Ever Serrano-Alberto v. Attorney General United States
2017 U.S. App. LEXIS 10414
| 3rd Cir. | 2017Background
- Ever Ulises Serrano-Alberto, a former professional soccer player from El Salvador, was shot and extorted by MS13, suffered family members’ injuries, and fled to the U.S., applying for asylum, withholding of removal, and CAT protection.
- Administrative record included an I-589, a DHS credible-fear worksheet, medical records, news articles, affidavits, and a 2012 acquittal; IJ hearing occurred pro se via videoconference with interpreter.
- At the removal hearing, the IJ repeatedly interrupted, demanded "yes/no" answers, focused on immaterial inconsistencies, displayed a hostile tone, and demonstrated limited familiarity with the record.
- The IJ denied relief (finding fear not objectively reasonable, no cognizable nexus to a protected ground, and insufficient government acquiescence for CAT), and the BIA affirmed and later denied a motion to reopen in a short opinion.
- Serrano-Alberto petitioned for review in the Third Circuit, arguing violation of procedural due process for being prevented from reasonably presenting his case; after review the Court granted the petition, vacated and remanded for rehearing and urged reassignment to a different IJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s conduct violated due process by preventing petitioner from reasonably presenting his case | IJ’s interruptions, hostile tone, limiting answers to yes/no, focus on immaterial details and lack of record development prevented meaningful opportunity to be heard and likely affected outcome | Interruptions were minor, due to translation/clarification difficulties, and any error could be remedied by motion to reopen | Court: IJ’s conduct was sufficiently egregious to deny due process; petition granted, decision vacated, remanded for new hearing and reassignment urged |
| Whether the IJ’s factual findings (targeting, police collusion) were supported by record | Serrano-Alberto pointed to testimony and corroborating documents showing gang targeting and police collusion or acquiescence | IJ and BIA found lack of objective evidence showing he was targeted and that government would acquiesce to torture | Court: IJ’s critical findings were contradicted by the record and undermined by the hearing conduct; remand required without resolving merits |
| Whether BIA’s practice of assuming a particular social group (PSG) but deciding on nexus is acceptable | Serrano-Alberto argued PSG should be defined and considered as part of the merits | Government/BIA often assume PSG and resolve on nexus for efficiency | Court: Encouraged IJs/BIA to define PSGs and adjudicate cognizability rather than reflexively assume them; did not decide PSG here due to remand |
| Whether denial of motion to reopen should stand | Serrano-Alberto argued motion proffered additional evidence he would have presented absent IJ’s conduct | Government argued motion to reopen available remedy and no constitutional violation requiring reversal | Court: Declined to decide motion-to-reopen merits; petition as to that denial denied as moot because remand permits consideration of that evidence by new IJ |
Key Cases Cited
- Wang v. Attorney General, 423 F.3d 260 (3d Cir. 2005) (IJ’s sarcastic, disparaging conduct can infect proceeding and violate due process)
- Cham v. Attorney General, 445 F.3d 683 (3d Cir. 2006) (repeated abuse, nitpicking, and preventing witness testimony can require remand for rehearing)
- Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003) (discourteous or impatient questioning alone does not necessarily violate due process if record development is adequate)
- Fadiga v. Attorney General, 488 F.3d 142 (3d Cir. 2007) (framework for procedural due process claim: prevented from reasonably presenting case and resulting substantial prejudice)
- Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (due process guarantees meaningful opportunity to be heard; three-feature test for deportation hearings)
- Camara v. Attorney General, 580 F.3d 196 (3d Cir. 2009) (appellate review obligations when BIA adopts IJ’s reasoning)