FILED
NOT FOR PUBLICATION SEP 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARSHAN SINGH, No. 08-70993
Petitioner, Agency No. A098-152-538
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and submitted August 10, 2012
San Francisco, California
Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON, Senior
District Judge.**
Darshan Singh, a native and citizen of India, petitions for review of the
denial of his asylum application on the basis that he lacked credibility. The
Immigration Judge (“IJ”), after agreeing to continue redirect examination to a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
future date, issued her decision prior to that date. Because the IJ’s premature
decision denied Mr. Singh due process of law, we vacate the decision by the Board
of Immigration Appeal (“BIA”) and remand this case to the BIA to allow Mr.
Singh redirect examination.1
1. Although a petitioner must exhaust his administrative remedies, see U. S.
C. § 1252(d)(1), we have held that “we do not employ the exhaustion in a
formalistic manner,” and require that the petitioner has put the BIA on notice as to
the specific issues so that it has an opportunity to pass on those issues. Figueroa v.
Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). Despite respondent’s argument to the
contrary, we find that Mr. Singh adequately presented his due process argument to
the BIA.
2. “Claims of due process violations in deportation proceedings are
reviewed de novo.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (citing
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). In Ibarra-Flores, we
reiterated our holding in Colmenar that “an alien who faces deportation is entitled
to a full and fair hearing of his claims and a reasonable opportunity to present
evidence on his behalf.” Id. Accordingly, the BIA’s decision “will be reversed on
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2
due process grounds if (1) the proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his case, . . . and (2) the alien
demonstrates prejudice, which means that the outcome of the proceeding may have
been affected by the alleged violations.” Id. at 620-21 (internal quotation marks
and citation omitted).
Here, despite respondent’s counsel’s insistence at oral argument to the
contrary, we determine that the IJ’s premature decision denied Mr. Singh “a full
and fair hearing on his claims and a reasonable opportunity to present evidence on
his behalf.” See Colmenar, 210 F.3d at 971. The IJ’s offer to continue redirect
examination to a later date may have been based on Mr. Singh’s need for time to
respond to the respondent’s assertions concerning Mr. Singh’s actions when he
served in the Indian Army in Sri Lanka. However, the IJ did not hear redirect at
the hearing and set all redirect over to the continued date. The IJ’s issuance of a
decision before Mr. Singh had an opportunity to present evidence and testimony on
redirect was fundamentally unfair and prevented him from reasonably presenting
his case.
Furthermore, the premature decision was prejudicial because a number of
the reasons given by the IJ for finding that Mr. Singh was not credible might well
have changed had Mr. Singh had the opportunity to present testimony on redirect.
3
For example, Mr. Singh might have explained his confusion concerning questions
pertaining to whether the terrorists who kidnaped him also sought to recruit him,
and that his brother-in-law is also his friend. On this record the outcome of the
proceedings may be affected by Mr. Singh’s testimony and the evidence on
redirect examination. See Ibarra-Flores, 439 F.3d at 621.
The petition is GRANTED, the Board of Immigration Appeal’s decision is
VACATED, and this case is REMANDED for further proceedings.
4