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Viewing entries tagged
reasonable fear
The Ninth Circuit has affirmed than an Immigration Judge has the authority to consider new evidence when he reviews an asylum officer’s negative reasonable fear determination. However, this authority is discretionary, not mandatory.
The full text of Dominguez Ojeda v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/29/23-835.pdf
The Eleventh Circuit has declined to address whether a petitioner has a right to counsel during an immigration judge’s review of a negative reasonable fear determination. In this case, the petitioner had been issued a final order of administrative order of removal due to an aggravated felony conviction. The court instead determined that even if such a right exists, the petitioner must show substantial prejudice stemming from the violation of that right, and the petitioner failed to do so in this case.
The full text of Priva v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202012521.pdf
The Fourth Circuit has rejected the government’s argument that a negative reasonable fear determination should be upheld based on a “facially legitimate and bona fide reason,” finding this standard applicable only to visa denials. Instead, the determination should be reviewed for substantial evidence. The court then found that the applicant established a nexus between his family relationship to his son and the harm he suffered.
The full text of Tomas-Ramos v. Garland can be found here:
The Ninth Circuit has determined that a non-citizen subject to a reinstatement order has a right to counsel in a reasonable fear review with an Immigration Judge. However, that right must be taken in the context of the regulation that requires that reasonable fear reviews be conducted within ten days of the issuance of the Asylum Officer’s negative reasonable determination. Thus, the agency did not deny the petitioner his right to to counsel when he requested time to find an attorney at his hearing, which was scheduled on Day 8 of 10.
The full text of Orozco-Lopez v. Garland and Gonzalez Martinez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/20-70127.pdf
The Third Circuit has overturn a two phrase negative fear determination, finding that it is insufficient for appellate review. The Immigration Judge decision stated, ““R not targeted on account of protected ground. Government is willing to assist.”
“A two-sentence recitation on a bulletpoint form will rarely, if ever, provide sufficient reasoning for a decision. A decision, such as the one here, that does not refer to record evidence will never suffice.”
The full text of Valarezo-Tirado v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/201705pa.pdf
An amended decision can be found here:
The Third Circuit has applied substantial evidence review to a negative reasonable fear determination. The court rejected the government’s assertion that review of a reasonable fear determination should be subject to the highly deferential “facially legitimate and bona fide” standard. The court also approvingly cited to the Attorney General’s decision in Matter of L-E-A- for the proposition that nuclear families are generally not cognizable as particular social groups.
The full text of Castillo Romero v. Attorney General can be found here:
The Ninth Circuit has determined that 8 U.S.C. § 1228, which governs expedited removal proceedings for noncitizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. As such, the Immigration Judge erred by not getting a waiver of the petitioner’s right to counsel during the review of a negative reasonable fear determination. The petitioner was not required to show prejudice from the violation of his statutory right to counsel to prevail on his due process claim.
The full text of Zuniga v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/16-72982.pdf
An amended opinion, published on December 26, 2019, can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/26/16-72982.pdf
The Ninth Circuit addressed the parameters of reasonable fear review before an Immigration, as well as the judge’s authority to reopen that review. A “reasonable fear review hearing is conducted by an IJ. It is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings. Either party may introduce oral or written statements, and the court provides an interpreter if necessary.” “Extensive proof is not needed; rather an IJ need only determine whether there is at least a ten percent chance that the alien would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” Thus, although an IJ may allow an alien to submit evidence to support his or her claim, the IJ is not required to do so. The Court found that an IJ has the sua sponte authority to reopen any proceedings in which he has made a decision, including a reasonable fear review.
The full text of Bartolome v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf
The Ninth Circuit has determined that when the Board of Immigration Appeals (BIA) dismisses the appeal of a negative reasonable fear determination by an Immigration Judge, even when the dismissal is on jurisdictional grounds, that decision qualifies as a final order of removal for appellate jurisdictional purposes. As such, so long as the petition for review is filed within 30 days of the BIA's decision, the federal appeals court has jurisdiction to review the decision.
The full text of Martinez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/12/14-70339.pdf
The Ninth Circuit took jurisdiction over an appeal of a negative reasonable fear finding, even though the petition for review as filed more than 30 days after the Immigration Judge's order. In so doing, the Court noted the extremely complicated legal landscape that governs jurisdiction over review of negative reasonable fear determinations.
"The agency regulation relied on by the government states that no appeal shall lie from the immigration judge’s decision after an immigration judge concurs with the determination from the asylum officer finding no reasonable fear of torture or persecution. If Martinez had taken the regulation at face value, he might reasonably have thought that the IJ decision was not subject to review—either through an appeal to the BIA or through a petition for review by this court.
This reading would have been inaccurate in light of the statute that confers jurisdiction over final orders of removal on this court. But looking to the statutes still would not have helped Martinez because a plain reading of the relevant provisions would have suggested that his administrative case would only become “final” when the BIA issued its decision or when the time when he was permitted to file such an appeal had passed.
Likewise, thoroughly reading the materials that the BIA made available to Martinez—in particular the BIA Practice Manual to which he was directed by the BIA filing receipt—would have revealed that the BIA generally has the authority to review appeals from decisions of Immigration Judges pertaining to the Convention Against Torture. And if Martinez continued reading the BIA Manual, he would have discovered that reasonable fear determinations by immigration judges did not appear on a list of issues over which the BIA did not have jurisdiction.
The BIA’s own filing receipt could have added to the confusion Martinez faced by stating that if you leave the United States after filing this appeal but before the Board issues a decision your appeal will be considered withdrawn and the Immigration Judge’s decision will become final as if no appeal had been taken, leaving a strong impression that the IJ’s decision was not currently final."
The Court again urged the BIA to develop a streamlined mechanism for dismissing reasonable fear appeals over which it has jurisdiction, so as to avoid late-filed petitions for review.
The full text of Martinez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/20/14-70339.pdf
The Ninth Circuit has determined that it will review the agency's finding that a non-citizen does not have a reasonable fear of future persecution or torture for substantial evidence.
The full text of Andrade-Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/29/13-74115.pdf
