Zhercumerc R. Bartolo v. ERIC H. HOLDER, Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable William K. Sessions, III, District Judge for the U.S.
District Court for Vermont, sitting by designation.
1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHERCUMERC R. BARTOLO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-73711
Agency No. A097-869-008
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 1, 2012 **
Pasadena, California
Before: LEAVY and WARDLAW, Circuit Judges, and SESSIONS, District
Judge.***
FILED
NOV 05 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Zhercumerc Bartolo petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the procedural validity and substantive
correctness of an Immigration Judge’s (“IJ”) denial of his application for asylum,
withholding of removal, relief under the Convention Against Torture (CAT), and
voluntary departure. We have jurisdiction under 8 U.S.C. § 1252, and we grant the
petition and remand to the Board with instructions.
Bartolo, who suffers from serious mental illness, was ordered removed
following a hearing from which the Immigration Judge (“IJ”) excluded him out of
concern that he might disrupt the proceedings or cause an “incident” due to his
illness. Once Bartolo was outside of the courtroom, Bartolo’s counsel withdrew
most of the grounds for asylum presented in Bartolo’s application, asserting that he
“d[idn’t] believe” that these grounds in fact formed a valid basis for relief.
Although Bartolo had sought voluntary departure as an alternative, his counsel
informed the IJ that he did not believe Bartolo was capable of making a request for
or complying with an order granting voluntary departure. Bartolo was not present
during his counsel’s statements, and the IJ did not even inquire as to whether
Bartolo had consented to have his asylum claims or his request for voluntary
departure withdrawn.

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1 The government raised the possibility of a due process issue at the hearing
before the IJ. Government counsel stated that “there would also be a possible due
process issue if [Bartolo] does not testify . . . I don't know if we can have a proper
record if he does not testify under the case law,” and expressed concern that if
Bartolo were to appeal “he could argue that he did not get the opportunity to testify
and it would be remanded back to the [c]ourt.”
3
We review de novo Bartolo’s claim that he was denied due process in his
removal proceeding. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.
2006). “The BIA’s decision will be reversed on 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
violation.” Id. at 620-21 (internal citations and quotation marks omitted). Here,
Bartolo was absent from the hearing and no one testified on his behalf or presented
fully developed arguments for relief.1 As the BIA has recognized, “there are a
number of safeguards available to Immigration Judges” to protect the rights of
mentally incompetent individuals, including “docketing or managing the case to
facilitate the respondent’s ability to obtain . . . medical treatment in an effort to
restore competency; participation of a guardian in the proceedings; continuance of
the case for good cause shown . . . [or] actively aiding in the development of the
record, including the examination and cross-examination of witnesses . . . .”

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2 We note that the individual attorney who represented Bartolo at the hearing
before the IJ has since been suspended from the practice of law. See Attorney
Search: Ivan Pedro C. Porto - #129629, T HE S TATE BAR OF CALIFORNIA,
http://members.calbar.ca.gov/fal/Member/Detail/129629 (last visited Oct. 23,
2012). Bartolo’s counsel represented at oral argument that Mr. Porto is no longer
employed by the law firm that represents Bartolo, but other attorneys from the
same firm continue to represent him. This may explain the absence of any claim of
ineffective assistance of counsel based on the Fifth Amendment.
4
Matter of M-A-M- 25 I. & N. Dec. 474, 483 (2011). Here, the IJ failed to take
adequate steps to safeguard Bartolo’s due process rights or to “articulate his . . .
reasoning for the decision” not to pursue further safeguards, as the BIA’s own
precedent requires. Id.
Furthermore, we “may infer prejudice in the absence of any specific
allegation as to what evidence [Bartolo] would have presented . . . had he been
provided the opportunity to present that evidence.” Agyeman v. INS, 296 F.3d 871,
885 (9th Cir. 2002). Here, Bartolo did not have an opportunity to present evidence
in support of his claims for relief, as the IJ allowed Bartolo to be excluded from the
hearing, permitted his counsel to waive most of the grounds for his asylum
application, and did not hear any testimony on Bartolo’s behalf, instead denying
his application on the basis of a paltry documentary record. 2 We conclude that
these failures prejudiced Bartolo’s prospects for relief.

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5
Because we conclude that Bartolo’s right to due process was violated at his
removal hearing and that he has adequately demonstrated prejudice, we do not
reach the BIA’s decision on the merits of Bartolo’s claims for asylum, withholding
of removal, or CAT relief. Rather, we remand to the BIA with instructions to
vacate the order of removal and remand to the IJ for a new, due process-compliant
hearing to develop the record.
The government has recently moved for remand to the BIA for the purpose
of administratively closing the proceedings against Bartolo. That motion is denied
as moot. Nonetheless, if the government continues to believe that administrative
closure is appropriate, nothing prevents the BIA from administratively closing the
case on remand. If proceedings do resume, however, a new hearing before an IJ
would be required to satisfy due process.
Motion to Remand for Administrative Closure DENIED as Moot;
Petition for Review GRANTED; REMANDED with instructions.

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