                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 03 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FRANCISCO JAVIER CASTRUITA-                      No. 06-74582
GOMEZ, a.k.a. Francisco J. Castruita,
Francisco Castruita, Francisco Javier            Agency No. A091-510-225
Castruita,

              Petitioner,                        MEMORANDUM *

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted April 15, 2010
                            San Francisco, California

Before: KOZINSKI, Chief Judge, ARCHER, Senior Circuit Judge,** and
CALLAHAN, Circuit Judge.

       Francisco Javier Castruita-Gomez (“Castruita”) brings this petition for

review of the Board of Immigration Appeals’ (“BIA”) decision affirming the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
immigration judge’s (“IJ”) determination that he is removable based on his

conviction for three crimes of moral turpitude (“CIMTs”). We have jurisdiction

pursuant to 8 U.S.C. § 1252. We grant the petition for review and remand to the

BIA for further proceedings.   1



         1.   We hold that Castruita exhausted his due process claim before the

BIA by contending that the IJ erred in relying solely on Castruita’s admissions in

response to legal questions rather than holding the government to its burden of

proof and examining the record of conviction. See Agyeman v. INS, 296 F.3d 871,

877-78 (9th Cir. 2002); Kaganovich v. Gonzales, 470 F.3d 894, 896-97 (9th Cir.

2006).

         2.   An alien in removal proceedings has a Fifth Amendment right to a full

and fair hearing. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000); 8 U.S.C.

§ 1229a(b)(4)(B). The BIA’s decision will be reversed on due process grounds

where (1) the proceeding was so fundamentally unfair that the alien was prevented

from reasonably presenting his case; and (2) the alien has demonstrated prejudice,

i.e., that the outcome of the proceeding “may have been affected” by the alleged

violation. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006). For a

pro se alien to receive a full and fair hearing, the IJ must adequately explain



          1
        We grant both Castruita’s and the government’s motions for leave to file
supplemental briefs.
hearing procedures and develop the record fully. Agyeman, 296 F.3d at 877. We

review de novo a claimed due process violation. Ibarra-Flores, 439 F.3d at 620.

      3.     We conclude that Castruita’s hearing did not comport with due

process because the IJ did not apply the categorical and modified-categorical

approaches to Castruita’s convictions, or develop the factual record necessary to do

so. Specifically, he did not consider the record evidence that established that each

of Castruita’s three convictions occurred prior to his earlier removal proceeding

and grant of cancellation of removal. See Pangilinan v. Holder, 568 F.3d 708,

709-10 (9th Cir. 2009). As the IJ acknowledged, he also may not have given

Castruita adequate explanation of the hearing procedures and the import of his

questions. Also, the BIA did not consider the relevant record evidence and apply

the categorical and modified-categorical approaches to Castruita’s convictions.

See Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000). Castruita was

prejudiced by the absence of due process, because the outcome of the proceeding

may have been affected if these things had occurred.

      4.     We decline to consider as premature Castruita’s challenge to the

retroactive application of In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).




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      5.     Accordingly, we remand this matter to the BIA to consider whatever

issues it finds appropriate. The BIA may wish to consider the following issues on

remand.

      a.     The BIA may determine whether any of Castruita’s convictions

occurred within five years of his gaining legal status, such that he is potentially

removable under Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(i)

(conviction of one CIMT within five years after admission). See Shivaraman v.

Ashcroft, 360 F.3d 1142, 1147-49 (9th Cir. 2004). The present record contains no

basis to determine whether Castruita has remained continuously in legal status in

the United States since his entry, or when he first gained legal status after entering.

      b.     The BIA may consider whether, in view of Ruiz-Vidal v. Gonzales,

473 F.3d 1072, 1078 (9th Cir. 2007), the government may again allege as predicate

removal offenses Castruita’s convictions for which he received cancellation of

removal under INA § 240(A) on June 15, 2000.

      c.     If necessary, the BIA should apply the categorical and modified-

categorical approaches to Castruita’s convictions.

      PETITION GRANTED AND REMANDED.




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