Ever Serrano-Alberto v. Attorney General United States , 859 F.3d 208 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 15-3146 & 16-1586
_______________
EVER ULISES SERRANO-ALBERTO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of Orders of the
Board of Immigration Appeals
(BIA No. A206-801-902)
Immigration Judge: Honorable Mirlande Tadal
_______________
Argued: October 25, 2016
Before: VANASKIE, KRAUSE, and NYGAARD, Circuit
Judges
(Opinion Filed: June 12, 22017)
Zachary Nightingale, Esq. [ARGUED]
Alisa R. Whitfield, Esq.
Van Der Hout Brigagliano & Nightingale
180 Sutter Street
5th Floor
San Francisco, CA 94104
Counsel for Petitioner
Thomas W. Hussey, Esq.
Lindsay M. Murphy, Esq. [ARGUED]
Song E. Park, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
The Fifth Amendment protects the liberty of all
persons within our borders, including aliens in immigration
proceedings who are entitled to due process of law—that is, a
meaningful opportunity to be heard—before being deported.
In this case, we are called upon to clarify our case law and to
demarcate the boundaries of the due process owed to aliens in
removal hearings. Because we conclude that the Immigration
2
Judge here denied Petitioner this fundamental right by
actively preventing him from making his case for asylum,
withholding of removal, and protection under the Convention
Against Torture (CAT), we will grant the petition for review
of the Board of Immigration Appeals’ affirmance and will
vacate and remand for rehearing, urging reassignment on
remand to a different Immigration Judge.
I. Factual and Procedural Background1
Petitioner Ever Ulises Serrano-Alberto, a widely
acclaimed professional soccer player, fled to the United States
from his native country of El Salvador to escape violence at
the hands of the notorious Mara Salvatrucha gang, commonly
known as MS13. Serrano-Alberto was born and raised in the
town of Apopa outside of San Salvador, the capital city of El
Salvador, a nation consumed by gang warfare in recent years.
Between approximately 2000 and 2008, Serrano-Alberto
enjoyed a high-profile career in the Salvadoran national
1
We begin with this factual summary of the events
precipitating Serrano-Alberto’s case, the substance of which
is principally derived from the evidence and allegations
presented to the IJ before and during Serrano-Alberto’s
removal hearing, to provide context for our discussion of that
hearing. It is, of course, within the exclusive province of the
agency to make factual findings, Camara v. Att’y Gen., 580
F.3d 196, 201 (3d Cir. 2009), and here—where we evaluate a
petition for review alleging denial of due process and will
grant the petition and remand for rehearing on that basis—the
assigned IJ will determine the facts based on the new
evidentiary record assembled before it. See Johnson v.
Ashcroft, 286 F.3d 696, 702-03 (3d Cir. 2002); Matter of Y-S-
L-C-, 26 I. & N. Dec. 688, 690-92 (BIA 2015).
3
soccer league, garnering significant attention as a result of his
success.
Serrano-Alberto’s fame, however, did little to insulate
him from MS13 gang violence, and, indeed, appears to have
made targets of both him and his family since at least 2007.
At that point, suspected gang members shot his brother,
Edwin, leaving him paralyzed. The following year, according
to Serrano-Alberto, the MS13 gang began to extort him for
cash under threat of death. Although he first acquiesced out
of fear for his family members’ lives, and made six payments
that fall, in November of 2008 he rejected the gang’s
persistent demands and communicated that he would no
longer comply. Two weeks later, three suspected gang
members shot Serrano-Alberto, his nephew, and a neighbor
outside of Serrano-Alberto’s mother’s house, killing the
neighbor and leaving Serrano-Alberto and his nephew
hospitalized and in serious condition.
The police came to speak with Serrano-Alberto once
during his hospital stay. Given the frequent collusion
between the police and gang members, Serrano-Alberto was
hesitant but willing to provide information. The police,
however, refused to take a report because Serrano-Alberto did
not know the names of the people who shot him, and although
the police said they would return to the hospital to talk with
him further, they neither returned nor pursued an
investigation. In 2009, fearing further gang reprisal, Serrano-
Alberto twice attempted to flee the country but he was
returned both times by Mexican authorities.
Between late 2009 and May 2012, Serrano-Alberto
was imprisoned in El Salvador on extortion charges of which
he was ultimately absolved. Even while he was imprisoned,
4
however, gang members continued to search for him, and
they shot another one of his brothers when that brother
refused to divulge Serrano-Alberto’s whereabouts.
Immediately following his release from prison in 2012,
Serrano-Alberto was targeted in yet another shooting—once
again in his mother’s neighborhood—by unknown assailants
on a motorcycle. He narrowly escaped harm by diving under
a nearby car.
After that incident, Serrano-Alberto moved multiple
times to evade detection by MS13, settling in October 2013 in
La Gloria, San Salvador, where he lived and worked with an
older brother. During this time, his mother called and warned
that gang members were continuing to pursue him with the
intention of killing him, and soon after, in 2014, Serrano-
Alberto observed what he believed to be those gang members
in his new neighborhood. At that point, Serrano-Alberto fled
to the United States.
In July 2014, not long after crossing into Texas,
Serrano-Alberto was apprehended and detained by
Department of Homeland Security Border Patrol. In
December 2014, Serrano-Alberto applied for asylum,
withholding of removal, and protection under the CAT,
contending he feared persecution by gangs based on his
5
membership in an unspecified particular social group (PSG).2
The manner in which the presiding IJ conducted Serrano-
Alberto’s removal hearing, which is the subject of this appeal,
is discussed in more detail below. In sum, the IJ was
confrontational, dismissive, and hostile, interrupting and
belittling Serrano-Alberto’s testimony, time and again cutting
off his answers to questions, and nitpicking immaterial
inconsistencies in his account. The next day, she ordered his
removal from the United States. Serrano-Alberto appealed to
the BIA, which twice rejected his entreaties, first affirming
the IJ and then summarily denying Serrano-Alberto’s motion
to reopen his case in a one-and-a-half page opinion.
Serrano-Alberto now petitions this Court for review of
both orders of the BIA, asserting, inter alia, that the BIA
misapplied the law in rejecting his due process challenge to
the IJ’s order of removal. For the reasons that follow, we
agree.
II. Jurisdiction and Standard of Review
Although our jurisdiction is limited to final orders of
the BIA under 8 U.S.C. § 1252, where the BIA affirms the IJ
for the reasons set forth in his or her opinion, we review the
2
Whether a social group constitutes a PSG, and is thus
cognizable under the Immigration and Nationality Act (INA),
see 8 U.S.C. § 1101(a)(42)(A), is a continuously developing
question of law and one that must be answered on a case-by-
case basis, see Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d
582, 594-609 (3d Cir. 2011). Here, Serrano-Alberto
identified his putative PSGs as soccer players perceived as
wealthy and “professional soccer player[s] actively resisting
gang control.” Appellant’s Br. 36.
6
IJ’s decision directly. Huang v. Att’y Gen., 620 F.3d 372, 379
(3d Cir. 2010). We will affirm findings of fact supported by
substantial evidence and are bound by those findings “unless
a reasonable adjudicator would be compelled to arrive at a
contrary conclusion,” Camara, 580 F.3d at 201, while we
exercise plenary review over legal determinations, including
whether a petitioner’s due process rights have been violated,
see Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir.
2005). By contrast, we review the denial of a motion to
reopen for abuse of discretion and will reverse only if the
denial was “arbitrary, irrational, or contrary to law.”
Abulashvili v. Att’y Gen., 663 F.3d 197, 202 (3d Cir. 2011).
III. Discussion
This appeal requires us to carefully examine the
underlying administrative proceeding that gives rise to this
appeal and to situate that proceeding in the landscape of our
precedent governing due process in removal hearings.
Below, we first address the legal standards governing due
process claims and the grounds for relief from removal raised
by Serrano-Alberto. Next, we review in detail Serrano-
Alberto’s removal hearing and the process that led to his
denial of relief. And finally, we consider our due process
cases to date and their implications for the removal
proceedings in this case.
7
A. Legal Standards Governing Serrano-
Alberto’s Due Process Claims and
Underlying Claims for Relief
Throughout all phases of deportation proceedings,
petitioners must be afforded due process of law. See Abdulai
v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). The Fifth
Amendment thus guarantees aliens who are seeking to
forestall or terminate removal proceedings an “opportunity to
be heard at a meaningful time and in a meaningful manner.”
Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
This guarantee comprises three key protections: (1)
“factfinding based on a record produced before the
decisionmaker and disclosed to him or her”; (2) the
opportunity to “make arguments on his or her own behalf”;
and (3) “an individualized determination of his [or her]
interests.” Id. (internal quotation marks omitted). In other
words, petitioners must receive “a full and fair hearing that
allows them a reasonable opportunity to present evidence on
their behalf,” Abdulrahman, 330 F.3d at 596 (internal
quotation marks omitted), and a decision on the merits of
their claim by a “neutral and impartial arbiter,” Abulashvili,
663 F.3d at 207.
A petitioner claiming a procedural due process
violation because he was not afforded the opportunity to
argue on his own behalf is required to show “(1) that he was
prevented from reasonably presenting his case[,] and (2) that
substantial prejudice resulted.” Fadiga v. Att’y Gen., 488
F.3d 142, 155 (3d Cir. 2007) (internal quotation marks
omitted). The nature of this right is one that focuses on the
fairness of the process itself, see Cham v. Att’y Gen., 445
8
F.3d 683, 691, 693 (3d Cir. 2006), and the substantial
prejudice standard “is not so high” as to require a petitioner to
prove he “would have qualified for asylum, withholding of
removal or CAT relief” but for the alleged violation, id. at
694. Rather, a petitioner establishes a due process claim by
showing that the infraction has “the potential for affecting the
outcome of [the] deportation proceedings.” Id. (quoting
Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir. 1987))
(alteration in original).
Because the potential for affecting the outcome of any
given deportation proceeding requires the court to consider
the record in relation to the potential grounds asserted for
relief, we briefly summarize the three grounds urged by
Serrano-Alberto; asylum, withholding of removal, and
eligibility for CAT protection, each of which carries different
requirements.
A petitioner seeking asylum must establish a well-
founded fear of future persecution in his home country “on
account of race, religion, nationality, membership in a
particular social group, or political opinion,” 8 U.S.C.
§ 1101(a)(42)(A); see id. § 1158(b), by demonstrating a
subjective fear that is objectively reasonable, Guo v. Ashcroft,
386 F.3d 556, 564-65 (3d Cir. 2004). While not sufficient on
its own to establish eligibility for asylum, substantial
evidence of past persecution “triggers a rebuttable
presumption of a well-founded fear of future persecution, as
long as that fear is related to the past persecution.” Singh v.
Gonzales, 406 F.3d 191, 195-96 (3d Cir. 2005).
Although asylum is ultimately granted at the Attorney
General’s discretion, withholding of removal, if established,
9
is mandatory. Id. at 196. An applicant must make the same
showing as that required for asylum, but must meet a more
stringent “clear probability” standard, “that is, that it is more
likely than not that h[is] life or freedom would be threatened
if returned to h[is] country” because of his membership in a
statutorily protected class. Kaita v. Att’y Gen., 522 F.3d 288,
296 (3d Cir. 2008) (internal quotation marks omitted).
To qualify for protection under the CAT, a petitioner is
required to demonstrate that “it is more likely than not that he
. . . would be tortured” if returned to his country of origin. Id.
at 300. Unlike asylum and withholding of removal, the
petitioner’s protected status is irrelevant, but he must show
that “severe pain or suffering” will likely be “inflicted by or
at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.”
Id. (quoting 8 C.F.R. § 208.18(a)(1)) (additional citation
omitted).
Following an adverse ruling with respect to any of
these three grounds for relief, an applicant may appeal to the
BIA, which reviews an IJ’s conclusions of law and
discretionary exercise of authority de novo but accords
deference to factual findings, reversing the latter only for
clear error. See Huang, 620 F.3d at 381. Once removal
proceedings have concluded, a petitioner may file a motion to
reopen, which will be granted only in “compelling
circumstances,” Shardar v. Att’y Gen., 503 F.3d 308, 313 (3d
Cir. 2007), and will be denied if the BIA determines “(1) the
alien has not established a prima facie case for the relief
sought; (2) the alien has not introduced previously
unavailable, material evidence; or (3) in the case of
discretionary relief (such as asylum), the alien would not be
10
entitled to relief even if the motion was granted,” Huang, 620
F.3d at 389 (internal quotation marks omitted). With these
standards in mind, we turn to the process that was afforded
Serrano-Alberto.
B. Serrano-Alberto’s Removal Proceedings
Before the IJ and BIA
Two patterns emerge from the record concerning
Serrano-Alberto’s removal proceedings, spanning from his
initial credible fear interview and application paperwork
submitted to the Immigration Court to the actual removal
hearing and denial of relief by the IJ and the BIA. First,
Serrano-Alberto consistently asserted facts in his submissions
that on their face offered strong support for his claims for
relief. Second, at the hearing itself, his attempts to convey
those facts were undercut by the IJ’s hostile and impatient
attitude, repeated interruptions and castigations, constrictions
on relevant responses, and inexplicable focus on irrelevant
details.
We begin our review of this record with the written
materials assembled before the hearing and available for the
IJ’s review. These included Serrano-Alberto’s I-589
application for relief, a DHS worksheet detailing his credible
fear interview, documentary evidence submitted by Serrano-
Alberto, and additional agency records and a country report
provided by the DHS. In his I-589 application, Serrano-
Alberto sought asylum or withholding of removal based on
his membership in an unspecified PSG, and he responded
affirmatively when asked whether he, his family, or his close
friends had ever experienced harm, mistreatment, or threats,
explaining, “In 2008 they tried to kill me, they asked for
money in exchange of my life and my family the gangs,
11
because I played futbol in the first division, . . . they I [sic]
made a lot of money.” AR 686.3 In answering whether he
feared harm or mistreatment if returned to his home country,
he stated, “[T]he gangs would kill me, because they keep
trying to find me. 2 years ago they shot at me again 2 people
on a motorcycle. My little brother as well has gotten injured
and was left on a wheel chair and my brother who is older
they tried to kill days after.” AR 686. Additionally, with
respect to whether he had ever been “accused, charged,
arrested . . . or imprisoned in any country other than the
United States,” he explained that he “was detained . . . and . . .
investigated” in El Salvador, but eventually released and
exonerated “because [he] did not have relation with the case.”
AR 687. Finally, Serrano-Alberto also expressed in his
application a fear of “being subjected to torture” if returned to
El Salvador because “the gang already tried to kill also my
brother have been injured [sic] in my country the gang
operate with a final of causing fear, death, torture, &
extorture, kidnap at a . . . national level.” AR 687.
Serrano-Alberto’s credible fear worksheet offered
similar insight into the factual grounds he alleged in support
of his claims. The DHS agent who interviewed Serrano-
Alberto after he was apprehended crossing the border found
him to be fearful of persecution if returned to El Salvador,
noting on the worksheet that Serrano-Alberto feared
deportation “because the gangs will kill [him]”; that after
Serrano-Alberto was shot six times in 2008—an incident
reported in the news—“the police would not take [his] report,
3
Throughout, we cite Serrano-Alberto’s Appendix
(App.) whenever possible and the Administrative Record
(AR) as necessary.
12
because [he] did not know the names of the people who shot
[him]” and never asked him to describe what he witnessed
that day; that Serrano-Alberto was the target of a shooting
three years later because, he believed, he had witnessed the
murder of his mother’s neighbor in 2008; and that Serrano-
Alberto did not believe he could relocate within El Salvador
because the gang would be able to find him. App. 172.
Serrano-Alberto confirmed the accuracy of this account to the
interviewing agent.
Also contained in the written record was Serrano-
Alberto’s documentary evidence, which included newspaper
articles regarding both his professional soccer career and the
2008 shooting; affidavits attesting to his good character;
records of his 2012 acquittal; and his brothers’ and his own
medical records corroborating their bullet wounds from the
shootings. The documentary evidence also included materials
submitted by the DHS, such as Serrano-Alberto’s initial
detainment records, and a U.S. Department of State country
report on human rights practices in El Salvador.
While the written materials in the record provided
significant support for granting Serrano-Alberto relief,
Serrano-Alberto was far less successful in his efforts to
communicate the basis for his claims at the removal hearing
itself. That hearing took place in February 2015, before IJ
13
Mirlande Tadal in Elizabeth, New Jersey.4 Serrano-Alberto,
at that point, was proceeding pro se and participating
remotely by videoconference from the detention facility
where he was housed. In addition to the IJ and Serrano-
Alberto, a Spanish interpreter and a DHS representative were
present.
From the outset, the IJ took an argumentative tone and
expressed exasperation. Her first exchange with Serrano-
Alberto was a contentious one, precipitated by Serrano-
4
The Government produced the audio recording of this
hearing on the Court’s request, although it urged that the
recording not be considered because the BIA was not
obligated to listen to it and Serrano-Alberto failed to request
that it be included in the record before the BIA. See generally
8 C.F.R. § 1003.5(a) (requiring that the record from the
Immigration Court be forwarded to the BIA on appeal and
directing the expeditious transcription of all relevant
proceedings); Executive Office of Immigration Review,
Immigration Court Practice Manual at 68 (Apr. 11, 2017),
https://www.justice.gov/sites/default/files/pages/attachments/
2016/12/02/practice_manual.pdf (“If an Immigration Judge’s
decision is appealed to the [BIA], the hearing is transcribed in
appropriate cases and a transcript is sent to both parties.”).
Although we note that, whether on its own initiative or upon
request of counsel, the BIA’s review of such recordings could
more fully inform its evaluation of a due process claim and
facilitate appellate review, we agree with the Government that
where, as here, it is not apparent the audio recording was
made part of the record before the BIA, we will not consider
it part of the record on appeal. We therefore do not rely on
the recording for purposes of this opinion.
14
Alberto’s misunderstanding of a question she asked regarding
his I-589 application. Specifically, after confirming a packet
of documentary evidence she received prior to the hearing
was indeed submitted by Serrano-Alberto, the IJ asked
whether he wished to make any corrections to his application,
and he responded by attempting to verify the packet included
a letter he had submitted from one of his brothers. The IJ
reacted by immediately admonishing him to “[P]lease answer
my questions. I am having problems today. No one wants to
answer my questions.” App. 26.
Resuming her questioning, the IJ then asked where in
El Salvador Serrano-Alberto resided when he fled the country
and how long he had lived there. When Serrano-Alberto
proved unable to answer with a single residence and fixed
time period because of his frequent moves to avoid detection
by the gang, the IJ quickly became frustrated, stating on the
record: “Okay, let’s start again, sir. Please listen to the
question. If you did not understand it, ask. I will repeat it.
Ask me to repeat the question.” App. 31. The second time
around, Serrano-Alberto again attempted to explain his moves
and why he could not provide precise dates, testifying: “Well,
as I said before, I didn’t live there [in Residencial La Gloria]
for too long because I had to change my place of residence. I
had to go from one place to another.” App. 31-32. The IJ
then interrupted even before the interpreter had the
opportunity to translate Serrano-Alberto’s next answer into
English: “No, no, excuse me. All right, I understood that part
of Spanish. You refuse to answer my question. You may
have lived in other places -- . . . provide me with the year, the
month and year you began living there until, a month and
year and then after that you’ll be able to tell me after you left,
15
you left this place you went to live to [sic] another place. All
right, sir?” App. 32.
The tenor of the hearing only deteriorated from there.
In addition to maintaining her hostile tone, the IJ interrupted
Serrano-Alberto’s testimony on multiple occasions and
directed him to provide only “yes or no” answers to her
questions, effectively precluding Serrano-Alberto from
making his case. App. 37-38, 48. For example, during
Serrano-Alberto’s testimony regarding the police response to
the 2008 shooting, the IJ’s interjections repeatedly prevented
Serrano-Alberto from presenting evidence critical to the
element of government acquiescence in Serrano-Alberto’s
claim for protection under the CAT. First, the IJ asked
whether Serrano-Alberto was able to provide the police with
the names of the shooters, as they had requested, and Serrano-
Alberto replied, “To me, it was not so easy because it is very
hard to give information to the police in my country.” App.
37. Failing to recognize the significance of this assertion, the
IJ instead simply repeated her question, asking, “Did you
provide, did you provide, when the police made this inquiry,
did you provide information to the police? Yes or no, sir.”
App. 37. When Serrano-Alberto responded, “I didn’t do it
because they said they were going to come back and they
didn’t,” App. 37, the IJ retorted, “No, when they asked you
the information that day, sir, they asked you if you knew the
name, the nickname, of those who may have assaulted you or
shot at you. Did you give the police information right there
and then? It was a simple question. Yes or no? Yes or no,”
App. 37. And when Serrano-Alberto explained that he “did
not know who the[] [shooters] were” and he “could not
identify them directly,” the IJ reprimanded: “Sir, please listen
to me. Just answer the question. You have a habit of not
16
answering the question. All right, we’re going to be here all
afternoon if you don’t answer the question. All right, did you
know who these people were, sir, yes or no?” App. 37-38.
Serrano-Alberto tried one more time, saying, “I just know that
they were gang members.” App. 38. Again the IJ interjected:
“When the police asked you to identify them, were you able
to identify them to the police, yes or no?” App. 38. Serrano-
Alberto finally replied, “No.” App. 38.
The IJ’s interference with Serrano-Alberto’s
presentation of his case was further exacerbated by the IJ’s
surprising lack of familiarity with the record at the hearing.
For example, she incorrectly believed Serrano-Alberto had
been convicted of extortion in El Salvador, apparently having
overlooked the evidence he submitted of his acquittal.
Additionally, she was unaware of Serrano-Alberto’s career as
a professional soccer player, going so far as to chide him for
identifying his occupation as “playing football” and rejoining,
“Did you work, sir? Please answer my question. We’ll get to
everything, sir. Did you work in El Salvador?” App. 33.
In another instance, although the written record before
the IJ disclosed that the reason Serrano-Alberto fled to the
United States was that he believed gang members would find
him in his last place of residence, La Gloria, the IJ
repetitiously asked only whether he “ha[d] any problems in
La Gloria.” App. 48. Frustrated by his answers that: “I didn’t
have any problems there because I didn’t spend a lot of time
there,” and, “Well, I always found a way not to spend too
much time where I lived,” App. 48, the IJ interposed, “I’ll ask
the question again for the third time. Did you experience any
problems in La Gloria? Yes or no,” App. 48. At that point,
Serrano-Alberto replied, “Directly, no, I didn’t have any
17
problems, but, yes, they were looking for me.” App. 48.
Even then, when Serrano-Alberto tried to explain that his
family members in other parts of the country had been
approached by gang members who were looking for him
during the time he was living in La Gloria, the IJ remained
tightly focused on the fact that he had no direct, face-to-face
contact with gang members in that location, stating, “Let’s
focus on your situation, sir. You claim that gang members
were looking for you. How did you . . . come to the
conclusion that gang members were looking for you while
you were in La Gloria?” App. 48. When Serrano-Alberto
again described the warnings he had received from family
members living elsewhere in El Salvador that the gangs were
attempting to locate him, instead of inquiring further about
these warnings, the IJ asked, “Did you have any direct contact
with gang members in La Gloria, sir? Did you have face to
face contact with them?” App. 49. Serrano-Alberto replied
that, other than observing “suspicious things going on” such
as an “unknown car driving around” his neighborhood, he had
not had face-to-face contact with gang members. App. 49.
The IJ then moved on.
At the same time the IJ curtailed Serrano-Alberto’s
ability to explain himself or finish his answers, she repeatedly
steered Serrano-Alberto away from matters directly relevant
to his eligibility for relief, focusing instead on inconsequential
details and inconsistencies that were easily reconcilable with
Serrano-Alberto’s narrative. For example, when Serrano-
Alberto explained that the reason he was shot in 2008 was
that he had refused to make any additional payments to the
gang—payments demanded “in exchange of not killing [him
or his] family,” App. 42—the IJ, instead of eliciting further
testimony on this point, chastised Serrano-Alberto for
18
confusing the frequency and exact dates of his prior payments
to the gang. Even though he was able to recall making
approximately six payments “between September and
November of 2008,” App. 42, his inability to provide the
exact date and amount of each payment prompted the IJ to
retort: “[W]hen I ask you a question, sir, there is a reason why
the question was asked. When you answer my question, I
listen to you, sir, and . . . your answers are being recorded.
All right. So, we are listening to you sir. I am listening. I’m
paying attention to every word that you say, sir.” App. 42-43.
In another example, Serrano-Alberto attempted to
describe the corrupt affiliation between the police and the
gangs, testifying in response to questioning by DHS counsel
that if he had reached out to the police after being released
from the hospital, the gang would have “go[ne] directly to my
house and kill[ed] me,” App. 52. The IJ, however,
spontaneously changed the topic and began berating Serrano-
Alberto for submitting, without more explanation, his
brother’s medical records, i.e., those records corroborating the
brother’s shooting by gang members in 2007. When Serrano-
Alberto then attempted to explain the significance of the
records, the IJ cut him off, stating dismissively: “It does not
provide the cause of the injury, sir. . . . I’ll move on.” App.
53.
At another point, after Serrano-Alberto recounted the
2008 incident where he was shot and hospitalized—testimony
that he corroborated with the submission of his own medical
records—the IJ, instead of inquiring about the shooting,
honed in on the exact length of Serrano-Alberto’s inpatient,
as opposed to outpatient, hospital treatment—a detail of no
particular relevance to his claims. Although Serrano-Alberto
first tried to explain, “I couldn’t tell you how many days
19
because I was several days under anesthesia because of my
wounds and the pain,” the IJ continued aggressively, “So you
were discharged from the hospital when? A week? Two
weeks? A month? Three months? A year,” App. 36, and
Serrano-Alberto eventually acquiesced in providing an
estimate of “[a]pproximately a month,” App. 36—placing his
release in January of 2009.
Later in the hearing, however, the IJ again took up the
issue when she noticed that the medical records Serrano-
Alberto submitted reflected a discharge date of December 7,
2008, with “reference to outpatient for follow-up.” AR 655.
Accusing Serrano-Alberto of intentionally misrepresenting
the length of his inpatient treatment, the IJ charged: “You
testified, sir, that you were admitted at the hospital for a
month. You submitted a document, sir, according to this
document you were admitted . . . . less than what, nine days?
. . . . And after that you were an outpatient. Is this correct?”
App. 55. Serrano-Alberto agreed, but attempted to explain
his continued hospital care (presumably as an outpatient)
because “[w]hat happened was they made me walk and my
wounds bled.” App. 55. Incredulous, the IJ rejoined: “That
wasn’t the, you didn’t answer the question, sir. . . . So which
is correct, your testimony that you were discharged in early
January 2009 or your submission, the written document that
you were discharged on December 7, 2008? One is correct
and one is not correct. Which one is correct and which one is
not correct? There’s no gray area. Which one is correct?”
App. 55. Serrano-Alberto replied, “With all due respect, I
made a mistake. The document is correct.” App. 55. The IJ
promptly announced she was finished with her questioning
and asked Serrano-Alberto whether he wished to add
20
anything else. Not surprisingly after this browbeating, he
responded “[n]o.” App. 55.
The day after the hearing, the IJ issued an oral decision
denying Serrano-Alberto’s application for relief and ordering
his removal to El Salvador. Although Serrano-Alberto’s
testimony was presumptively credible as the IJ rendered no
adverse findings to the contrary, see 8 U.S.C.
§ 1158(b)(1)(B)(iii); Camara, 580 F.3d at 201, she found
“there is no objective evidence whatsoever that the gang
members were targeting him due to his refusal to pay the
rent,” App. 18. Based on that finding and her observation
that the shooters from 2008 and 2012 themselves “did not
give him any indication as to why they were shooting at him,”
App. 18, the IJ concluded that Serrano-Alberto’s fear of
persecution was not objectively reasonable. The IJ also held,
with respect to asylum and withholding of removal, that
Serrano-Alberto did not meet his burden of establishing “that
individuals perceived as wealthy who refuse to pay gang
taxes” constitute a PSG eligible for protection under the INA,
App. 17, or that there was a nexus between his membership in
any PSG and his fear of persecution. As for CAT protection,
the IJ determined Serrano-Alberto failed to show that the
Salvadoran government would consent or acquiesce if a gang
attacked him, finding—again, despite Serrano-Alberto’s
presumptively credible testimony—that the police “repeatedly
attempted to investigate the 2008 shooting.” App. 20.
After retaining counsel, Serrano-Alberto timely
appealed to the BIA, contesting the IJ’s rulings and arguing
the IJ violated his right to due process. The BIA adopted and
affirmed the IJ’s decision, dismissing the appeal. In its
opinion, the BIA assumed, without deciding, that Serrano-
Alberto had established membership in a PSG and/or had
21
established an imputed anti-gang political opinion, but held
that he failed to demonstrate the required nexus—that is, that
any protected ground was a central reason for the harm he
experienced.5 With respect to persecution, the BIA noted,
5
In a number of recent cases, the BIA likewise has
assumed a cognizable PSG or imputed political opinion and
disposed of the appeal by finding no nexus. See, e.g., Bol-
Velasquez v. Att’y Gen., No. 15-3098 (3d Cir. filed Aug. 28,
2015) (ECF Agency Case Docketed); Bell v. Att’y Gen., No.
14-4781 (3d Cir. filed Dec. 18, 2014) (same); Santos v. Att’y
Gen., No. 14-1050 (3d Cir. filed Jan. 8, 2014) (same); Ulloa-
Santos v. Att’y Gen., No. 12-2781 (3d Cir. filed June 25,
2012) (same); Orellana-Garcia v. Att’y Gen., No. 12-2099
(3d Cir. filed Apr. 20, 2012) (same). This practice, however,
can have troubling consequences. First, it places the
analytical cart before the horse in cases like this one, where
the very definition of the PSG is then at issue, for denying
relief based on the absence of a nexus begs the question:
nexus to what? See, e.g., Bol-Velasquez, No. 15-3098. Even
the Attorney General has observed “it would be better
practice for Immigration Judges and the Board to address at
the outset whether the applicant has established persecution
on account of membership in a [PSG], rather than assuming it
as the Board did here. Deciding that issue—and defining the
[PSG] of which the applicant is a part—is fundamental to the
analysis of which party bears the burden of proof and what
the nature of that burden is.” Matter of A-T-, 24 I. & N. Dec.
617, 623 n.7 (U.S. Att’y Gen. 2008). Second, even where the
PSG definition is undisputed—so that the BIA would
certainly have discretion to conclude that the efficiency of
assuming a given PSG weighs in favor of resolution at the
nexus stage—a reflexive practice of simply assuming a PSG
22
first, that it was unclear whether Serrano-Alberto was targeted
in the 2008 and 2012 shootings, and second, that Serrano-
Alberto lived in El Salvador unharmed between 2012 and
2014, undermining the potential relevance of any earlier
has been established and is cognizable does not account for
the very real benefits on the other side of the scale. Just as
the Supreme Court has observed in the qualified immunity
context, adjudication at every step is generally “necessary to
support the Constitution’s ‘elaboration from case to case’ and
to prevent constitutional stagnation” because “[t]he law might
be deprived of this explanation were a court simply to skip
ahead,” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009)
(holding the two-step protocol announced in Saucier v. Katz,
533 U.S. 194 (2001) is no longer mandatory “but often
beneficial”), so here, the BIA’s practice of assuming PSG and
resolving cases on nexus grounds often inhibits the proper
and orderly development of the law in this area by leaving the
contours of protected status undefined, precluding further
appellate review under the Chenery doctrine, see SEC v.
Chenery Corp., 332 U.S. 194 (1947), and ultimately
generating additional needless litigation because of the
uncertainty in this area, see Valdiviezo-Galdamez, 663 F.3d at
594-609; Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993);
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230 (BIA 2014).
This is a case in point, where the IJ articulated the relevant
PSG as “individuals perceived as wealthy who refuse to pay
gang taxes,” App. 17, although other definitions were
reasonable, and the BIA, despite being presented with
alternative formulations, declined to rule on the question
altogether. In sum, for both of the reasons stated, we strongly
encourage IJs and the BIA to define the PSG in question and
to adjudicate the existence and cognizability of that PSG.
23
events. Finally, the BIA summarily affirmed the IJ’s decision
on CAT protection and “disagree[d] with” Serrano-Alberto’s
contention that the IJ did not fully develop the record,
asserting that the IJ had considered the entire record and had
provided Serrano-Alberto with a reasonable opportunity to
present testimony, documents, and arguments, and finding
“no indication that the actions of the [IJ] amount[ed] to a
violation of due process.” App. 13.
The BIA also denied Serrano-Alberto’s subsequent
motion to reopen. That motion reiterated his due process
allegations, and highlighted additional evidence and
testimony that he contended he would have offered if given a
fair opportunity. For example, Serrano-Alberto offered sworn
statements in the accompanying affidavit that when the gang
members called him to collect rent, they “said they knew who
I was because I was a soccer player, and they could track my
movements by looking in the paper or the radio, so they
would easily know where I was going to be playing. . . . I was
afraid, because I knew other soccer players had been
killed,”—statements suggesting that Serrano-Alberto’s
position as a soccer player placed him prominently on the
gangs’ radar and thus supporting his claim of membership in
a PSG. App. 70. With respect to the gang’s asserted reason
for targeting him, Serrano-Alberto explained that his “soccer
organization was explicitly opposed to gangs,” and that he
“would talk to the young men in [his] neighborhood about
how they could play soccer too, and then they wouldn’t need
to be involved in any bad activities.” App. 69. And finally,
relevant to his claim for protection under the CAT, Serrano-
Alberto attested to having “problems with the police,”
explaining that they often harassed and searched him, that in
2009 they “were threatening [him],” and that sometimes they
24
would stop him and “push [him] up against the wall, or hit or
kick [him].” App. 71. He described one incident where
officers hit him in the chest, held his head up so they could
take a picture of him, laughed and made fun of his soccer
team, made sarcastic comments, and used vulgar language
before releasing him. App. 71.
C. Serrano-Alberto’s Due Process Claim
Serrano-Alberto now argues to this Court, as he did
before the BIA on direct appeal and in his motion to reopen,
that the IJ’s conduct of the removal hearing violated his right
to procedural due process.6
While in the vast majority of cases, IJs diligently
comport with their constitutional and statutory obligations,
and while it is only on rare occasion that we have held an IJ’s
conduct crosses the line, the record here compels us to
conclude this is one of those rare cases. Because we reach
this conclusion against the backdrop of the three main cases
to date in which we have distinguished between permissible
6
Serrano-Alberto also argued on appeal that the new
evidence he presented in support of his motion to reopen
could not have been presented previously, that this evidence
demonstrates he was prejudiced by the due process violations
at his removal hearing, that his expert testimony submitted in
support of reopening makes a prima facie showing of his
eligibility for relief, that he can establish persecution based on
political opinion or membership in a PSG, and that the BIA
failed to address Serrano-Alberto’s eligibility for CAT
protection in its opinion denying his motion to reopen. For
the reasons set forth below, we need not reach these claims.
See infra n.9.
25
and impermissible IJ conduct under the Due Process Clause,
we will review each of those cases before addressing Serrano-
Alberto’s claims for relief.
First, in Wang v. Attorney General, 423 F.3d 260 (3d
Cir. 2005), we held the petitioner did not receive due process
where the IJ employed a disparaging and sarcastic tone
throughout the petitioner’s removal hearing and expressed
great disapproval of aspects of the petitioner’s personal life
that were irrelevant to his claims, id. at 263-65. Among other
things, the IJ repeatedly badgered the petitioner for paying a
smuggler to help him abscond from China to the United
States and pointed out that the petitioner had hired an
immigration attorney and wore a suit and tie to court,
assuming for these reasons that the petitioner must have
significant financial resources. Id. at 263-64. The IJ also
berated him for failing to pay a penalty levied against his
parents in China for his wife’s illegal second child, despite no
evidence in the record that the petitioner had sufficient funds
to do so at his disposal, id. at 263, and inexplicably chastised
the petitioner in a derisive tone on the extent of his
commitment to his disabled daughter in China, stating, for
example, “Have you ever had medical records about your
darling first child Ming Wang brought to the United States of
America? Yes or no. . . . Well why don’t you have any
medical records here to prove to me that you care enough
about your daughter to have asked the doctor here about her
welfare?” Id. at 264.
Based on such comments, we concluded that the IJ’s
conduct in that case evinced bias against the petitioner, id. at
269-71, that “many of the issues addressed by the IJ at length
. . . were irrelevant to” the petitioner’s claims for relief, id. at
269, and that “[w]hile the IJ explicitly deemed her broad
26
character judgments relevant to her decision, they were not,”
id. at 270. We therefore granted the petition for review,
explaining that the IJ’s opinion was grossly insufficient to
support her adverse credibility finding and that her “conduct
so tainted the proceedings below that we [could not] be
confident that [the petitioner] was afforded the opportunity
fully to develop the factual predicates of his claim.” Id. at
271. We also expressed our “sore[] disappoint[ment] that the
IJ . . . chose to attack [the petitioner’s] moral character rather
than conduct a fair and impartial inquiry into his asylum
claims,” and we described “[t]he tone, the tenor, the
disparagement, and the sarcasm of the IJ” as “more
appropriate to a court television show than a federal court
proceeding.” Id. at 269.
Similarly, one year later, in Cham v. Attorney General,
445 F.3d 683 (3d Cir. 2006), we held due process was
violated by an IJ who “continually abused an increasingly
distraught petitioner, . . . wholesale nitpick[ed] . . . with an
eye towards finding inconsistencies and contradictions,” and
denied that petitioner the opportunity to present testimony
from critical witnesses who were only available on dates after
the hearing, id. at 691-93. The numerous belligerent
statements by the IJ included: “I don’t want you speaking
English. I gave you the opportunity and you flubbed the
opportunity. You were tripping all over the words in English.
Your English is not that good . . . . You’re just delaying
everything here. . . . Would you stop with the sorry. Just give
me an answer. . . . Now, you better come up with an answer
pretty quickly or I’ll find that you’re non-responsive.” Id. at
688. After reviewing the record, we concluded the IJ’s
hostility infected the hearing and vitiated his adverse
27
credibility determination, and we vacated and remanded for
rehearing. Id. at 694.
Although the Government in Cham contended that,
regardless of the IJ’s conduct, the petitioner’s application did
not merit relief, we explained, “The issue here . . . ‘is not
whether the evidence as it stands supports the result reached
by the immigration judge and the BIA,’ but instead ‘is
whether the original deportation hearing was conducted in a
fair enough fashion for one to determine that the BIA’s
decision was based on reasonable, substantial, and probative
evidence.’” Id. at 693 (quoting Podio v. INS, 153 F.3d 506,
509 (7th Cir. 1998)). It was sufficient, we explained, that the
IJ’s conduct “had the potential for affecting the outcome” of
the proceedings, id. at 694 (quoting Shahandeh-Pey, 831 F.2d
at 1389), and we concluded the “brow beaten” petitioner,
verbally abused and deprived of the opportunity to present
testimony essential to his case, deserved “a second, and a real,
chance to create a record in a deportation hearing that
28
comports with the requirements of due process,” id. (internal
quotation marks omitted).7
In contrast, in Abdulrahman v. Ashcroft, 330 F.3d 587
(3d Cir. 2003), although we acknowledged “the language
7
In at least three additional cases, we determined the
IJ’s adverse credibility findings to be unsupported by
substantial evidence, remanding for rehearing and urging the
reassignment of a different IJ. See Sukwanputra v. Gonzales,
434 F.3d 627, 637-38 (3d Cir. 2006); Shah v. Att’y Gen., 446
F.3d 429, 430, 437 (3d Cir. 2006); Fiadjoe v. Att’y Gen., 411
F.3d 135, 155, 163 (3d Cir. 2005). Although not decided on
constitutional grounds, the due process implications in each
case are obvious and noteworthy. See Sukwanputra, 434 F.3d
at 638 (“[E]ven if the IJ was not actually biased—and we do
not speculate here as to h[is] state of mind—the mere
appearance of bias on h[is] part could still diminish the
stature of the judicial process []he represents. As stated by
the Supreme Court, ‘justice must satisfy the appearance of
justice.’” (quoting Offutt v. United States, 348 U.S. 11, 13
(1954)) (additional internal citation and quotations marks
omitted)); Shah, 446 F.3d at 437 (“Although we don’t expect
an Immigration Judge to search for ways to sustain an alien’s
testimony, neither do we expect the judge to search for ways
to undermine and belittle it.” (quoting Zhang v. Gonzales, 406
F.3d 150, 158 (3d Cir. 2005) (McKee, J., concurring));
Fiadjoe, 411 F.3d at 155 (“The conduct of the IJ by itself
would require a rejection of his credibility finding.”); see also
Myrie v. Att’y Gen., 855 F.3d 509, 511, 518 (3d Cir. 2017)
(remanding on alternative grounds but expressing due process
concerns with the IJ’s conduct and urging reassignment on
remand).
29
used by the IJ during the hearing and in her opinion [did]
reflect an annoyance and dissatisfaction with [the petitioner’s]
testimony that [was] far from commendable,” we held that
this palpable “lack of courtesy” did not, without more, violate
his due process rights, id. at 597. Critical to our conclusion
was our determination that the IJ “did not obstruct or
denigrate [the petitioner’s] . . . testimony” and “interjected
only to allow [the petitioner] to clarify inconsistent responses
or to give him the opportunity to respond in further detail.”
Id. Even though “her commentary was not confined to the
evidence in the record and smacked of impermissible
conjecture,” id. at 598, we determined the IJ’s findings and
credibility determination were “supported by substantial
evidence,” and thus her conclusions were “reasonable,” id. at
599.
What these cases teach us is that, where a petitioner
claims to have been deprived of the opportunity to “make
arguments on his or her own behalf,” Dia, 353 F.3d at 239,
there is a spectrum of troubling conduct that is fact-specific
and must be evaluated on a case-by-case basis to determine if
(1) the petitioner “was prevented from reasonably presenting
his case[,] and (2) . . . substantial prejudice resulted,” Fadiga,
488 F.3d at 155 (internal quotation marks omitted). At one
end of the spectrum, the “lack of courtesy,” “interject[ions]”
to clarify and develop the record, and “annoyance and
dissatisfaction with . . . testimony” in Abdulrahman, 330 F.3d
at 597, were not sufficient to establish a due process claim.
At the other end, the “contemptuous tone,” focus on “issues
irrelevant to” the petitioner’s claims, and findings
unsupported by the record in Wang, 423 F.3d at 270, and the
“wholesale nitpicking,” “continual[] abuse[]” and
“belligerence,” and “interrupt[ions] . . . preventing important
30
parts of [the petitioner’s] story from becoming a part of the
record,” in Cham, 445 F.3d at 691, 694, were flagrant enough
to violate due process. Where these component parts of an
IJ’s conduct are sufficiently egregious, at least in
combination, a petitioner’s procedural due process rights are
violated.
In Serrano-Alberto’s case, we conclude the IJ’s
conduct falls on the impermissible end of the spectrum.
Indeed, the IJ’s conduct here shares many of the attributes of
the conduct we found unconstitutional in Wang and Cham,
including a hostile and demeaning tone, a focus on issues
irrelevant to the merits, brow beating, and continual
interruptions. See supra Sec. III.B. And in contrast to
Abdulrahman where the interruptions assisted the petitioner
in answering questions and appropriately refocused the
hearing, 330 F.3d at 596-98, the IJ’s interruptions here
repeatedly shut down productive questioning and focused
instead on irrelevant details, see supra Sec. III.B.
Also in contrast to Abdulrahman, the IJ’s most critical
findings and conclusions were not “reasonable” and
“supported by substantial evidence,” 330 F.3d at 599, but
rather were directly contradicted by the record and otherwise
inexplicable. Serrano-Alberto had testified that he was shot
in 2008 shortly after refusing to continue making rent
payments to the gang (corroborated by medical records, AR
655, 663), that “when I was detained, the gang members
found [my brother] to ask him about me . . . . [telling] him
that if they couldn’t find me, that they were going to kill him
and so they shot him and almost took his life,” App. 53
(testimony also corroborated by medical records, AR 614-15),
that he was the sole target of another shooting in 2012—
immediately after he was released from prison, and that “my
31
mother and my brother told me that [gang members] were
asking for me [in 2013] . . . . and . . . they were going to find
me because their intention was to kill me,” App. 46. Yet, the
IJ, without making any adverse credibility determination,
found that “nothing in the record suggests that [Serrano-
Alberto] was the intended victim of the 2008 shooting . . . .
[and] [t]he 2012 attack is similar,” App. 18, and, remarkably,
rested her conclusion that Serrano-Alberto’s fear of
persecution was not objectively reasonable on her observation
that the drive-by shooters in 2008 and 2012 did not stop to
tell him the reason “why they were shooting at him,” App. 18.
Just as remarkably, the BIA summarily stated: “The
Immigration Judge correctly noted that the respondent has not
shown that gang members or any other individuals or groups
have any interest in him, or that he was the intended target in
2008 or 2012.” App. 12.
Likewise, despite Serrano-Alberto’s testimony, “I
couldn’t [report the 2008 shooting] because the police is
associated with the gang . . . . If I went and reported them, I
knew that they will go directly to my house and kill me,”
App. 51-52, and his sworn statement in his credible fear
interview that police officers give information to gangs, App.
170, the IJ found that “[t]his record . . . does not establish that
the . . . government would exercise willful blindness with
respect to any hypothetical torture respondent might
experience,” App. 20, and the BIA simply “agree[d] with the
Immigration Judge’s conclusion that the respondent did not
meet his burden to establish eligibility for protection under
the CAT,” App. 13.
All told, although the IJ neither denied a request from
Serrano-Alberto to submit evidence, as in Cham, 445 F.3d at
691-93, nor belittled him for his life choices, as in Wang, 423
32
F.3d 263-65, the pervasiveness and egregiousness of the other
problematic conduct here—the IJ’s interrupting and cabining
Serrano-Alberto to “yes or no” answers during critical
testimony, honing in on various and sundry irrelevant details,
making findings contradicted by the record, and maintaining a
condescending and belligerent tone throughout the hearing,
see supra Sec. III.B—evinced bias and created an intolerable
atmosphere of intimidation. Combined with the IJ’s lack of
familiarity with the written record and failure to develop the
record,8 the IJ’s conduct deprived Serrano-Alberto of “a full
and fair hearing [with] . . . a reasonable opportunity to present
evidence on [his] behalf,” Abdulrahman, 330 F.3d at 596
8
To be clear, we do not hold today that due process
imposes on an IJ an affirmative obligation to develop the
record or to gain a particular level of familiarity with a
petitioner’s case before presiding over her hearing. Like the
Second Circuit, which has recognized the relevance of failure
to develop the record to determining whether substantial
evidence supports an IJ’s decision, see Yang v. McElroy, 277
F.3d 158, 162 (2d Cir. 2002), we have held previously that
failure to develop the record is a relevant consideration in
such circumstances as evaluating whether an IJ’s adverse
credibility determination is supported by substantial evidence,
see Senathirajah v. I.N.S., 157 F.3d 210, 220 (3d Cir. 1998),
or whether the IJ has given the petitioner a fair opportunity to
provide corroborating documentation, see Toure v. Att’y Gen.,
443 F.3d 310, 325 (3d Cir. 2006). Although the Eighth and
Ninth Circuits have suggested that an IJ may be
constitutionally obligated to develop the record under the Due
Process Clause, see Al Khouri v. Ashcroft, 362 F.3d 461, 465
(8th Cir. 2004); Agyeman v. I.N.S., 296 F.3d 871, 877 (9th
Cir. 2002), we have not so held and do not go so far today.
33
(internal quotation marks omitted), and most certainly had
“the potential for affecting the outcome of [the] deportation
proceedings,” Cham, 445 F.3d at 694 (quoting Shahandeh-
Pey, 831 F.2d at 1389). In short, as in Cham and Wang, the
IJ’s conduct here “so tainted the proceedings below that we
cannot be confident that [Serrano-Alberto] was afforded the
opportunity fully to develop the factual predicates of his
claim,” Wang, 423 F.3d at 271; see Cham, 445 F.3d at 694.
Strikingly, the Government, instead of engaging
Serrano-Alberto’s due process argument, dedicated a mere
two pages of its brief to the issue. And while the Government
acknowledged at oral argument that there were instances
“where the Immigration Judge stop[ped] him short when he
[was] beginning to answer a question,” Oral Arg. 39:36-41, it
attempted to explain those instances away as “something
getting lost in translation or something not necessarily being
understood the first time around,” Oral Arg. 39:47-52,
arguing that “the fact that she became frustrated or a little bit
annoyed that she wasn’t getting direct answers from the
petitioner isn’t reason in and of itself to send this case back as
a result of a due process violation,” Oral Arg. 40:14-27. That
explanation falls flat given the nature, number, and effect of
the IJ’s interruptions. See supra Sec. III.B.
We are also unmoved by the Government’s suggestion
that any errors by the IJ were cured because Serrano-Alberto
“had an opportunity to file a motion to reopen to submit all
this additional evidence.” Oral Arg. 40:35-39. That
argument is precisely the one we rejected in Cham, where we
explained “[t]he issue . . . ‘is not whether the evidence as it
stands supports the result reached by the immigration judge
and the BIA,’ but instead ‘is whether the original deportation
hearing was conducted in a fair enough fashion for one to
34
determine that the BIA’s decision was based on reasonable,
substantial, and probative evidence.’” 445 F.3d at 693
(quoting Podio, 153 F.3d at 509).9
In sum, we have no occasion to address the merits of
Serrano-Alberto’s application for asylum, withholding of
removal, and CAT protection because we conclude Serrano-
Alberto is entitled to present his case anew and will grant his
petition for review. We also urge the BIA, upon its further
remand, to reassign this matter to a new IJ. As the BIA itself
has recognized, “Conduct by an Immigration Judge that can
be perceived as bullying or hostile can have a chilling effect
9
Indeed, if anything, Serrano-Alberto’s motion to
reopen before the BIA would appear to reinforce the
conclusion that the IJ’s interference in Serrano-Alberto’s
presentation of his case had “the potential for affecting the
outcome of [the] deportation proceedings,” Cham, 445 F.3d at
694 (quoting Shahandeh-Pey, 831 F.2d at 1389), in view of
the proof it proffered in support of Serrano-Alberto’s claims
for relief, see, e.g., App. 69-71. Given our disposition of
Serrano-Alberto’s due process claim, however, we need not
reach the question whether this motion was denied in error.
Instead, Serrano-Alberto’s petition for review of that order
will be denied as moot because the IJ assigned on remand
from the BIA will have jurisdiction to consider “any and all
matters which [he] deems appropriate in the exercise of his
administrative discretion or which are brought to his attention
in compliance with the appropriate regulations,” Johnson, 286
F.3d at 701 (quoting Matter of Patel, 16 I. & N. Dec. 600,
601 (BIA 1978)), including the evidence incorporated into
Serrano-Alberto’s motion to reopen, see Matter of Y-S-L-C,
26 I. & N. Dec. at 691.
35
on a respondent’s testimony and thereby limit his or her
ability to fully develop the facts of the claim,” Matter of Y-S-
L-C-, 26 I. & N. Dec. at 690, and when this type of “belittling
. . . and insensitive” conduct occurs, id. at 691, it is
“appropriate to . . . remand . . . for a new hearing before a
different Immigration Judge,” id. Such was the case in both
Wang and Cham, where we urged reassignment in view of the
due process violations we identified in those cases, see Wang,
423 F.3d at 271; Cham, 445 F.3d at 694; see also Myrie, 855
F.3d at 511, 518. And such is undoubtedly the case here as
well.
IV. Conclusion
For the foregoing reasons, we will grant Serrano-
Alberto’s petition for review of the BIA’s order denying his
applications for asylum, withholding of removal, and
protection under CAT, vacate that order, and remand to the
BIA for proceedings consistent with this opinion. We will
also deny as moot Serrano-Alberto’s petition for review of the
BIA’s denial of his motion to reopen.
36