Pangilinan v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR LACSINA PANGILINAN, 
Petitioner, No. 07-73603
v.
 Agency No.
A044-207-910
ERIC H. HOLDER Jr., Attorney
General,
Respondent.

EDGAR LACSINA PANGILINAN, 
Petitioner, No. 08-71274
v.
 Agency No.
A044-207-910
ERIC H. HOLDER Jr., Attorney
General, ORDER
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted
April 13, 2009—San Francisco, California
Filed June 1, 2009
Before: Stephen Reinhardt, John T. Noonan and
M. Margaret McKeown, Circuit Judges.
COUNSEL
Leon Fresco, Lydia Edwards, Christopher Nugent, Miami,
Florida, for the petitioner.
6451
6452 PANGILINAN v. HOLDER
Gregory G. Catsas, Daniel E. Goldman, Jem C. Sponzo,
Washington, D.C. for the respondent.
ORDER
Edgar Lacsina Pangilinan, a native and citizen of the Phil-
ippines, petitions for review of two decisions of the Board of
Immigration Appeals (“BIA”): one affirming an immigration
judge’s (“IJ”) denial of an application for asylum, withhold-
ing of removal, and protection under the Convention Against
Torture (“CAT”), and another denying a motion to reopen.
Although not subject to the full range of constitutional pro-
tections, immigration proceedings must conform to the Fifth
Amendment’s due process requirement. Salgado-Diaz v. Gon-
zales, 395 F.3d 1158, 1162 (9th Cir. 2005). A due process
violation occurs where “(1) the proceeding was so fundamen-
tally unfair that the alien was prevented from reasonably pre-
senting his case, and (2) the alien demonstrates prejudice,
which means that the outcome of the proceeding may have
been affected by the alleged violation.” Ibarra-Flores v. Gon-
zales, 439 F.3d 614, 620-21 (9th Cir. 2006) (internal quota-
tion marks and citations omitted). “Because aliens appearing
pro se often lack the legal knowledge to navigate their way
successfully through the morass of immigration law, and
because their failure to do so successfully might result in their
expulsion from this country, it is critical that the IJ ‘scrupu-
lously and conscientiously probe into, inquire of, and explore
for all the relevant facts.’ ” Agyeman v. INS, 296 F.3d 871,
877 (9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725,
728 (9th Cir. 2000)). An IJ cannot correct his failure to probe
more deeply by simply asking the alien whether he has “any-
thing to add in support of his claim.” Colmenar v. INS, 210
F.3d 967, 972 (9th Cir. 2000). The IJ’s obligation is founded
on his statutory duty to “administer oaths, receive evidence,
and interrogate, examine, and cross-examine the alien and any
witnesses.” 8 U.S.C.A. § 1229a(b)(1).
PANGILINAN v. HOLDER 6453
Here, the immigration judge, who went to some length to
ensure the fairness of the preliminary proceedings, inexplica-
bly delegated his duties to develop this unrepresented peti-
tioner’s case to the attorney for the government. The result
was to impose an unfair conflict of interest on the government
and prejudicially to deprive petitioner of development of the
record.
Accordingly, we GRANT the petition and REMAND for a
new hearing before the immigration judge.
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