The court’s decision identifies several fundamental defects in the conduct of the deportation hearing.  At the outset of the hearing, the IJ informed the mother that she could get an attorney to "speak for" her son or that she could speak for him, and asked which alternative she preferred.  The court noted that this question to the unrepresented respondent left the impression that if she chose to get an attorney, she would not be able to testify or assist the attorney on her son’s behalf.  Similarly, the IJ asked the mother whether she would get an attorney or speak for herself, without explaining that in either case she could testify on her own behalf.  As a result, the respondent chose to speak for herself and her son.

At the hearing on the merits, the respondent was never given the opportunity to affirmatively explain her case for asylum.  The hearing began with the IJ asking her a series of questions, and then turning questioning over to the Immigration and Naturalization Service attorney.  The court found that this questioning amounted to subjecting the respondent to a cross-examination, without ever giving her an opportunity to narrate her case.  The IJ asked the respondent whether she had any "documentary evidence" to submit but did not explain this question, and when the respondent offered to show the judge some photographs, the IJ stated that it was not necessary to view them.

In finding that the hearing violated due process, the court noted that it has previously held that an administrative law judge conducting a Social Security disability hearing has a duty to "fully and fairly develop the record."  Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).  The court found that the same duty applies to immigration judges, concluding that for several reasons the rationale for applying this rule to immigration proceedings is "at least as important" as in the Social Security context.  As in Social Security proceedings, respondents in immigration proceedings are often unrepresented and without legal training or knowledge.  In addition, they often lack proficiency in English.  Moreover, in deportation cases the respondents face removal from the country, which, when carried out in asylum cases, may pose a significant threat to life, safety, and well-being.

The court noted that the lack of a full and fair hearing alone does not establish a due process violation because a respondent must also demonstrate that as a consequence her case suffered or was "prejudiced."  The court concluded that in this case the respondent was prejudiced because the IJ found her not credible without giving her the opportunity to fully explain her case.  Accordingly, the court vacated the BIA’s decision and remanded the case for a new hearing.