Ninth Circuit Opines on Standards of Review in Asylum Cases

The Ninth Circuit has determined that the Board of Immigration Appeals must apply de novo review to the question of whether persecution will be inflicted on account of a protected ground.

Shoutout to Sabrina Damast (yes, I just gave myself a shoutout in the third person) and Jose Medrano for getting this published decision!

The full text of Umana-Escobar v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/17/19-70964.pdf

Amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/05/23/19-70964.pdf

Fourth Circuit Applies De Novo Review to Equitable Tolling

The Fourth Circuit has determined that “the BIA’s decision to deny equitable tolling presents a mixed question we must review de novo.” The court noted that a “noncitizen needs to act only with ‘reasonable,’ ‘not maximum feasible diligence.’” The court also noted that when a motion to reopen is based on a change in law (in this case, the Supreme Court’s decision in Dimaya), the diligence requirement begins no earlier than the change in law. But even then, the court must ask when the petitioner reasonably could have discovered the change in law, taking into account the petitioner’s financial circumstances and ability to access counsel.

“Still, he discovered his rights just one year after the Court enunciated them. Giving 'due consideration to the reality that many departed aliens are poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system, we hold Williams could not reasonably have been expected to have filed earlier.”

The full text of Williams v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201854.P.pdf

An amended opinion can be found here:

https://www.ca4.uscourts.gov/opinions/201854.p.pdf

Second Circuit Rules on Standard of Review for Corroboration Determinations

The Second Circuit has determined that the Board of Immigration Appeals reviews de novo an Immigration Judge’s determination that an applicant should provide corroborating evidence because it is not a factual finding. However, the subsequent determination as to whether an applicant does not have the evidence and cannot reasonably obtain the evidence is a factual finding that the BIA reviews only for clear error.

The full text of Pinel-Gomez v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/doc/19-3124_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/hilite/

First Circuit Finds BIA Applied Incorrect Standard in Discretionary Review

The First Circuit has determined that the Board of Immigration Appeals incorrectly altered an Immigration Judge’s factual findings related to discretion without applying clear error review. Specially, the judge determined that the applicant’s removal would cause extreme hardship to his father, while the Board noted only that hardship “may” occur. The Board reversed the positive discretionary finding made by the judge, and the First Circuit remanded because the Board did not explain why the judge’s predictive finding regarding hardship was clearly erroneous.

The full text of Barros v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1335P-01A.pdf

Fourth Circuit Addresses Reasonable Fear Determination Standards

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:

https://www.ca4.uscourts.gov/opinions/201201.P.pdf

CA App Ct Addresses Standard of Review of 1018 Motion

The CA Court of Appeals, Fourth District, has determined that abuse of discretion, not independent review, is the proper standard for reviewing the denial of a Penal Code section 1018 motion to vacate a guilty plea. Moving to the merits of the motion, the court held that a trial court’s warning that the immigration consequences in Penal Code section 1016.5 “will” attach, when coupled with a signed Tahl waiver form, does not necessarily defeat the motion.

“The only evidence Lopez had been told a guilty plea would result in deportation was the Tahl form itself. According to Lopez, the process of reviewing the Tahl form ‘took maybe five minutes.’ Trial counsel did not seem to know how long the process took, testifying both that it took ‘a minute or two’ and that it took ‘a while.’ There was no specific testimony that it took longer than the five minutes Lopez described to review the eight-page Tahl form. It also appears from the Tahl form that Lopez robotically initialed almost every line on it, including the prosecutor’s, the defense attorney’s, and the interpreter’s statements. (There was no interpreter used in this case.) It is at best unclear that Lopez read or understood what he was initialing. But even presuming he did, the Tahl form, as a ‘generic advisement’ of consequences, does not constitute a bar to relief.”

“The most important fact about the immigration paragraph of the Tahl form is that both trial counsel and Lopez agree there was no discussion of it.” “Trial counsel testified that he read the immigration portion verbatim from the form. He did not testify that he explained it or expanded on it, nor did he testify that he and the Lopez had any earlier meetings or phone calls to discuss the plea or its immigration consequences. This type of pro forma review does not satisfy section 1016.3, which requires not only accurate but also ‘affirmative advice’ about the immigration consequences of a proposed plea agreement.”

“The evidence before the trial court, based on trial counsel’s testimony, was that trial counsel did not know which of the charges against Lopez carried immigration consequences and what those consequences were.” “Trial counsel may have told Lopez ‘these charges are deportable’ without further specifics, testifying that was ‘generally what I would say.’ Trial counsel testified that he ‘wasn’t worried about the individual charges.’ But under the standard of ‘accurate and affirmative advice’ under section 1016.3, the consequences of each individual charge were highly relevant.” “Not only was trial counsel’s advice not accurate, it was either nonexistent or based on a misapprehension of the surrounding facts and law.”

The full text of People v. Lopez can be found here:

http://sos.metnews.com/sos.cgi?0721//G059146

Ninth Circuit Reverses CAT Denial

The Ninth Circuit has reversed the Board’s denial of CAT protection to an indigenous Mexican woman, finding that the Board reviewed the judge’s factual findings de novo, despite its invocation of the clear error standard. “The BIA disagreed with the IJ’s view of the evidence. But its only explanation of why the IJ’s decision was illogical, implausible, or without support was that ‘the IJ’ did not acknowledge that the Mexican judicial system took appropriate steps to correct any past due process errors committed by the officers of the Office of Anti-kidnapping and Extortions, that the respondent reported the torture and was not subsequently harmed or threatened while in custody for nearly 8 months, and that other members of her family have remained unharmed in Mexico.’ The BIA did not explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ. The BIA’s reasoning is therefore insufficient to demonstrate that the BIA engaged in clear error review.”

The full text of Soto-Soto v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/20-70587.pdf

Third Circuit Applies Substantial Evidence Review to Reasonable Fear Determination

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:

https://www2.ca3.uscourts.gov/opinarch/193550p.pdf

AG Issues New Decision on CAT Eligibility

The Attorney General has issued a new decision governing determinations under the Convention Against Torture. He has directed the Board to conduct a de novo review of whether the factual findings made by the Immigration Judge amount to the legal definition of torture. The Attorney General also affirmed that torture requires the specific intent to harm; the legal definition of torture does not include negligent conduct.

The full text of Matter of R-A-F can be found here:

https://www.justice.gov/eoir/page/file/1252416/download

Fourth Circuit Clarifies Standard of Review in CAT Cases

The Fourth Circuit has determined that whether “how public officials will likely act” qualifies as “acquiescence” under the Convention Against Torture regulations is a question fo law that must be reviewed de novo by the Board of Immigration Appeals.

The full text of Cruz-Quintanilla v. Whitaker can be found here:

http://www.ca4.uscourts.gov/Opinions/172404.P.pdf

Second Circuit Applies De Novo Review to Good Faith Marriage Waiver

The Second Circuit has determined that de novo review applies to the mixed question of law and fact of whether a petitioner has established that his marriage was entered into in good faith under 8 USC § 1186a(c)(4)(B). “Here, the established facts—subject to clear error review by the BIA—were that the couple married in Bangladesh in mid-2003, barely resided together during their marriage, divorced six 11 months after Alom’s entry to the United States in 2005, and had no children or demonstrable marital property. But the BIA failed to acknowledge the de novo standard applicable to the mixed question of whether the established facts were sufficient to establish a good faith marriage under § 1186a(c)(4)(B).”

The full text of Alom v. Whitaker can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/8/doc/17-2627_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/8/hilite/

Fifth Circuit Discusses Standard of Review for IAC and Equitable Tolling

The Fifth Circuit has determined that a request for equitable tolling, insofar as it is related to a claim of ineffective assistance of counsel, is a question of law over which it has jurisdiction even if a petitioner has been convicted of a controlled substance violation.  The Court noted that "[w]e assume that a valid claim of IAC would constitute an 'extraordinary circumstance [that] stood in his way and prevented timely filing.'”  

The full text of Diaz v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60230-CV0.pdf

CA Appeals Court Applies De Novo Review to PC 1473.7 Motion

The California Appeals Court, Second Appellate Division, has determined that it will review the denial of a motion to vacate under section 1473.7 with a de novo standard

"De novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant’s constitutional right. A defendant’s claim that he or she was deprived of the constitutional right to effective assistance of counsel presents a mixed question of fact and law, and we accordingly review such question independently. We accord deference to the trial court’s factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel’s deficient performance and resulting prejudice to the defendant. We apply this standard in reviewing the trial court’s order denying Ogunmowo’s motion to vacate his conviction under section 1473.7, in which he argued his conviction was legally invalid because his trial counsel rendered ineffective assistance by incorrectly advising him about the immigration consequences of his guilty plea, and he was prejudiced as a result."

The Court further found that Ogunmowo's counsel (Kaplan) had performed deficiently under prevailing norms in 1989.  "Affirmatively misadvising a client that he will not face immigration consequences as a result of a guilty plea in a drug trafficking case—when the law states otherwise—is objectively deficient performance under prevailing professional norms." 

With respect to prejudice, the Court noted that "contemporaneous evidence—Kaplan’s account of discussions that occurred at the time of the guilty plea—supports Ogunmowo’s assertion he would have rejected the plea deal if his attorney had not misadvised him about the immigration consequences of a conviction. His immigration status was such an important factor to him that he affirmatively sought his attorney’s counsel about immigration consequences before entering his guilty plea. The fact that the court advised Ogunmowo that immigration consequences arising from the guilty plea were possible does not preclude Ogunmowo from establishing that counsel’s incorrect advice prejudiced him.  The court’s warning, given just before the plea is taken, does not afford the same time for 'mature reflection’ as a private discussion with a defendant’s own counsel that incorporates the particular circumstances of the defendant’s case."

The full text of People v. Ogunmowo can be found here:

http://www.courts.ca.gov/opinions/documents/B283427.PDF

Fourth Circuit Address Proper Standard of Review for Good Faith Marriage Waiver

Upatcha received conditional residency through her marriage to a US citizen.  Their marriage subsequently ended in a divorce.  She applied for a waiver of the requirement of the joint petition to remove conditions on her residency, on the basis that her marriage was entered into good faith.  The Immigration Judge denied the waiver, finding that she did not enter into her marriage in good faith.  The Board of Immigration Appeals affirmed, finding no clear error in the Immigration Judge's decision.  The Fourth Circuit reversed, finding that the Board of Immigration Appeals should have applied a de novo standard of review to this question of law (i.e., whether the evidence in the record established a good faith marriage).  

The full text of Upatcha v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/151270.P.pdf

Fifth Circuit Determines the Appropriate Standard of Review for the Firm Resettlement Bar

The Fifth Circuit has determined that the proper standard of review to apply to the Board of Immigration Appeals' (Board) factual determination that an asylum applicant was firmly resettled in a third country is substantial evidence.  In the instant case, the petitioner did not meaningful contest the Immigration Judge's finding that she was firmly resettled in Mexico, but asserted that an exception to the firm resettlement bar applied in her case - namely, that she remained in Mexico only as a necessary consequence of her flight from Bolivia.  The agency disagreed, noting the length of her residency in Mexico, her travels in and out of Mexico, and her ability to work in Mexico.  As such, the court found that substantial evidence supported the conclusion that she was not in Mexico only as long as necessary to arrange onward travel.

The full text of Lara v. Lynch can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/15/15-60126-CV0.pdf

Board of Immigration Appeals Reviews Safeguards for Mentally Incompetent Individual

The Board of Immigration Appeals (Board) has determined that an Immigration Judge's determination as to what safeguards are necessary to protect the rights of a mentally incompetent individual in removal proceedings is a discretionary determination, and thus, subject to de novo review by the Board.  In the instant case, though the Immigration Judge was in receipt of a psychological evaluation noting that the appointment of counsel would not be a sufficient safeguard, the Board faulted the Judge for terminating proceedings, instead of appointing counsel and allowing counsel time to locate the individual's family and friends and attempt to obtain relevant information about his removability or eligibility for relief from them.

The full text of Matter of M-J-K- can be found here: 

https://www.justice.gov/eoir/file/871786/download

Ninth Circuit Addresses Standard of Review of Negative Reasonable Fear Finding

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

Seventh Circuit Remand Convention Against Torture Claim Because Board of Immigration Appeals Applied the Wrong Standard of Review

The likelihood that an applicant for protection under the Convention Against Torture (CAT) will be tortured in his home country is a factual one.  As such, the Board of Immigration Appeals (Board) may only review such a determination for clear error.  The clear error standard of review precludes the Board from simply reweighing the evidence to reverse the Immigration Judge.  Rather the Board "must find that, on balance, the weight of the evidence so strongly militates against the IJ’s finding that the BIA is left with the definite and firm conviction that a mistake has been committed.”  The Board must explain how the Immigration Judge clearly erred.  Because the Board engaged in de novo review and re-weighted the evidence, the Seventh Circuit remanded to allow the Board to review the Immigration Judge's decision for clear error.

The full text of Estrada-Martinez v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-31/C:15-1139:J:Hamilton:aut:T:fnOp:N:1680390:S:0

Ninth Circuit Defines Standards for Citizenship Trial in District Court

In an en banc decision, the Ninth Circuit confirmed that once a District Court finds that a litigant has adduced substantial credible evidence that he is a U.S. citizen, the burden shifts to the Government do demonstrate by clear and convincing evidence that the litigant is not a citizen.  On appeal, an appellate court will review the District Court's factual findings regard a litigant's citizenship for clear error.  In light of the contradictory evidence and credibility issues identified by the District Court, the Ninth Circuit deferred to its finding that Salvador Mondaca-Vega is not a citizen of the United States.

The full text of Mondaca-Vega v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/15/03-71369.pdf

Ninth Circuit Addresses the Intent of Participants in a Coup

Addressing the terrorist inadmissibility provision related to the use of firearms with intent to endanger another person, the court examined the actions of a person who planned a coup in the Philippines.  The Immigration Judge determined that the respondent did not have the requisite intent to endanger.  The Board of Immigration Appeals reversed  The Ninth Circuit assumed that the determination of intent would be a factual question, and thus, that the Board of Immigration Appeals was required to apply the clearly erroneous standard when reviewing the Immigration Judge's determination.  The court remanded to allow the Board of Immigrations to apply the proper standard.

The full text of Zumel v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/29/12-70724.pdf