Ever Serrano-Alberto v. Attorney General United States

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.

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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.

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