Lin v. Gonzales

MEMORANDUM ** Nay Lin, a native and citizen of Burma, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider its order dismissing his appeal from an immigration judge’s decisions denying his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reconsider, Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005), and we review de novo claims of due process violations, Hartooni v. INS, 21 F.3d 336, 339 (9th Cir.1994). We dismiss in part and grant in part the petition for review and remand for further proceedings. We lack jurisdiction over the BIA order dismissing Lin’s direct appeal because the petition for review was not timely as to that order. We have jurisdiction to review the due process arguments that were raised on direct appeal to the BIA, in the motion to reconsider before the BIA and in the briefing to this court. The government’s contention that Lin has not argued whether or how the BIA abused its discretion in denying his motion to reconsider is unpersuasive. See Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002) (“A failure to recite the proper standard of review does not constitute waiver of a properly raised merits issue.”). Lin contends the agency violated due process by failing to allow his brother and *266 his friend to testify. We agree that the Id’s refusal to allow witness testimony constitutes a due process violation and remand for a new hearing. Due process principles prohibit an IJ from declining to hear relevant testimony because of a prejudgment about the witnesses’ “credibility or the probative value of [the] testimony.” See Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056 (9th Cir.2005) (quoting Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir.2004)). We infer prejudice because the IJ’s refusal to permit the witness testimony potentially affected the proceeding’s outcome. See Colmenar v. INS, 210 F.3d 967, 972 (9th Cir.2000). In light of our disposition, we do not address Lin’s contention regarding the translation of his proceedings. Petitioner’s counsel is reminded that unpublished dispositions filed before January 1, 2007, may not be cited to this court. See 9th Cir. R. 36-3(c). PETITION FOR REVIEW DISMISSED in part and GRANTED in part; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.