                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 13-3828
                                     ___________

                              MARIO JAIMEZ-PEREZ,
                                           Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent

                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A073-122-385)
                   Immigration Judge: Honorable Steven A. Morley
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 2, 2014
             Before: CHAGARES, GARTH and SCIRICA, Circuit Judges

                             (Opinion filed: April 7, 2014)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Mario Jaimez-Perez, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) final order of removal entered on August 21,
2013. For the following reasons, we will grant the petition for review, vacate the BIA’s

order, and remand to the BIA for further proceedings.

                                            I.

      Jaimez-Perez entered the United States through the California border around

September 1987. In 1994, Jaimez-Perez paid smugglers to bring his wife and two

children, all natives and citizens of Mexico, to the United States. In 1998, Jaimez-Perez

and his wife had a third child, who was born in the United States. On March 30, 1998,

Jaimez-Perez was served with a notice to appear, alleging that he was present in the

United States without being admitted or paroled, in violation of Immigration and

Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). The notice to

appear was later amended to also allege that Jaimez-Perez sought to procure an

immigration benefit by fraud or willfully misrepresenting a fact, in violation of INA

§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). Jaimez-Perez conceded removability and

admitted to having made misrepresentations on asylum applications in 1994 and 1996.

Jaimez-Perez filed an application for cancellation of removal under INA § 240A(b)(1), 8

U.S.C. § 1229b(b)(1).1


1
  In order to be eligible for cancellation of removal, an alien must show, inter alia,
continuous presence in the United States for ten years preceding the date of his
application for cancellation of removal and that he “has been a person of good moral
character during such period.” INA § 240A(b)(1)(A)-(B), 8 U.S.C. § 1229b(b)(1)(A)-
(B); see also Duron-Ortiz v. Holder, 698 F.3d 523, 527-28 (7th Cir. 2012) (deferring to
the BIA’s reasonable conclusion that the period for determining good moral character is a
ten-year period calculated backwards from the date on which a final administrative
                                                2
       At a hearing in January 2006, an Immigration Judge (“IJ”) found that Jaimez-

Perez established ten years of continuous presence in the United States. At a hearing in

October 2011, an IJ found that Jaimez-Perez’s false statements on his asylum

applications occurred prior to the relevant ten-year period and did not bar a finding of

good moral character. However, Jaimez-Perez testified on cross-examination that after

his son Miguel was deported to Mexico in 2009, he sent Miguel money for food. Jaimez-

Perez testified that he also sent money to a U.S.-citizen in Texas who helped Miguel

reenter the United States unlawfully. Immediately after this testimony, the Department of

Homeland Security (“DHS”) moved to pretermit Jaimez-Perez’s application on the basis

that the financial assistance that he provided to his son precluded a demonstration of good

moral character. Jaimez-Perez’s counsel then conducted a redirect examination,

following which, the IJ gave the parties the opportunity to submit briefs concerning the

DHS’s motion and adjourned the proceedings.

       The IJ held a hearing in November 2011. At that hearing, Jaimez-Perez requested

the opportunity to submit an affidavit or testimony clarifying four points: (1) that Miguel

called Jaimez-Perez and asked him to send $1000 to him in Mexico and $1000 to Texas;

(2) that the money Jaimez-Perez sent was Miguel’s own money; (3) that Jaimez-Perez

sent the money at Miguel’s direction; and (4) that Jaimez-Perez was unaware at the time

why Miguel wanted the money. The IJ refused Jaimez-Perez’s request to enter additional


decision is issued).
                                             3
evidence into the record, pretermitted Jaimez-Perez’s application, and ordered him

removed. The BIA dismissed Jaimez-Perez’s appeal, and he timely filed a petition for

review.

                                             II.

       We have jurisdiction to review a final order of removal under INA § 242(a)(1), 8

U.S.C. § 1252(a)(1). Because the BIA issued its own opinion on the merits, we review

its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.

2005). However, to the extent that the BIA deferred to or adopted the IJ’s reasoning, we

also look to and consider the decision of the IJ on those points. See Chavarria v.

Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We exercise de novo review over the BIA’s

legal decisions. See Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 2009).

                                            III.

       Jaimez-Perez argues that the IJ’s refusal to accept additional evidence concerning

the money that he sent to Miguel violated his due process rights. Notably, that evidence

would have clarified what information Jaimez-Perez knew at the time he sent the money

on Miguel’s behalf. Specifically, it would have addressed whether Jaimez-Perez acted

“knowingly,” which is the requisite mens rea under INA § 212(a)(6)(E)(i), 8 U.S.C.

§ 1182(a)(6)(E)(i), when he assisted Miguel’s illegal entry. See Tapucu v. Gonzales, 399

F.3d 736, 739 (6th Cir. 2005) (noting that the smuggling bar requires that an individual

“knowingly assisted an illegal entry”). An alien who qualifies as an individual described

                                             4
in § 212(a)(6)(E)(i) is necessarily not a person of good moral character. INA § 101(f)(3),

8 U.S.C. § 1101(f)(3). Jaimez-Perez is required to demonstrate good moral character to

be eligible for cancellation of removal. INA § 240A(b)(1)(B), 8 U.S.C.

§ 1229b(b)(1)(B).

       Due process entitles an alien to “a full and fair hearing and a reasonable

opportunity to present evidence.” Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.

2006); see also INA § 240(b)(4)(B), 28 U.S.C. § 1229a(b)(4)(B). The importance of that

right “can scarcely be contested.” Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.

2006). Here, the DHS moved to pretermit Jaimez-Perez’s application during an October

2011 hearing before the IJ. While Jaimez-Perez’s counsel was allowed to immediately

conduct a redirect examination, the record was ambiguous as to what Jaimez-Perez knew

when he sent the money. At the end of that hearing, the IJ noted that he would not ask

any questions of Jaimez-Perez because it was not his responsibility to “clarify the record

for either party.” At the November 2011 hearing, the IJ denied Jaimez-Perez’s request to

introduce the previously described evidence in order to clarify the record. Therefore,

Jaimez-Perez was effectively denied a reasonable opportunity to present evidence in

response to the DHS’s motion to pretermit his cancellation application. See Jarbough v.

Att’y Gen., 483 F.3d 184, 190 (3d Cir. 2007) (“At the core of due process are the

requirements of notice and a meaningful opportunity to be heard.”).




                                             5
       The absence of a reasonable opportunity to present evidence, alone, does not give

rise to a successful due process violation claim. To prevail on a due process claim, an

alien “must show that substantial prejudice resulted from the alleged procedural errors.”

Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010). The evidence that

Jaimez-Perez sought to admit specifically challenged the motion to pretermit. Thus,

Jaimez-Perez was prejudiced when he was denied the opportunity to create a full and

clear record.2 See, e.g., Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002) (finding

prejudice when a petitioner was denied the opportunity to present oral testimony).

Accordingly, the IJ’s refusal to allow Jaimez-Perez to present additional evidence at the

November 2011 hearing constituted a due process violation. It is on that basis that we

remand to the BIA.

       On remand, the BIA must allow Jaimez-Perez a renewed opportunity to present

evidence of his knowledge when he forwarded the money to Miguel.3 If after Jaimez-

Perez has presented new evidence, the BIA nevertheless determines that he possessed the


2
  Although the IJ accepted a proffer of the evidence that Jaimez-Perez sought to
introduce, the IJ reasoned that he did not find the proffer credible because it consisted of
“post hoc rationalizations.” ‘“While we defer to the IJ on credibility questions, that
deference is expressly conditioned on support in the record.’” Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003) (en banc) (quoting Nagi El Moraghy v. Ashcroft, 331 F.3d 195,
205 (1st Cir. 2003)). Consequently, an adverse credibility determination is only granted
deference when based on specific reasoning that is supported by evidence in the record.
Id. Thus, while the IJ noted in his opinion that the proffer of testimony “completes the
picture and shows that it was done with knowledge,” Jaimez-Perez’s proffer explicitly
stated that he was ignorant of what the money would be used for.
3
  We recognize that this will likely require that the BIA remand the case to the IJ. See 8
                                               6
requisite mens rea when he forwarded the money to Miguel, the BIA should reconsider

his assertion that INA § 212(d)(11), 8 U.S.C. § 1182(d)(11), permits him to establish

good moral character. See Sanchez v. Holder, 560 F.3d 1028, 1034-35 (9th Cir. 2009)

(Paez, J., concurring).

                                           IV.

       For the foregoing reasons, we will grant the petition for review, vacate the BIA’s

final order of removal, and remand for further proceedings.




C.F.R. § 1003.1(d)(3)(iv).
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