                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-2533
                                    _____________

                         OLUDOLA AKINMOLA JOHNSON,

                                                      Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondent
                                    _____________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A076-179-226)
                     Immigration Judge: Honorable Jesus Clemente
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 22, 2012

           Before: RENDELL, FUENTES, and HARDIMAN, Circuit Judges

                             (Opinion Filed: July 17, 2012)

FUENTES, Circuit Judge.


      We are asked to determine whether the Board of Immigration Appeals (the

“Board”) erred in denying Petitioner Oludola Akinmola Johnson’s motion to vacate an

Immigration Judge’s decision that found Johnson removable as an alien convicted of an

aggravated felony. Johnson petitions this Court for review, arguing that the Immigration


                                           1
Judge’s failure to advise him of the opportunity to examine and object to evidence, to

present evidence on his own behalf, and to cross-examine witnesses presented by the

Government, as required by 8 C.F.R. § 1240.10(a)(4), violated his due process rights and

entitles him to a new removal hearing. We conclude that it does, and we will vacate the

Board’s order and remand for a new removal hearing before an Immigration Judge.


                                             I.


       Because we write primarily for the parties, we set forth only the facts and history

relevant to our conclusion.


       Oludola Akinmola Johnson is a native and citizen of Nigeria. In approximately

1989, he arrived in the United States. He applied for asylum in 1992. However, before

the adjudication of his asylum application, Johnson adjusted his status to lawful

permanent resident.


       In January 2010, Johnson pleaded guilty to one count of conspiracy to commit

bank fraud, in violation of 18 U.S.C. § 1349, and one count of aggravated identity theft,

in violation of 18 U.S.C. 1028(a)(1); he was sentenced to an aggregate term of fifty-one

months’ imprisonment. While Johnson was serving his sentence, the Department of

Homeland Security charged Johnson with removability, under 8 U.S.C.

§ 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony.


       Johnson appeared pro se at his removal hearing before the Immigration Judge. At

the hearing, the Judge did not inform Johnson of his right to examine and object to the


                                             2
evidence against him and to present evidence on his own behalf. The Immigration Judge

found that Johnson had committed an aggravated felony and ordered Johnson removed.


       Johnson, with the assistance of counsel, appealed the Immigration Judge’s

decision to the Board. Johnson also filed a motion to remand with the Board, arguing

that the Immigration Judge failed to advise Johnson of his evidentiary rights, as required

by 8 C.F.R § 1240.10(a)(4), and that the Immigration Judge also failed to advise Johnson

of his apparent eligibility for relief under the Convention Against Torture, as required by

8 C.F.R. § 1240.11(a)(2). Johnson submitted evidence to the Board that he believed

supported his eligibility for relief. However, the Board determined that Johnson’s

evidence failed to make the necessary showing for withholding of removal or Convention

Against Torture protection. Therefore, the Immigration Judge’s error had no impact on

Johnson’s eligibility for relief programs. Consequently, the Board denied Johnson’s

appeal and his motion to remand.


       Johnson timely filed a petition for review and a motion to stay his removal in this

Court. On July 25, 2011, this Court granted Johnson’s motion to stay his removal.


                                            II.


       We have jurisdiction to review the Board’s dismissal of Johnson’s appeal and

denial of his motion to remand. This Court has jurisdiction to review “constitutional

claims or questions of law” relating to the Board’s final removal orders of aggravated

felons. 8 U.S.C. § 1252(a)(2)(D); see Cabrera-Perez v. Att’y Gen., 456 F.3d 109, 114



                                             3
(3d Cir. 2006) (per curiam); Papageorgiou v. Att’y Gen., 413 F.3d 356, 358 (3d Cir.

2005). We review de novo the Board’s determination of an underlying due process claim.

Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007).


       The record reflects, and the Government does not dispute, that the Immigration

Judge failed to apprise Johnson of his rights to object to the evidence against him and to

present evidence on his behalf, as required by 8 C.F.R. § 1240.10(a)(4).


       The Government argues that the Immigration Judge’s error was harmless because

Johnson would have been unable demonstrate his eligibility for Convention Against

Torture protection had the Immigration Judge advised Johnson of his evidentiary rights.

Generally, an alien must show substantial prejudice to prevail on a procedural due

process claim when the Immigration Judge violates a regulation. See Bonhometre v. Att’y

Gen., 414 F.3d 442, 448 (3d Cir. 2005). Since Johnson did not suffer substantial

prejudice, the Government argues, his due process claim fails. See Denis v. Att’y Gen.,

633 F.3d 201, 219 (3d Cir. 2011) (requiring alien to prove that the result would have been

different to succeed on due process claim based on ineffective assistance of counsel);

Bonhometre, 414 F.3d at 448.


       However, as Johnson argues and we agree, under Leslie v. Attorney General, 611

F.3d 171, 180 (3d Cir. 2010), Johnson is entitled to a new hearing regardless of

substantial prejudice because the Immigration Judge failed to comply with a regulation

promulgated to protect fundamental statutory and constitutional rights. “[W]hen an

agency promulgates a regulation protecting fundamental statutory or constitutional rights


                                             4
of parties appearing before it, the agency must comply with that regulation. Failure to

comply will merit invalidation of the challenged action without regard to whether the

alleged violation has substantially prejudiced the complaining party.” Id. In other words,

substantial prejudice is irrelevant when the violated regulation protects fundamental

statutory or constitutional rights.


       The right to present evidence and cross-examine the Government’s witnesses is a

fundamental statutory right. Congress has directed the Attorney General to adopt

regulations ensuring an “alien shall have a reasonable opportunity to examine the

evidence against the alien, to present evidence on the alien’s own behalf, and to cross-

examine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B). It is clear

that regulation 8 C.F.R. § 1240.10(a)(4) protects an alien’s statutory evidentiary rights

created under 8 U.S.C. § 1229a(b)(4)(B).


       Further, the Due Process Clause of the Fifth Amendment requires that aliens

threatened with removal are provided a full and fair hearing with a reasonable

opportunity to be heard and to present evidence on their behalf. Abdulrahman v. Att’y

Gen., 330 F.3d 587, 596 (3d Cir. 2003); see Att’y Gen. v. Flores, 507 U.S. 292, 306

(1993); Abdulai v. Att’y Gen., 239 F.3d 542, 549 (3d Cir. 2001). Therefore, 8 C.F.R.

§1240.10(a)(4), requiring the Immigration Judge to advise aliens subject to removal of

their evidentiary rights, is also designed to address fundamental constitutional rights.


       The Immigration Judge was required to and failed to advise Johnson of his

evidentiary rights. See 8 C.F.R. § 1240.10(a)(4). Since these evidentiary rights are both


                                              5
fundamental statutory and constitutional rights, Johnson does not have to demonstrate

substantial prejudice to be entitled to remand. See Leslie, 611 F.3d at 180.


                                            III.


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

order, and remand for further proceedings consistent with this opinion.




                                             6
