The Third Circuit determined that an Immigration Judge violated an unrepresented applicant's due process rights by continuously interrupting him, speaking to him in a rude tone, and preventing him from providing testimony about his fear of return to El Salvador. The judge was also clearly unfamiliar with the basic facts in the record.
In addition, the Court called on the Board of Immigration Appeals (BIA) to stop its practice of bypassing the question of whether a particular social group is valid, and proceeding straight to the nexus determination. "In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus. This practice, however, can have troubling consequences. First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what? Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.” Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale."
"[T]he BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, and ultimately generating additional needless litigation because of the uncertainty in this area."
The full text of Serano-Alberto v. Attorney General can be found here: