Andrei Nik SELBAKOV, Petitioner, v. Alberto GONZALES, Attorney General, Respondent, 147 F. App'x 676

MEMORANDUM Because expert testimony allowed into the record by the Immigration Judge (“IJ”) was omitted from the administrative record sent to the Board of Immigration Appeals (“BIA”) for review, Selbakov was deprived of due process of law. Zolotukhin v. Gonzales, 417 F.3d 1073, 1076-77 (9th Cir.2005); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000); Ladha v. INS, 215 F.3d 889, 904-05 (9th Cir.2000); Padilla-Agustin v. INS, 21 F.3d 970, 978 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).

The administrative record does not contain Stephen Handelman’s letter of August 9, 1999, despite the fact that the IJ admitted it into the record upon a motion to reconsider certain late filed documentary evidence. That the letter was simply not available for review “overcome[s] the presumption that [the BIA] did review the evidence.” Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir.2000). Prejudice was established because the omission of the Handelman letter potentially affected the outcome of Selbakov’s appeal to the BIA. Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.2002); Colmenar, 210 F.3d at 972; cf.

Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir.2005) (en banc). We therefore remand to the BIA for a determination on the merits of Selbakov’s asylum application in light of the full record of the proceeding below, including the Handelman letter of August 9, 1999. On remand the BIA must take into consideration the effect of our decisions in Thomas, 409 F.3d at 1186-87, and Lin v. Ashcroft, 377 F.3d 1014, 1028-29 (9th Cir.2004), which establish that family membership may constitute a “particular social group” for asylum purposes. REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.