From Dan Kowalski @ LexisNexis:
En Banc CA1 Credibility Remand: Diaz Ortiz v. Garland
“Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The Immigration Judge’s (“IJ”) rejection of Diaz Ortiz’s petition for relief rested on an adverse credibility determination that primarily drew its support from a “Gang Assessment Database.” Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment — and, in turn, the rejection of Diaz Ortiz’s request for relief — is not supported by substantial evidence. Accordingly, we grant the petition for review and remand for new immigration proceedings.”
[Hats way off to Kristin Beale, Ph.D., Ellen Scordino and Sameer Ahmed!]
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And here’s one sent in by Round Table leader and scholarly blogger Judge “Sir Jeffrey” S. Chase:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110629330.pdf0
Takwi v. Garland, 10th Cir., 01-10-22, published
Nkemchap Nelvis Takwi seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order entered by an Immigration Judge (IJ) and denying his motion to remand. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition for review. We remand this matter to the BIA because the IJ did not make an explicit adverse credibility determination, and the BIA did not afford Mr. Takwi the required rebuttable presumption of credibility.
Just for a good measure, the 9th Circuit also “busted” Garland’s BIA on an agfel issue:
CA9 on AgFel: Togonon v. Garland
“Petitioner Longinos Togonon, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 2013. In 2015, he was convicted of arson in violation of California Penal Code § 451(b) and sentenced to three years of imprisonment. In 2018, the Department of Homeland Security initiated removal proceedings against Togonon, alleging (as relevant for our purposes) that his arson offense qualifies as an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The Immigration and Nationality Act defines the term “aggravated felony” to include “an offense described in” 18 U.S.C. § 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration Appeals (BIA) held that a conviction under California Penal Code § 451(b) is an offense described in 18 U.S.C. § 844(i) and that Togonon is therefore subject to removal from the United States. Reviewing that decision de novo, see Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we conclude that the BIA erred in so holding. We accordingly grant Togonon’s petition for review.”
[Hats off to pro bono publico appointed counsel Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP, Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher LLP, Palo Alto, California; Andrew T. Brown and Matt Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California!]
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The First Circuit decision was 4-3. It appears that the respondent’s lawyers, experts, and the majority did the careful, critical analysis that the BIA failed to perform. Even the dissenters, who got it wrong, appear to have spent more time and thought on this issue than Garland’s BIA.
The Tenth Circuit decision highlights “Basic Asylum 101” failures by both the IJ and the BIA. It’s not that hard to make a specific credibility finding in every case. I did it in every contested asylum case I heard over 13 years on the bench. Nor is applying the presumption of credibility on appeal profound.
I’ll concede that the 9th Circuit agfel issue was more tricky. But, the BIA’s practice of almost always going with the most expansive, pro-DHS interpretations of the agfel definition to maximize deportation and minimize relief doesn’t help.
Go NDPA!
🇺🇸Due Process Forever!
PWS
01-12-22