859 F.3d 208 (3rd Cir. 2017), 15-3146, Serrano-Alberto v. Attorney General United States

Docket Nº:15-3146, 16-1586
Citation:859 F.3d 208
Opinion Judge:KRAUSE, Circuit Judge.
Attorney:Zachary Nightingale, Esq. [ARGUED], Alisa R. Whitfield, Esq., Van Der Hout Brigagliano & Nightingale, San Francisco, CA, 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, Was...
Judge Panel:Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges.
Case Date:June 12, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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859 F.3d 208 (3rd Cir. 2017)




Nos. 15-3146, 16-1586

United States Court of Appeals, Third Circuit

June 12, 2017

Argued October 25, 2016

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[Copyrighted Material Omitted]

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On Petition for Review of Orders of the Board of Immigration Appeals. (BIA No. A206-801-902). Immigration Judge: Honorable Mirlande Tadal.

Zachary Nightingale, Esq. [ARGUED], Alisa R. Whitfield, Esq., Van Der Hout Brigagliano & Nightingale, San Francisco, CA, 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, Washington, DC, Counsel for Respondent.

Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges.

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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 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 Background [1]

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 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

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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, 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 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 IJ's decision directly. En Hui Huang v. AG of the United States, 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

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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. AG of the United States, 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.

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, 96 S.Ct. 893, 47 L.Ed.2d 18 (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...

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