NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KELLY SUGEY CONTRERAS

- LARIOS,

Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 15

- 73706 Agency No. A200

- 812

- 547

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 5, 2019 Pasadena, California Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS, ** District Judge. Kelly Contreras Larios (“Contreras”) petitions for review of the decision of the Board of Immigration Appeals (“BIA”) upholding the denial of her claim s for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We grant Contreras’s petition for rev iew

. We remand Contreras’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. 

# FILED

APR 3 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

claims to the BIA for it to consider , in the first instance, whether the Immigration Judge (“IJ”) prejudicially denied Contreras due process of law by deciding her case without a hearing , in the absence of a n explicit, personal w aiver of her right to a hearing.
Contreras fled from El Salvador to the United States when she was fifteen years old. In El Salvador, she had been kidnapped by the Mara Sal vatrucha (“MS”)
gang and held for three days while gang members physically abused and raped her

. She was released only on the condition that she pay the gang members a sum of money weekly. I n her pro se application for asylum and withholding of removal, she wrote that the gang had targeted her because she was “ a young lady.” See Mohammed v. Gonzales , 400 F.3d 785 , 797 ( 9th Cir. 2005) (“[T] he recognition that girls or women of a particular clan or nationality (or even in some circumstances females in general) may constitute a social group is simply a logical application of our law

. ”)

. Contreras’s attorney asserted b efore the IJ , the BIA, and this court, that she i s a member of the particular social group “Salvadoran women tortured by misogynist gang members who believe that women are to be dominated and controlled wholly. ”

“ [A] n alien who faces deportation is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf.” Colmena r v. INS , 210 F.3d 967, 971 (9th Cir. 2000)

. T estimony at an asylum hearing is3

central to the “integrity of the asylum process itself , ” Oshodi v. Holder , 729 F.3d 883, 890 (9th Cir. 2013), particularly because “ t here are cases where an alien establishes eligibility for asylum by means of his oral test imony when such eligibility would not have been established by the documents alone , ” Matter of Fefe , 20 I

. & N

. Dec. 116, 118 (BIA 1989)

. Here , t he IJ denied Contreras ’ s claim for asylum and withholding of removal on February 26, 2014, prior to holding the scheduled hearing on the merits. The IJ did not inquire whether Contreras knowingly , voluntar il y and intelligently waived her right to a hearing , s ee 8 C.F.R. § 1003.25(b) , nor was there an exp ress stipulation that no hearing would take pla ce , see Fefe , 20 I

. & N

. Dec. at 118

. 1 A hearing had actually been scheduled for May 1 3 , 2014. On March 2 5 , 2014, Contreras filed a Sua Sponte Motion to Reconsider (the “Motion” or “Motion to Reconsider” ) with the i mmigration c ourt , objecting to the fact that the IJ’s decision had been made before the scheduled merits hearing and asserting that “[t]his mistake led to the abrogation of her pending asylum applications which constitutes an exceptional situation as it is an unjust

1 The government argues that the IJ, Petitioner’s attorney, and the government’s attorney agreed in an “off

- the

- record” session, which was summarized on the record, that the parties would be returning to court only for a decision on a question of law. We ag ree that that is a fair reading of the record. However, nothing in the record indicates that Petitioner (whether on or off the record) waived her right to an actual hearing, or even that her attorney agreed that he was waiving Petitioner’s right to actuall y testify orally.4

infringement of h er due process rights .” Submission of Mot

. to Recons ider dated March 25, 2014 at 4, Contreras

- Larios v. Barr , No. 15

- 73706 (9th Cir. Mar. 1, 2019) , Dkt. No. 42

. T he IJ did not rule on the Motion , and on May 1, 2014 , the immigration court rejected the filing because, by that point, the BIA had taken up
Contreras’ s administrative appeal.
Contreras’ s Notice of Appeal to the BIA lists the lack of a hearing as a ground for relief, but it does not specifically mention due process. Her brief to the
BIA likewise does not claim she was denied due process. C ontreras did not raise
denial of due process in her opening brief before this court , and she did not file a reply brief

. 2
T he BIA adopted the IJ’s decision in its entirety, citing Matter of Burbano , 20 I. & N. Dec. 872, 874 (BIA 1994) , “ to signify that it had conducted an independent review of the record and had exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ. ” Abebe v. Gonzales , 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc)

. “[W]hen the
BIA cites Burbano in its decision, all issues presented before the IJ are deemed to have been presented to the BIA.” Arreguin

- Moren o v. Mukasey , 511 F.3d 1229, 1232 (9th Cir. 2008). Thus, we may look to the record as a whole and all issues

2 On February 28, 2019, we ordered supplemental briefing on the due process issue. Dkt. No. 41.5

that had been before the IJ. See Abebe , 432 F.3d at 1040

– 41

. Unfortunately , the record before the BIA was incomplete

— t he Motion to
Reconsider was inadvertently omitted

. It is undisputed that the M otion should have
been included in the administrative record

. See 8 C.F.R. § 1 003.2(b)(1) ( stating that when a motion to reconsider is filed with the IJ, the BIA may consider i t as a motion to remand)

. T he government candidly and appropriately acknowledged that the Motion “should have made it to the B oard,” Oral Argument at 20: 18 , Contreras

- Larios v. Barr , No. 15

- 73706 (9th Cir. Mar. 5, 2019), https://www.ca9.uscourts.gov/media/view_vi deo.php?pk_vid=0000015217 , and
concede d th at th e failure to send the Motion to the BIA was an error : “ W e confess error that it should have been included in the record initially.” Id. at 20:2 9

. The government argues that the due process claim is unexhauste d and that we lack jurisdiction to consider it , even as plain error . However, in the unique circumstances presented here, w e need not reach th e question of exhaustion . H ad
the Motion to Reconsider been properly included in the record to the BIA , the
Board would have had the opportunity to address any due process issue as part of its independent review of the record

. See Figueroa v. Mukasey , 543 F.3d 487, 492 (9th Cir. 2008) ( “ Because ‘ the policy underlying the exhaustion requirement is to give an administrative agency the opportunity to resolve a controversy or correct its own errors before judicial intervention, ’ Zara v. Ashcroft , 383 F.3d 927, 9316

(9th Cir. 2004) , we do not employ the exhaustion doctrine in a formalistic manner, but rather inquire into whether the issue was before the BIA such that it had the opportunity to correct its error.” )

. When the BIA fails to consider an issue because of an error, we must “ give [] the BIA the opportunity to address the matter in the first instance in light of its own expertise

. ” INS v. Ventura , 537 U.S. 12, 1 7 (2002)

. As in Ventura , r emand is particularly appropriate here because it “ could lead to the presentation of further
evidenc e
. . . . ” Id. at 18 ( holding that remand was required , in part, because only
the BIA has the authority to remand a case for updated information ). Petitioner’s right to an actual hearing is a fundamental one. See Colmenar , 210 F.3d at 971

. Her counsel did not raise the issue before the BIA , but the BIA
should have had the Motion to Reconsider before it, and if it had, it could have
address ed the lack of a hearing. On remand, the BIA should do so. Accordingly , we grant Contreras’ s petition to rev iew her claims for asylum and withholding of removal and remand this case for the BIA to consider in the
first instance whether Contreras was prejudicially denied due process of law , and if
she was , the appropriate remedy

. Our remand is without prejudice to the ability of
any party to make an y arguments on remand, including as to waiver.
PETITION GRANTED AND REMANDED
.