Tuesday, September 8, 2026
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Tung Accuses Colleagues of Distorting Facts
Jurist Says Senior Ninth Circuit Judges Reach Result of Temporarily Barring Deportation of Woman, Child Through One-Sided Recitation of Record
By a MetNews Staff Writer
Ninth U.S. Circuit Court of Appeals’s newest member, Judge Eric Tung, has accused two colleagues of distorting the facts in granting a stay in the deportation of a woman and her daughter to Guatemala, saying that the factual determination of an immigration judge is wrongly spurned by the majority.
Granting a petition for review of a decision by the Board of Immigration Appeals affirming an immigration judge’s decision were Senior Judges William A. Fletcher and Michael Daly Hawkins. The decision was adverse to Fernanda Estephani Beltran Rizo and her daughter.
The judge found that their application for asylum had been abandoned by virtue of requisite procedural steps not having been taken.
‘Good Cause Established’
The majority, in Thursday’s memorandum opinion, declared that Rizo “has established good cause for failure to timely complete her biometrics requirement.”
Biometrics are physiological characteristics. Testing—aimed at preventing illegal entry into the United States—includes fingerprinting and photographing for the purpose of automated recognition of facial features.
The judge determined that Rizo, not her lawyer, was at fault for the requirement not having been met. Fletcher and Hawkins wrote:
“On remand, Petitioner should be afforded a reasonable period in which to complete biometrics requirement before further proceedings on the merits.”
Tung’s Dissent
Tung protested that the majority presents “ ‘facts’ as ‘uncontested’ while “they are not.” He wrote:
“While the Immigration Judge told the Petitioner that her attorney ‘will work on getting an appointment,’ the judge also told the Petitioner that failure to complete the process by the next hearing would result in her application being deemed abandoned and stressed that ‘it’s important that [she] do this.’…Petitioner stated that she understood….According to the attorney’s testimony, he had ‘been trying to contact the [Petitioner]’ and had ‘mailed out the instructions for the biometrics.’…At the hearing, the attorney stated that he ‘tried calling her last week and she hung up on [him].’ ”
The dissenter continued:
“He further stated that she hasn’t been able to ‘communicate with her’ and that she has ‘been uncooperative.’…The attorney stated that ‘there’s just really not much I have been able to do towards communicating with her. And so, today I’m showing up here to file a motion to withdraw in hopes that she finds somebody to protect her.’…The attorney added that Petitioner’s ‘phone does not allow for us to leave messages. So, we would only communicate with her through either emails or letters. And we have been trying to communicate with her. She knew that we have been calling based on. I believe her caller ID.’…And the attorney concluded that ‘if [Petitioner] was really waiting for our instructions, she wouldn’t have hung up on me last week. But your honor, I’m going to not say much more without her waiving her attorney-client privilege….
“The majority does not present this side of the facts, so one is left with the impression that the attorney was neglectful. But as we see, that impression distorts the record.”
The case is Rizo v. Blanche, 25-3735.
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