Francisco Javier Castruita- Gomez, a.k.a. Francisco J. Castruita, Francisco… 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 Honorable Glenn L. Archer, Jr., Senior United States Circuit**
Judge for the Federal Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER CASTRUITA-
GOMEZ, a.k.a. Francisco J. Castruita,
Francisco Castruita, Francisco Javier
Castruita,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-74582
Agency No. A091-510-225
MEMORANDUM*
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
FILED
SEP 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We grant both Castruita’s and the government’s motions for leave to file1
supplemental briefs.
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

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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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