Ernesto Salgado-Diaz v. John Ashcroft, Attorney General, Ernesto Salgado-Diaz v. John Ashcroft, Attorney General

Ernesto Salgado-Diaz comes before us for the second time, petitioning for review of a decision of the Board of Immigration Appeals (“BIA”) summarily affirming the decision of an Immigration Judge (“IJ”) finding him' removable. Salgado-Diaz alleges that his due process rights have been violated because he has been repeatedly denied an evidentiary hearing on his allegations that U.S. border patrol agents unlawfully arrested him on the streets of San Diego, California, and took him to Mexico in 1996, even though he was in immigration proceedings at the time. His arrest and expulsion set in motion a series of events that ultimately resulted in Salgado-Diaz losing his opportunity to seek relief under then-existing immigration laws that likely would have entitled him to suspension of deportation.

If Salgado-Diaz’s allegations concerning his arrest and expulsion are true, he would have a substantial claim that his constitutional rights have been violated. Accordingly, we hold that denying him an evidentiary hearing on those allegations is itself — under the circumstances present here — a due process violation. We therefore grant his petition and remand his case to the BIA for an…