“Immigration proceedings, although not subject to the full range of constitutional protections, must conform to the Fifth Amendment’s requirement of due process.” Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005) (as amended); see also Gonzaga-Ortega v. Holder, 736 F.3d 795, 804 (9th Cir. 2013) (as amended); Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012); United States v. Reyes-Bonilla, 671 F.3d 1036, 1045 (9th Cir. 2012), cert denied by 133 S. Ct. 322 (2012); Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (order).
“A full and fair hearing is one of the due process rights afforded to aliens in deportation proceedings. … A court will grant a petition on due process grounds only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (citations and quotation marks omitted); see also Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (“[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.”). Removing an alien from the United States without any procedural safeguards of a formal hearing may result in a due process violation. See Salgado-Diaz, 395 F.3d at 1162-63 (“[F]ailing to afford petitioner an evidentiary hearing on his serious allegations of having been unlawfully stopped and expelled from the United States, aborting his pending immigration proceedings and the relief available to him at the time, violated his right to due process of law.”). “Due process always requires, at a minimum, notice and an opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014) (failure to inform petitioner of the charge against him and to provide him with the opportunity to review the sworn statement constituted a violation of petitioner’s due process rights). This court reviews de novo claims of due process violations. Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011) (as amended); Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).
“The BIA’s decision will be reversed on due process grounds if (1) the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.” Ibarra-Flores, 439 F.3d at 620-21 (internal quotation marks and citations omitted); see also Zetino v. Holder, 622 F.3d 1007, 1013 (9th 03/2015 E-1 Cir. 2010) (en banc); Gutierrez v. Holder, 730 F.3d 900, 903 (9th Cir. 2013) (no due process violation); Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010); Hammad v. Holder, 603 F.3d 536, 545 (9th Cir. 2010) (explaining that although the rules of evidence are not applicable to immigration hearings, proceeding must be conducted in accordance with due process standards of fundamental fairness); Shin v. Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008) (explaining that to successfully attack the conclusions and orders made during removal hearings on due process grounds “it must be shown that the proceedings were manifestly unfair and that the actions of the [immigration judge] were such as to prevent a fair investigation” (internal quotation marks omitted)). “Where an alien is given a full and fair opportunity to be represented by counsel, prepare an application for … relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir. 2007). Due process violations have been identified in cases where the IJ delegated his duties to develop an unrepresented petitioner’s case to the government attorney, Pangilinan, 568 F.3d at 709-10, prevented full examination of the applicant, Colmenar, 210 F.3d at 972, the IJ stood in moral judgment of the alien, ReyesMelendez v. INS, 342 F.3d 1001, 1007-09 (9th Cir. 2003), and where the IJ pressured an alien to drop a claim for relief that he was entitled to pursue, CanoMerida, 311 F.3d at 964-65. The court also concluded that a petitioner was denied due process where the petitioner was denied a continuance and limitations were placed on her testimony, thereby preventing petitioner from fully and fairly presenting her case. Cruz Rendon v. Holder, 603 F.3d 1104, 1111 (9th Cir. 2010). Although aliens are entitled to due process of law, they “must in the first instance possess a liberty or property interest.” Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1330 n.13 (9th Cir. 2006).
If an alien was never eligible for the discretionary relief sought, then he does not have a liberty or property interest that can be affected. See id. (rejecting due process claim that 8 U.S.C. § 1229b(d)(1)(B) as applied to petitioner’s case denied him due process because he was not eligible for discretionary relief, and thus had no liberty or property interest); see also Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam). The denial of discretionary relief cannot violate a substantive due process interest, because discretionary relief is a privilege created by Congress. See Lim v. Holder, 710 F.3d 1074, 1076 (9th Cir. 2013) (“Cancellation of removal is a form of discretionary relief which does not give rise to a substantive interest protected by the Due Process Clause.” (internal quotation marks and citation 03/2015 E-2 omitted)); Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004) (voluntary departure); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (cancellation of removal).
However, note that violations of procedural due process and claims of ineffective assistance of counsel, “which are predicated on the right to a full and fair hearing, are not affected by the nature of the relief sought.” Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006) (citation omitted); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050-51 (9th Cir. 2004) (concluding that alien was prejudiced by “the IJ’s unconstitutional failure to inform him that he was eligible for § 212(c) relief”).