HON. JEFFREY CHASE WITH SOME GREAT PRACTICAL ADVICE ON HOW YOU CAN MAKE THE 1ST CIRCUIT’S RECENT DECISION IN Aguilar-Escoto v. Sessions, No. 16-1090 (1st Cir. Oct. 27, 2017) “WORK FOR YOU!”

https://www.jeffreyschase.com/blog/2017/11/2/1st-cir-on-why-all-evidence-must-be-considered

1st Cir. on Why All Evidence Must Be Considered

In Aguilar-Escoto v. Sessions, No. 16-1090 (1st Cir. Oct. 27, 2017), the U.S. Court of Appeals for the First Circuit vacated the BIA’s erroneous decision affirming an immigration judge’s denial of withholding of removal.  The circuit court employed an interesting approach that lawyers and judges may wish to examine.

In Aguilar-Escoto, the Board upheld the immigration judge’s adverse credibility finding.  However, the petitioner also provided significant documentary evidence.  Although the IJ had considered and disposed of such evidence, the Board did not address it.  On appeal, the First Circuit adopted the view of the Eleventh Circuit in holding that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence…”  The court concluded that remand was required “irrespective of the supportability of the adverse credibility finding” in order for the Board to consider the previously neglected evidence.  However, the court reached such conclusion in an unusual way.

Although the IJ had correctly noted that the application was for withholding of removal, the Board carelessly stated that the petitioner “failed to meet her burden of proof for asylum.”  As those of us who practice in this field all know, asylum and withholding have different burdens of proof.  As the Board is fond of saying in its decisions, if the respondent did not meet her burden of proof for asylum, “it follows that she has not satisfied the more stringent burden that applies to withholding of removal.”  The Board used similar boilerplate in this case.

However, the circuit court here stated that in one way, the burden for asylum “may be more exacting.”  The court noted that asylum has a subjective and objective component: an applicant must establish both a genuine subjective fear, and then must show that such fear is objectively reasonable.  Although withholding of removal requires a much greater probability of harm (more than 50 percent, as opposed to the 10 percent needed for asylum), the court observed that the focus is entirely on the objective; i.e. there is no inquiry into the applicant’s own subjective fear.  In other words, asylum applicants must first convince the adjudicator that  they are genuinely afraid of being persecuted, and must then provide enough objective evidence to show that such fear is reasonable.  Withholding applicants must show through objective evidence that there is a greater than 50 percent chance that they will suffer persecution; their own fear is irrelevant to the inquiry.  The reason for this distinction is that asylum requires one to meet the statutory definition of “refugee,” which involves a “well-founded fear of persecution.”   Withholding of removal does not incorporate the refugee definition, but rather prohibits removal to a country where the Attorney General decides that the individual’s freedom would be threatened on account of a protected ground.  Thus, in asylum, the adjudicator is reviewing the reasonableness of the applicant’s own fear; in withholding of removal, the A.G. is the one determining the threat to safety.

The First Circuit explains the importance of this distinction: an adverse credibility finding impacts the genuineness of the applicant’s subjective fear.  However, it does not impact the independent objective evidence regarding the likelihood of the applicant suffering harm if returned to her country.  The court noted that in mistakenly thinking it was affirming a denial of asylum based on adverse credibility, the Board then added common boilerplate language that, since the applicant did not meet the lower burden required for asylum, it follows that she did not meet withholding’s higher burden.  But the court said that logic only applies where the subjective fear element is satisfied, but the claim was denied due to a failure to provide sufficient objective evidence to support such fear.  Here, as the adverse credibility finding precluded the petitioner from establishing a genuine subjective fear of persecution, the withholding of removal application required a separate inquiry as to whether the independent objective evidence was sufficient to establish the likelihood of persecution.  The record was therefore remanded for such inquiry.

To illustrate by way of example, let’s say an applicant applies for asylum and withholding based on her Christian religion.  The applicant claims to be afraid to return to her country because she received multiple threatening phone calls and letters referencing her religion.  The applicant also submits news articles and human rights reports detailing violent attacks on Christians in her hometown.  Now, let’s assume that the immigration judge believes that the respondent is in fact a practicing Christian.  However, the IJ concludes that the claimed threats lack credibility.  Asylum requires the applicant to first demonstrate a genuine subjective fear of persecution.  The respondent testified that her fear was based on the threats.  Under the First Circuit’s holding, if the IJ finds that the threats didn’t actually occur, the IJ can determine that the respondent did not establish a genuine fear of persecution.

However, what if the reports and articles believably establish that Christians run a high risk of being persecuted on account of their religion?  The IJ did believe that the respondent was in fact a practicing Christian.  According to the First Circuit, the IJ therefore just can’t dispose of the withholding claim by stating that the respondent didn’t meet the lower burden of proof for asylum, so therefore couldn’t have met the higher burden for withholding.  The IJ would instead have to apply a separate analysis as to whether the articles and reports independently establish that it is more likely than not the respondent would be persecuted on account of her religion if removed to her country.  If so, the respondent is entitled to withholding of removal (which is a non-discretionary form of relief).

Both immigration practitioners and government adjudicators should take note, and approach their arguments and drafting of decisions accordingly.  As an aside,  the nuances and degree of analysis that the circuit court’s decision requires of adjudicators underscores the danger of the Department of Justice’s stated intent to impose case completion quotas on immigration judges.  As my good friend and fellow blogger Paul Schmidt recently wrote on the topic (and as this case clearly illustrates), immigration judges are not piece workers, and fair court decisions are not widgets (well said, Paul!).

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

Thanks much for the “shout out” in your final sentence, Jeffrey!
Here’s a link to my previous blog on Aguilar-Escoto v. Sessions

1ST CIR. BOPS BIA’S BOILERPLATE DENIAL OF DOCUMENTED WITHHOLDING CLAIM – AGUILAR-ESCOTO V. SESSIONS!

1stCirAsy:WH16-1090P-01A

Aguilar-Escoto v. Sessions, 1st Cir., 10-27-17, published

PANEL: Howard, Chief Judge,Thompson and Kayatta, Circuit Judges.

OPINION BY: Chief Judge Howard

KEY QUOTE:

“We review the BIA’s legal conclusions de novo and its findings of fact under the “substantial evidence” standard, meaning that we will not disturb such findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of the record, we note that while the BIA need not “discuss every piece of evidence offered,” it is “required to consider all

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relevant evidence in the record.” Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008) (emphasis added). Consistent with this obligation, the Eleventh Circuit has specifically held that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence produced by” an applicant for relief. Hong Chen v. U.S. Att’y Gen., 231 F. App’x 900, 902 (11th Cir. 2007) (citing Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)). Rather, where the applicant provides evidence other than her own testimony, the agency “must consider that evidence” and may not “rely solely on an adverse credibility determination.” Forgue, 401 F.3d at 1287. According to the Eleventh Circuit, the agency’s failure to fulfill this duty is grounds for vacating the BIA decision, irrespective of the merits of the adverse credibility finding. See Toska v. U.S. Att’y Gen., 194 F. App’x 767, 768 (11th Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st Cir. 2013) (“[W]e will remand if the agency fails to state with sufficient particularity and clarity the reasons for denial of [relief] or otherwise to offer legally sufficient reasons for its decision.” (citation omitted)).

We agree with the Eleventh Circuit’s approach to this issue, which is consistent with our precedent. See Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009) (“An adverse credibility finding by itself would not automatically doom a claim for asylum.”). The appropriate result in this case follows easily.

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Even assuming that its credibility ruling was supportable, the BIA was required to go further and address whether, setting Aguilar’s testimony to one side, the documentary evidence entitled her to relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed, the IJ expressly recognized that this documentary evidence, if believed, was sufficient to establish multiple acts of domestic violence against Aguilar by her ex-husband. In these circumstances, the BIA’s failure to consider or even acknowledge the evidence requires remand. See Toska, 194 F. App’x at 768; Khattak, 704 F.3d at 208. We take no position on the merits of the IJ’s holding that the abuse reflected in the documentary evidence was not sufficiently severe to warrant relief. This issue is best left to be addressed by the BIA in the first instance.

We note, for the benefit of the agency on remand, that the Board’s failure to consider Aguilar’s documentary evidence may have been rooted in its fundamental misunderstanding of her claim. Again, the Board appears to have operated under the mistaken assumption that Aguilar had applied for asylum as well as withholding of removal. These two grounds for relief are not identical. For one thing, withholding of removal requires a higher likelihood of persecution than asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (noting that applicants for withholding must satisfy a “more likely than not” standard (citation omitted)). There is, however, a different sense in which

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the asylum standard may be more exacting. Withholding claims “lack a subjective component and are [thus] concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (explaining that the relevant statutory language “has no subjective component”). Asylum, by contrast, has both a subjective and an objective component: it requires a showing that the applicant “genuinely fears persecution,” in addition to proof that the “fear is objectively reasonable.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Applicants “typically” seek to establish the requisite “genuineness” through their “own credible testimony.” Id. at 80-81. An adverse credibility finding thus may prove fatal to this aspect of an asylum claim. But, because withholding of removal requires no such genuine belief, a withholding claim “may, in appropriate instances, be sustained” despite an adverse credibility finding. Paul, 444 F.3d at 156.

In the present case, the BIA may well have been justified in concluding that, absent her own credible testimony, Aguilar failed to establish a subjectively genuine fear that she would be persecuted upon returning to Honduras. This failure would doom an asylum claim notwithstanding additional evidence establishing that a reasonable person in Aguilar’s circumstances would have feared persecution. See Makhoul, 387 F.3d at 80-81. But, in the withholding context, the inquiry is a strictly objective one. See

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Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting Aguilar’s testimony, arguably the only evidence that she did in fact harbor a subjective fear of persecution, the BIA was nonetheless obliged to consider documentary evidence potentially capable of establishing her likelihood of suffering further abuse.

Rather than embarking on this objective assessment, the BIA fell back on the familiar refrain that, because “the applicant did not establish eligibility for asylum, it follows that she cannot establish eligibility for withholding of removal, which has a higher burden of proof.” Such a conclusion is unassailable where the applicant’s subjective fear is proven or assumed, and the denial of the asylum claim turns on the lack of evidence that the fear was objectively reasonable. See, e.g., Makhoul, 387 F.3d at 81. But the same is not necessarily true where an asylum claim fails due to a lack of credible testimony establishing the applicant’s subjective fear. The Board’s failure to apply the appropriate, purely objective standard to Aguilar’s withholding claim provides an independent basis for remand. See Kozak v. Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because “the BIA applied an inappropriate legal standard”); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding “to allow the matter to be considered anew under the proper legal standards”).

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III.
For the foregoing reasons, we VACATE the BIA’s order

dismissing Aguilar’s appeal and remand for further proceedings consistent with this opinion.”

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You can read the complete opinion at the link

This type of reversal does not involve a “Chevron-type” legal policy issue where the BIA and the Article IIIs might well reach different conclusions. Rather, this case is all about the BIA misapplying the “fundamental nuts and bolts” of credibility and withholding analysis in putting out a “boilerplate denial.” Why should the Article IIIs be finding “mechanical-analytical” issues that the expert BIA missed? Perhaps the EOIR system is “peddling too fast.” In that case, Sessions’s proposed “production quotas for judges” are the absolute worst thing that could happen to the Immigration Courts and Due Process.

Also, if the Article IIIs are better than the BIA at the basics of immigration and asylum law, why shouldn’t the Article IIIs, not the BIA, be getting “Chevron deference?”