Orellana v. Barr, 4th Cir., 04-23-19, published
PANEL: MOTZ, KING, and WYNN, Circuit Judges
OPINION BY: JUDGE MOTZ
KEY QUOTE:
In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.
Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.
First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,
3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.
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Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.
The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”
Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).
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The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.
Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.
First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.
Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11
cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.
Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.
Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from
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dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4
We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.
We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.
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- This case is a great illustration of my speech to FBA Austin about the biased, sloppy, anti-asylum decision-making that infects EOIR asylum decisions for the Northern Triangle, particularly for women who suffered persecution in the form of domestic violence. See “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“
- The respondent’s evidence of “unwilling or unable to protect” was compelling, comprehensive, and uncontested. In cases such as this, where past harm rising to the level of persecution on account of a protected ground has already occurred, the “real courts” should establish and enforce a “rebuttable presumption” that the government is unwilling or unable to protect and shift the burden of proving otherwise where it belongs — to the DHS. See https://immigrationcourtside.com/2019/04/25/law-you-can-use-as-6th-cir-veers-off-course-to-deny-asylum-to-refugee-who-suffered-grotesque-past-persecution-hon-jeffrey-chase-has-a-better-idea-for-an-approach-to-unwilling-or-unable-to/ LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!
- This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years. It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
- However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
- Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even if the respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
- To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
- Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
- This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
- Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
- The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
- Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
- We don’t need a change in asylum law. We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
- That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
- While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
- It’s welcome to get a correct published analysis from an Article III.
- But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
- Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
- That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
- And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
- Due Process Forever; complicity in the face of “malicious incompetence,” never!
PWS
05-25-19