United States v. Daniel Rivera, 702 F. App'x 547

Rivera, detained and pro se, faced removal and had a pending affirmative asylum application filed >5 years earlier that had not been adjudicated.
At the removal hearing Rivera told the IJ about the pending application and expressed a desire to remain (asked for lower bond, asked what he could do, said he wanted to appeal).
The IJ never asked Rivera if he wanted the existing application adjudicated, never offered to adjudicate it, and did not inform him that an asylum application filed in removal proceedings would be processed more quickly than an affirmative filing.
The IJ asked only whether Rivera wanted to file a new application; Rivera declined to file a new application and the IJ ordered him removed.
The government conceded Rivera was plausibly eligible for withholding of removal and CAT relief at the time of the underlying proceeding.
Rivera was later indicted for illegal reentry under 8 U.S.C. § 1326; he moved to dismiss under § 1326(d) arguing the underlying removal was fundamentally unfair because of due process defects.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ’s failure to inform/adjudicate pending asylum application violated due process	IJ failed to inform/adjudicate; pro se status increased IJ’s duty to explain relief avenues	IJ asked about applying and Rivera declined; he wanted deportation, so no due process violation	Court: Yes. IJ’s omissions violated due process given Rivera’s pro se status and confusion
Whether the due process defect caused prejudice such that the removal order was fundamentally unfair under § 1326(d)	Rivera reasonably feared delay and would have sought relief if IJ had adjudicated or explained timing; thus he suffered prejudice	Government contended Rivera chose not to apply and did not show he was deterred by fear of delay	Court: Yes. The defect caused Rivera not to seek relief he was plausibly eligible for; indictment must be dismissed

United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (IJ must inform alien of ability to apply for relief; failure is denial of due process)
Agyeman v. I.N.S., 296 F.3d 871 (9th Cir. 2002) (IJ must adequately explain hearing procedures; duties heightened for pro se noncitizens)
United States v. Cisneros-Rodriguez, 813 F.3d 748 (9th Cir. 2015) (removal order is fundamentally unfair if due process violation caused prejudice)
United States v. Melendez-Castro, 671 F.3d 950 (9th Cir. 2012) (IJ must make alien aware of right to seek relief and opportunity to apply)