                                                                                FILED
                              NOT FOR PUBLICATION                               SEP 05 2012

                                                                           MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


DARSHAN SINGH,                                   No. 08-70993

                Petitioner,                      Agency No. A098-152-538

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

                Respondent.


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

                        Argued and submitted August 10, 2012
                              San Francisco, California

Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON, Senior
District Judge.**

       Darshan Singh, a native and citizen of India, petitions for review of the

denial of his asylum application on the basis that he lacked credibility. The

Immigration Judge (“IJ”), after agreeing to continue redirect examination to a


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
future date, issued her decision prior to that date. Because the IJ’s premature

decision denied Mr. Singh due process of law, we vacate the decision by the Board

of Immigration Appeal (“BIA”) and remand this case to the BIA to allow Mr.

Singh redirect examination.1

      1. Although a petitioner must exhaust his administrative remedies, see U. S.

C. § 1252(d)(1), we have held that “we do not employ the exhaustion in a

formalistic manner,” and require that the petitioner has put the BIA on notice as to

the specific issues so that it has an opportunity to pass on those issues. Figueroa v.

Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). Despite respondent’s argument to the

contrary, we find that Mr. Singh adequately presented his due process argument to

the BIA.

      2. “Claims of due process violations in deportation proceedings are

reviewed de novo.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (citing

Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). In Ibarra-Flores, we

reiterated our holding in Colmenar that “an alien who faces deportation is entitled

to a full and fair hearing of his claims and a reasonable opportunity to present

evidence on his behalf.” Id. Accordingly, the BIA’s decision “will be reversed on



      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                          2
due process grounds if (1) the proceeding was so fundamentally unfair that the

alien was prevented from reasonably presenting his case, . . . and (2) the alien

demonstrates prejudice, which means that the outcome of the proceeding may have

been affected by the alleged violations.” Id. at 620-21 (internal quotation marks

and citation omitted).

      Here, despite respondent’s counsel’s insistence at oral argument to the

contrary, we determine that the IJ’s premature decision denied Mr. Singh “a full

and fair hearing on his claims and a reasonable opportunity to present evidence on

his behalf.” See Colmenar, 210 F.3d at 971. The IJ’s offer to continue redirect

examination to a later date may have been based on Mr. Singh’s need for time to

respond to the respondent’s assertions concerning Mr. Singh’s actions when he

served in the Indian Army in Sri Lanka. However, the IJ did not hear redirect at

the hearing and set all redirect over to the continued date. The IJ’s issuance of a

decision before Mr. Singh had an opportunity to present evidence and testimony on

redirect was fundamentally unfair and prevented him from reasonably presenting

his case.

      Furthermore, the premature decision was prejudicial because a number of

the reasons given by the IJ for finding that Mr. Singh was not credible might well

have changed had Mr. Singh had the opportunity to present testimony on redirect.


                                          3
For example, Mr. Singh might have explained his confusion concerning questions

pertaining to whether the terrorists who kidnaped him also sought to recruit him,

and that his brother-in-law is also his friend. On this record the outcome of the

proceedings may be affected by Mr. Singh’s testimony and the evidence on

redirect examination. See Ibarra-Flores, 439 F.3d at 621.

      The petition is GRANTED, the Board of Immigration Appeal’s decision is

VACATED, and this case is REMANDED for further proceedings.




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