## Facts

- Ever Ulises Serrano-Alberto, a citizen of El Salvador and professional soccer player, alleged he was targeted by MS-13 due to his public profile and perceived access to money.
- In approximately 2007, suspected MS-13 members shot his brother, leaving him paralyzed.
- In 2008, MS-13 extorted Serrano-Alberto under threats of death; after he refused further payments, suspected gang members shot him, his nephew, and a neighbor, killing the neighbor and seriously injuring Serrano-Alberto and his nephew.
- When he sought police help, officers declined to take a report because he could not identify the shooters by name.
- He attempted to flee through Mexico twice but was returned.
- Between 2009 and 2012, he was imprisoned in El Salvador on extortion charges and later absolved; during and after that period, gang members continued to seek him out and later shot another brother when he refused to reveal Serrano-Alberto’s location.
- In 2012, Serrano-Alberto narrowly avoided injury in a drive-by shooting and moved repeatedly to evade gang members.
- In 2014, he entered the United States, was apprehended at the border, placed in removal proceedings, and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- At the merits hearing, the Immigration Judge (IJ) repeatedly interrupted, belittled, and cut off Serrano-Alberto’s testimony, focused on immaterial inconsistencies and irrelevant details, and created an intimidating hearing environment.
- The IJ denied relief and ordered removal; the Board of Immigration Appeals (BIA) affirmed and summarily denied a motion to reopen alleging denial of a full and fair hearing.

## Issues

1. Whether the IJ’s conduct denied Serrano-Alberto Fifth Amendment due process by depriving him of a full and fair hearing and a meaningful opportunity to present evidence for asylum, withholding, and CAT relief.
2. Whether any procedural due process violation was prejudicial, meaning it had the potential to affect the outcome of the removal proceedings.
3. Whether the appropriate remedy required vacatur and remand for a new hearing, including reassignment to a different IJ.

## Decision

- The Third Circuit granted the petitions for review.
- The court held that Serrano-Alberto was denied due process because the IJ’s hostile and interruptive conduct actively impeded his ability to present his claims.
- The court found prejudice because the truncated testimony and misapprehension of the record had the potential to affect eligibility determinations for asylum, withholding, and CAT protection.
- The court vacated the BIA’s affirmance of the IJ’s decision and the BIA’s denial of reopening.
- The court remanded for a new hearing and urged reassignment to a different IJ to preserve fairness and the appearance of justice.

## Legal Principles

- Noncitizens in removal proceedings are protected by the Fifth Amendment and are entitled to a full and fair hearing, including a meaningful opportunity to be heard and a reasonable opportunity to present evidence.
- An IJ may control proceedings and question witnesses, but may not use hostility, persistent interruption, badgering, or fixation on immaterial matters in a way that effectively prevents an applicant from presenting material testimony.
- A due process claim in removal proceedings generally requires a showing of prejudice; prejudice exists when procedural defects have the potential to affect the proceeding’s outcome.
- Where the record reflects serious concern about an IJ’s ability to fairly reconsider the case, reassignment on remand may be warranted to ensure both actual fairness and the appearance of justice.

## Conclusion

The Third Circuit held that the IJ’s conduct denied Serrano-Alberto a meaningful opportunity to present his applications for asylum, withholding of removal, and CAT relief, and that the resulting defects were prejudicial; it vacated the BIA’s orders and remanded for a new hearing with reassignment to a different IJ.


Serrano-Alberto v. Att’y Gen. U.S., 859 F.3d 208 (3d Cir. 2017)