony, stated the following: “Agreement to telephonic
testimony of expert witnesses is encouraged and typically results where opposing counsel
is provided with a statement of the expert and a CV.” A.R. 230. On the record, the IJ

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stated:
All right. So, then May 12, 2006 is your deadline. I, I just don’t want any
evidence of any length or any voluminous evidence handed up at the merits
hearing because I'd like to have read over this case in advance. And also,
this will also make sure that, that you take care of talking to the trial
attorney about expert testimony that you might need to present. It, I don’t
know if you’re going to do that, but if it’s going to, to be a situation where
you want the expert to testify telephonically, then I would expect you to
coordinate that with opposing counsel.
A.R. 67-68.
On May 12, 2006, counsel for Tinizaray submitted a written request to enlarge the
time to file supporting evidence, stating that his expert neuropsychologist would be able
to evaluate Leslie on May 30, 2006, and would be able to deliver a comprehensive report
by June 6, 2006. The IJ denied the motion on the ground that Tinizaray had yet to submit
any documentary evidence with his cancellation of removal application, good cause was
not shown to await more evidence, and the delay was caused by Tinizaray.
Notwithstanding that his motion for an extension was denied, on June 19, 2006, counsel
submitted 60 pages of documents in support of the cancellation of removal application,
including most importantly, a four-page, detailed, expert report by a licensed clinical
psychologist, Stacey R. Tuchin, Psy.D. The submission also included Dr. Tuchin’s
curriculum vitae. Dr. Tuchin had evaluated Leslie on May 30, 2006, as promised. In
addition, as part of her evaluation, Dr. Tuchin had interviewed Leslie’s kindergarten
teacher over the telephone prior to writing her report.
Dr. Tuchin described Leslie as “an at-risk youngster emotionally and

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academically,” A.R. 158, explaining that:
Her symptoms of anxiety meet full diagnostic criteria for Separation
Anxiety Disorder (Diagnostic Code: 309.21), in accordance with the
Diagnostic and Statistical Manual of Mental Disorders. If her affective
reactions are prolonged and untreated, Leslie is at risk for the development
of more chronic psychological disturbances and interpersonal difficulties
relating to trust, separation, and rejection. Mr. Tinizaray experiences great
concern about the possibility of removal from the United States ... because
his daughter has formed a powerful attachment to him as a prophylaxis
against familial adversity. Mr. Tinizaray described significant emotional
abuse on the part of Leslie’s mother (e.g. episodes of affective
dysregulation and considerable anger management difficulties). It has only
been through his intervention that the abuse has not become physical. He
fears for his daughter’s safety should she be forced to remain in the United
States with her mother, a parental figure prone to behavioral difficulties.
Id.
Dr. Tuchin went on to summarize Leslie’s academic difficulties by noting that she
had expressive language difficulties, problems learning basic math concepts, socialization
difficulties, attention problems and shyness. Her kindergarten teacher had suggested that
Leslie would benefit from a formal program called Basic Skill Instruction, and other
evaluative and remedial interventions available in the school district to improve Leslie’s
level of scholastic and neurocognitive functioning. Id.
Last, Dr. Tuchin stated her conclusion:
It is clear to this examiner that the removal of Mr. Manuel Tinizaray would
pose an extreme and unusual hardship to Leslie Tinizaray. Compared to
other United States Citizen children similarly situated, the result of
deportation on the life of this youngster appears appreciably worse given
her diffuse vulnerabilities and the affective distress deportation would
inevitably cause. This is an especially compelling situation given that
several spheres of functioning would be irrevocably impacted, including

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psychological, academic, developmental, familial, and interpersonal realms.
Id.
At the merits hearing on June 26, 2006, counsel for the Department of Homeland
Security objected to all of the documents submitted because they were untimely, and
objected specifically to Dr. Tuchin’s evaluation because she was not available for cross-
examination. In response to the government’s objections, Tinizaray’s counsel explained
that it had been impossible to get an appointment with Dr. Tuchin before the deadline,
and that he had in his possession all of the other evidence but had not submitted it
because the expert report was the most important part of his case; he thought the better
approach would be to ask for an extension of time to file everything at once. The IJ
overruled the government’s untimeliness objection to all of the documents except Dr.
Tuchin’s report. With respect to that report, the IJ inquired as to whether Dr. Tuchin was
immediately available for cross-examination. Counsel responded that she was currently
attending a conference and so he had not asked here if she was available. Based on that
response, the IJ excluded the expert report.
At the request of the IJ, the government stated for the record questions it would
have propounded on cross-examination, including, but not limited to, questions
concerning Leslie’s diagnosis, what treatment was appropriate for her condition, and
whether that treatment was available in Ecuador. At the government’s suggestion,
Tinizaray’s counsel requested a continuance. A.R. 105-110. The IJ stated that she would

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not grant the continuance because she did not have “any reason to think that, that you or
your client will utilize any extra time to really make progress on the case.” A.R. 110.
The IJ instructed Tinizaray to make his case for a continuance on the record and
commented that “the one thing that you could have done and did not do is to bring to
court the mother of your child. So, I’m not sure about why I should postpone the case.”
Id.
In an effort to make his case and with respect to the untimely submission of Dr.
Tuchin’s evaluation, Tinizaray testified that his counsel had provided him with Dr.
Tuchin’s name and telephone number one week after the November 29, 2005 hearing.
Continuing, he stated:
I did try to make an appointment this February, but I was told that, that the
schedule was full, that I should call one month later because it was very
full. And once I called later on, I was told to call once again the next month
to see if somebody would drop out because I was told that it was full from
8:00 in the morning until 8:00 at night. So, when I called the second time ...
I was given [an] appointment for [May] 30th.
A.R. 114. As to Ms. Gonzalez, Tinizaray explained that she had declined to appear at the
hearing because she had to pick up her sons at school, and because she feared she would
be detained by immigration authorities if she appeared in immigration court.
The IJ issued an oral decision in which she denied Tinizaray’s request for a
continuance and his application for cancellation of removal. He was granted voluntary
departure. The IJ faulted Tinizaray for failing to contact Dr. Tuchin from November
2005 until February 2006, and for failing to make any effort to have Dr. Tuchin available

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The IJ proceeded directly to the hardship issue, and bypassed the physical presence2
and good moral character issues.
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for cross-examination. The IJ was not convinced that Tinizaray would make an effort to
secure Dr. Tuchin’s testimony in the future if a continuance was granted. Without Dr.
Tuchin’s report, which the IJ excluded, Tinizaray’s evidence on the hardship issue was
insufficient. His testimony revealed that Leslie is physically healthy, and not currently2
under any treatment, psychological or medical. Furthermore, because Ms. Gonzalez had
not appeared to testify, the IJ could not question her about what her plans might be with
respect to Leslie should Tinizaray be removed from the United States.
Tinizaray appealed to the Board of Immigration Appeals. He contended that the IJ
erred in not granting him additional time to arrange for Dr. Tuchin to testify, and the error
constituted a due process violation. He noted that he had not previously asked for a
continuance, had been present at all hearings, and had not taken any actions which were
dilatory. Moreover, his cancellation of removal application had merit.
In a decision dated July 7, 2008, the Board agreed with the IJ and dismissed the
appeal. The Board agreed that the evidence did not establish exceptional and extremely
unusual hardship, and found no error in the IJ’s decision to deny the request for a
continuance, 8 C.F.R. § 1003.29. The Board concluded that Tinizaray failed to establish
that the result of the proceeding would have been different with a continuance, and noted
that Tinizaray had not availed himself of the opportunity to submit pertinent evidence

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during the pendency of his appeal in support of a motion to remand. This observation
was made by the Board notwithstanding that the excluded evidence – Dr. Tuchin’s report
– appears in the Administrative Record as Exhibit “D” to the cancellation of removal
application.
Tinizaray filed a timely petition for review in this Court and sought a stay of
removal. The government filed a motion to dismiss the petition for review, contending
that section 1252(a)(2)(B)(i) of the jurisdictional statute, 8 U.S.C. § 1252, removes our
jurisdiction over the Board’s discretionary decisions regarding the cancellation of
removal/hardship determination under 8 U.S.C. § 1229b. A motions panel of this Court
granted the request for a stay of removal and referred the government’s motion to dismiss
to a merits panel, it appearing that jurisdiction was not lacking. The parties have
submitted briefs and the petition is ripe for disposition.
We will grant the petition for review, vacate the Board’s decision, reverse the IJ’s
order denying a continuance, vacate the IJ’s order granting cancellation of removal, and
remand the matter for further proceedings. As a threshold matter, we have jurisdiction to
review the denial of an alien’s request for a continuance. Khan v. Att’y Gen. of U.S., 448
F.3d 226, 233 (3d Cir. 2006) (because IJ’s authority to rule on continuance motion is not
specified under 8 U.S.C. §§ 1151-1378 to be in the discretion of the Attorney General,
section 1252(a)(2)(B)(ii) does not deprive court of appeals of jurisdiction). Tinizaray
does not contend that he meets the hardship definition without Dr. Tuchin’s report. The

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Tinizaray also contends that he was prejudiced by prior counsel’s ineffective3
assistance in that documentary evidence was not timely presented in support of his
cancellation of removal application. Tinizaray also raises a due process argument
concerning the fairness of the proceedings. Because we have determined that the IJ's
decision to deny the continuance constituted an abuse of discretion, we need not reach
these arguments.
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only issue presented by the petition for review is whether the IJ erred in denying the
request for additional time to arrange for Dr. Tuchin to be cross-examined.3
If a document is not filed within the time set by the IJ, it may be excluded, 8
C.F.R. § 1003.31(c), but an IJ may “grant a motion for continuance for good cause
shown,” 8 C.F.R. § 1003.29. We review an IJ's decision to deny a continuance for abuse
of discretion, see Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003), meaning
that we will reverse it only if it is arbitrary, irrational or contrary to law, see Hashmi v.
Att’y Gen. of U.S., 531 F.3d 256, 259 (3d Cir. 2008). In Ponce-Leiva, we held that there
are no bright-line rules for resolving whether the denial of a continuance constitutes an
abuse of discretion; the issue “must be resolved on a case by case basis according to the
facts and circumstances of each case.” 331 F.3d at 377 (quoting Baires v. Immigration &
Naturalization Serv., 856 F.2d 89, 91 (9th Cir. 1988)). In addition, we have noted that the
lack of facial merit in the underlying application for relief may be taken into
consideration in denying a continuance, see Ponce-Leiva, 331 F.3d at 377, and so it
necessarily follows that arguable merit to the underlying application is a circumstance
weighing in favor of granting a continuance.

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We conclude that the IJ abused her discretion by denying Tinizaray’s request for a
continuance to permit the clinical psychologist the opportunity to testify in person, or
telephonically, regarding the issue of hardship to Tinizaray’s United States citizen
daughter. The Board abused its discretion by affirming the IJ’s decision and failing to
remand the matter for additional proceedings and a decision on the merits of the
cancellation of removal application.
In removal proceedings, an alien who applies for relief has the burden of proof to
establish that he satisfies the applicable eligibility requirements, and, with respect to any
form of relief that is granted in the exercise of discretion, that he merits a favorable
exercise of discretion. 8 U.S.C. § 1229a(c)(4)(A). Section 240(c)(4)(B) further provides
that the alien must comply with the applicable requirements to submit information or
documentation in support of his application for relief as provided by law or by regulation,
or in the instructions for the application. 8 U.S.C. § 1229a(c)(4)(B). An IJ may set time
limits for the filing of documents. 8 C.F.R. § 1003.31(c).
Here, the May 12, 2006 deadline for submission of supporting documents was
generous. Moreover, the IJ explained on the record her reasons for the deadline – she
wanted time to review the submissions prior to the hearing, and wanted counsel to work
out the details of telephonic examination of any experts. The IJ faulted Tinizaray for
dilatory conduct because she received the four-page expert report only a week in advance
of the hearing. Under the circumstances, this was arbitrary. Although Tinizaray may

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have been at fault for waiting three months before calling Dr. Tuchin to schedule an
appointment, he was not at fault for the delay between February and May 30, the date
when Dr. Tuchin finally was able to evaluate Leslie. This delay of several months
occasioned by the specialist’s busy schedule is no one’s fault. The IJ did not want any
late-submitted evidence of any length or any voluminous evidence, which was a
reasonable demand, but Dr. Tuchin’s report was neither of these things. The IJ also
faulted Tinizaray for failing to confer with Dr. Tuchin about the doctor’s availability on
June 26, but, since she was scheduled to be at a conference anyway, the failure to consult
was not the cause of the doctor’s unavailability, and Dr. Tuchin’s conference schedule
also is not Tinizaray’s fault. Tinizaray had not previously asked for a continuance and the
case was by no means old. The IJ’s assumption that he would not make good use of a
continuance had no basis in the facts and circumstances of the case. See Ponce-Leiva,
331 F.3d at 377 (issue of continuance “must be resolved on a case by case basis according
to the facts and circumstances of each case”).
Moreover, the prejudice to Tinizaray from exclusion of the report cannot be
overstated. Congress created the relief of cancellation of removal under INA §
240A(b)(1) as part of the Illegal Immigration Reform and Immigrant Responsibility Act.
IRRIRA’s standard of “exceptional and extremely unusual hardship” is meant to be
stringent. See Matter of Andazola, 23 I. & N. Dec. 319, 322 (BIA 2002) (en banc);
Matter of Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002) (en banc). In Matter of Monreal,

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Dr. Tuchin’s curriculum vitae established her substantial qualifications. She received4
a Bachelor of Arts degree from Wellesley College, a secondary school teacher
certification from Harvard University, a doctoral degree from Yeshiva University, and she
did a one-year post-doctoral fellowship in neuropsychology at Yale University in the
School of Medicine.
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23 I. & N. Dec. 56 (BIA 2001), the Board found that, to establish "exceptional and
extremely unusual hardship," an alien must show that the qualifying relative would suffer
hardship substantially beyond that which would normally result from deportation. Id. at
60. See also Andazola, 23 I. & N. Dec. at 322. Nevertheless, the Board will consider
“the ages, health, and circumstances of qualifying ... relatives.” Monreal, 23 I. & N. Dec.
at 63. An applicant with financially dependent elderly parents would have a strong case
and so would an applicant who had a qualifying child “with very serious health issues, or
compelling special needs in school.” Id.
As part of her evaluation of Leslie, Dr. Tuchin, a well-qualified clinical
psychologist, administered a battery of tests, spoke to Leslie’s kindergarten teacher, and
interviewed Tinizaray. She then emphatically concluded that Leslie was “at risk”4
emotionally and academically, possibly as a result of her mother’s improper behavior
toward her. Dr. Tuchin described Leslie’s case as “appreciably worse” than other
similarly situated United States citizen children of parents who are subject to removal.
She concluded that the case was “especially compelling,” and that most aspects of
Leslie’s functioning would be negatively impacted by Tinizaray’s removal because he
appeared to be her only positive nurturing influence. It is hard to imagine a more

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powerful statement of exceptional and extremely unusual hardship.
We also do not fault Tinizaray for failing to produce Ms. Gonzalez. Under the
circumstances of Dr. Tuchin’s report, Tinizaray’s explanation for her unwillingness to
attend the hearing is satisfactory. The IJ remarked on the lack of evidence, but never
once commented on the content of Dr. Tuchin’s report, and summarily dismissed this
evaluation which describes a real possibility that a qualifying relative – a child – would
face an exceptional and extremely unusual hardship upon the removal of her nonresident
alien parent. See Monreal, 23 I. & N. Dec. at 63 (applicant who has qualifying child with
“very serious health issues, or compelling special needs in school” has strong case). This
was not a case where no evidence was submitted. Dr. Tuchin’s report is richly detailed,
and any uncertainty the IJ may have had about the impact on Leslie of her father’s
removal from the United States could have been cured by granting a short continuance
whereby the clinical psychologist could have been produced to offer testimony in support
of the written report submitted.
Such persuasive evidence establishing merit is a circumstance that should have
been taken into consideration and should have weighed in favor of granting a
continuance, see Ponce-Leiva, 331 F.3d at 377. The IJ would not have been
inconvenienced by a short continuance, and the need to consider Dr. Tuchin’s evaluation
clearly outweighed any considerations relating to the IJ’s calendar. See Baires, 856 F.2d
at 92. In Hashmi, we held that a denial of a continuance based on case-completion goals

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set by the Department of Justice, rather than on the facts and circumstances of the alien’s
case, was impermissibly arbitrary. 531 F.3d at 261. The reasoning of Hashmi applies
here. A judge’s calendar is a means to a prompt and fair disposition; it is not an end in
itself. Id.
Furthermore, the granting of a continuance would not have prejudiced the
government, and, in fact, the government gave every indication that it preferred the
granting of a continuance. Cf. United States v. McCoy, 313 F.3d 561, 565-66 (D.C. Cir.
2002) (en banc) (“good cause” inquiry typically considers adverse effect on opposing
parties). Recognizing that denial of a continuance would severely and negatively affect
the case, the government wanted only the opportunity to cross-examine Dr. Tuchin, and to
question her about her findings and conclusions. It did not seek to exclude consideration
of the report altogether.
Tinizaray has asked that we remand the matter to a different judge. We decline
that request. Although we have found impermissible arbitrariness in the IJ’s rigid
adherence to the control order, nothing on the record suggests that the IJ cannot render an
impartial decision on the merits of Tinizaray’s cancellation of removal application. We
express no view on the overall merits of the application, and leave that to the IJ in the first
instance.
For the foregoing reasons, we will grant the petition for review, vacate the Board’s
decision, reverse the IJ’s order denying a continuance, vacate the IJ’s order denying the

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cancellation of removal application, and remand for further proceedings consistent with
this opinion.
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