Argued: October 25, 2016
Petition for Review of Orders of the Board of Immigration
Appeals (BIA No. A206-801-902) Immigration Judge: Honorable
Zachary Nightingale, Esq. [ARGUED] Alisa R. Whitfield, Esq.
Van Der Hout Brigagliano & Nightingale Counsel for
W. Hussey, Esq. Lindsay M. Murphy, Esq. [ARGUED] Song E.
Park, Esq. United States Department of Justice Counsel for
Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges
KRAUSE, Circuit Judge.
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 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.
Factual and Procedural
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 soccer league,
garnering significant attention as a result of his success.
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.
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.
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, 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.
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
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
membership in an unspecified particular social group
(PSG).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.
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
Jurisdiction and Standard of Review
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
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).
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.
A. Legal Standards Governing Serrano- Alberto's
Due Process Claims and Underlying Claims for Relief
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 ...