Ever Serrano-Alberto v. Attorney General United States
2017 U.S. App. LEXIS 10414, 859 F.3d 208, 2017 WL 2628019 (2017)
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Rule of Law:
An Immigration Judge's hostile, demeaning, and interruptive conduct violates an alien's Fifth Amendment right to due process when it prevents the alien from reasonably presenting their case for relief and creates a potential for affecting the outcome of the proceedings.
Facts:
- Ever Ulises Serrano-Alberto was a high-profile professional soccer player in his native country of El Salvador.
- In 2007, suspected members of the MS13 gang shot and paralyzed Serrano-Alberto's brother, Edwin.
- In 2008, MS13 began extorting Serrano-Alberto for money. After he refused to continue payments, three suspected gang members shot him and his nephew, killing a neighbor in the same attack.
- Police visited Serrano-Alberto in the hospital but refused to take a report because he did not know the shooters' names and never conducted an investigation.
- While Serrano-Alberto was imprisoned on unrelated charges of which he was later acquitted, gang members shot another of his brothers who refused to reveal his whereabouts.
- Immediately after his release from prison in 2012, unknown assailants on a motorcycle targeted Serrano-Alberto in another shooting, which he narrowly escaped.
- Serrano-Alberto moved multiple times to evade MS13, but his mother warned him that the gang was still pursuing him with the intent to kill him.
- In 2014, after observing what he believed to be gang members in his new neighborhood, Serrano-Alberto fled to the United States.
Procedural Posture:
- Ever Ulises Serrano-Alberto was apprehended by the Department of Homeland Security Border Patrol in Texas in July 2014.
- In December 2014, he applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- An Immigration Judge (IJ) conducted a removal hearing and issued an oral decision ordering Serrano-Alberto's removal to El Salvador.
- Serrano-Alberto, as appellant, appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- The BIA adopted and affirmed the IJ’s decision, dismissing the appeal.
- Serrano-Alberto then filed a motion to reopen his case with the BIA, which the BIA summarily denied.
- Serrano-Alberto, as petitioner, petitioned the U.S. Court of Appeals for the Third Circuit for review of both the BIA's affirmance of the removal order and its denial of his motion to reopen.
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Issue:
Does an Immigration Judge's hostile, demeaning, and interruptive conduct, which prevents a petitioner from fully developing the factual predicates of their asylum claim, violate the petitioner's Fifth Amendment right to due process?
Opinions:
Majority - Krause, Circuit Judge.
Yes, the Immigration Judge's conduct violated the petitioner's Fifth Amendment right to due process. The IJ's behavior prevented Serrano-Alberto from having a meaningful opportunity to be heard, which is a fundamental requirement of due process. The court found the IJ's conduct fell on the impermissible end of the spectrum of judicial behavior, characterized by a hostile and demeaning tone, constant interruptions, browbeating, and a focus on irrelevant details while ignoring crucial elements of the claim. Unlike permissible interjections meant to clarify testimony, as seen in Abdulrahman v. Ashcroft, the IJ's interruptions here actively shut down productive lines of testimony and forced Serrano-Alberto into 'yes or no' answers on complex issues, such as government acquiescence to gang violence. The court concluded this conduct, combined with the IJ's unfamiliarity with the written record and findings that were directly contradicted by presumptively credible testimony, 'so tainted the proceedings' that the court could not be confident Serrano-Alberto was afforded a fair opportunity to develop the facts of his case, establishing substantial prejudice.
Analysis:
This case clarifies the boundary between a merely discourteous or impatient Immigration Judge and one whose conduct amounts to a constitutional due process violation. The decision reinforces that the fundamental fairness of the hearing process itself is paramount, and a proceeding tainted by judicial bias or hostility requires remand regardless of the potential merits of the underlying claim. This precedent strengthens protections for pro se petitioners in immigration court, signaling to the Board of Immigration Appeals (BIA) and lower courts that an IJ's procedural conduct will be subject to rigorous review. It emphasizes that a petitioner's opportunity to fully present their case cannot be obstructed by judicial impatience, hostility, or a focus on immaterial inconsistencies.
