Due Process violation for waiving defense after off-the-record discussion

The Ninth Circuit ruled in Cano-Merida v. INS, No. 01-71423 (9th Cir. Nov. 22, 2002) that an immigrant who appeared pro se (without an attorney) deserved a new deportation (removal) hearing because his Due Process rights under the U.S. Constitution were violated when the immigration judge went off the record to tell him that he believed the asylum application had no basis and quickly led the immigrant to withdraw his asylum claim.

The Ninth Circuit required proof of prejudice, that if the hearing had gone ahead, it would have made a difference in the result. The immigrant prevailed on that issue because the immigration judge made it impossible for him to submit the full evidence that would have shown that he would have won if the hearing had gone ahead.

So, ideally, do not give up your claims based on an immigration judge's comments off the record. But if you do give up some of your claims, there may be an argument that the immigration judge violated your Due Process rights.

The basic elements of due process are clear. The "Fifth Amendment entitles aliens to due process of law in deportation proceedings," Reno v. Flores, 507 U.S. 292, 306 (1993), but due process is "flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (“Precisely what minimum procedures are due under a statutory right depends on the circumstances of the particular situation.”). The due process afforded aliens stems from those statutory rights granted by Congress and the principle that “[m]inimum due process rights attach to statutory rights.” Marincas, 92 F.3d at 203; see also Meachum v. Fano, 427 U.S. 215, 226 (1976).

The "fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976).