Diaz-Rivas v. U.S. Att’y Gen., 11th Cir., 04-18-19, unpublished, Jordan, Circuit Judge, concurring and dissenting
Here’s Judge Jordan’s separate concurring and dissenting opinion:
I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
Case: 17-14847 Date Filed: 04/18/2019 Page: 20 of 42
that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
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‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22Case: 17-14847 Date Filed: 04/18/2019 Page: 23 of 42
even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
23I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
Case: 17-14847 Date Filed: 04/18/2019 Page: 20 of 42
that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
20Case: 17-14847 Date Filed: 04/18/2019 Page: 21 of 42
‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22Case: 17-14847 Date Filed: 04/18/2019 Page: 23 of 42
even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
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disappearance to the authorities. These events transpired quickly, as the brother-in- law refused to pay MS-13 sometime in March of 2015, he was “disappeared” around March 16, 2015, and the family reported his disappearance the very next day.
The BIA, in affirming the IJ’s determination that Ms. Diaz-Rivas failed to establish the required nexus between her persecution and family ties, determined that the predominant reason why MS-13 threatened Ms. Diaz-Rivas and her family was because they involved the authorities. But the BIA committed an error of law by failing to conduct a proper mixed-motive analysis. Based on my review of the record, there is no way to accurately determine which reason was more or less MS- 13’s motivation, and the “at least one central reason” standard does not require us— or Ms. Diaz-Rivas—to attempt such a futile endeavor. Again, Ms. Diaz-Rivas did not need to show that her kinship was MS-13’s primary or dominant motivation. See Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41. Because the BIA and IJ misapplied the relevant legal standard, I would reverse and remand for application of the correct standard.
A
Like the IJ and the BIA, the majority concludes that Ms. Diaz-Rivas’ family ties were not “central,” but it articulates a slightly different rationale. The majority rules that “central” means “essential,” and concludes that Ms. Diaz-Rivas’ family
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ties were not essential to her persecution because MS-13 would have persecuted her regardless of her family’s refusal to pay rents due to the fact she reported her brother- in-law’s disappearance to the authorities. See Maj. Op. at 12–13. As I read its opinion, the majority essentially creates a rule that, if an unprotected ground would have been independently sufficient to instigate the applicant’s persecution, then the protected reason claimed by the applicant cannot be “central.” The majority cites no authorities to support such a rule, and the case it does rely on does not even interpret the “at least one central reason” standard. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007).
On its face, the majority’s rule replaces the phrase “at least one central” in the statute with the word “essential.” See Maj. Op. 11. In doing so, the majority relies on the fact that Ms. Diaz-Rivas used the word “essential” in her reply brief. Id. But we are not bound by a party’s concession in our interpretation of a statute. See Massachusetts v. United States, 333 U.S. 611, 624–25 & n.23 (1948). That is because “[w]e do not cede our authority to interpret statutes to the parties or their attorneys.” See Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1255 (11th Cir. 2015) (Ed Carnes, C.J., dissenting). For example, the majority’s interpretation of the “at least one central reason” may not apply to a future litigant who clearly articulates that “essential” is merely a synonym for “central” and not a wholesale replacement for the standard. I agree that synonyms can be helpful in understanding
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the terms in a statute, but if Congress intended for us to consider whether an unprotected reason would have independently caused the applicant’s persecution, it could have (and, I submit, would have) used the term “essential.” It did not. Just as we do not “soften the import of Congress’ chosen words even if we believe the words lead to a harsh outcome,” we should not exchange Congress’ chosen words when the text is actually beneficial to the litigant. See Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004).
Barring an applicant from protection based on the existence of an unprotected ground takes the statute’s “at least one central reason” standard and recasts it into a “the central reason” standard. See Acharya, 761 F.3d at 299. In practice, the majority’s proposal requires the applicant to show that the protected reason is the persecutor’s “primary” or “dominant” reason. Both of these are improper. See id.; Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41.
B
The Fourth Circuit, in multiple cases, has considered whether family ties were “at least one central reason” for MS-13’s decision to persecute an applicant. These cases include Salgado-Sosa v. Sessions, 882 F.3d 451, 457–59 (4th Cir. 2018); Zavaleta-Policiano, 873 F.3d at 247–49; Cordova v. Holder, 759 F.3d 332, 339–40
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(4th Cir. 2014); and Crespin-Valladares v. Holder, 632 F.3d 117, 127–28 (4th Cir. 2011). See also Hernandez-Avalos, 784 F.3d at 949 (concerning the “Mara 18” gang). These decisions run contrary to the majority’s analysis here.
For example, in Salgado-Sosa, 882 F.3d at 457–59, the Fourth Circuit reviewed the BIA’s determination that the applicant’s family ties were not a central reason for his persecution. There, the applicant and his family refused to pay MS- 13’s “war tax,” causing the gang to attack the family. See id. at 454. The applicant and his stepfather reported one attack to the police and later testified against the gang. See id. In retaliation, the gang attacked the applicant’s family home and the family fought back, injuring at least one of the gang members. See id. The IJ concluded, and the BIA affirmed, that the gang was motivated by the applicant refusing to pay the tax and taking action against the gang, as opposed to his family ties. See id. at 455–456. The Fourth Circuit reversed. Although informing the police, testifying, and fighting back against MS-13 were among the motives to persecute the applicant, the Fourth Circuit concluded that “[t]he record compels the conclusion that at least one central reason for [the applicant’s] persecution is membership in his family[.]” Id. at 453, 457–58. In my mind, Salgado-Sosa is virtually indistinguishable from the facts here, and I would follow it. See also Crespin-Valladares, 632 F.3d at 127 (holding that the BIA erred by concluding that
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the applicant’s relation to a witness who testified against MS-13 was not a central reason because the gang was also motivated by the applicant’s own testimony).
In Hernandez-Avalos, 784 F.3d at 947, the applicant applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. The BIA found that her relationship with her son was not a central reason the gang persecuted her, and that she was threatened “because she would not consent to her son engaging in a criminal activity.” Id. at 949. The Fourth Circuit rejected the BIA’s “excessively narrow reading” of the standard and said that it relied on “a meaningless distinction under the facts.” Id. at 949, 950. It then concluded that the applicant satisfied the nexus requirement because her relation to her son was at least one of “multiple central reasons for the threats [she] received.” Id. at 950 (emphasis added). See also Cordova, 759 F.3d at 339–40.
Cases applying the “at least one central reason” standard to other protected grounds similarly contradict the majority’s interpretation. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (sexual orientation); Oliva, 807 F.3d at 58, 60–61 (moral and religious beliefs); Castro v. Holder, 597 F.3d 93, 100–01 (2d Cir. 2010) (political opinion); De Brenner, 388 F.3d at 635–37 (political opinion). In these cases, our sister circuits ruled that the existence of an unprotected ground “would not be conclusive[.]” Castro, 597 F.3d at 103. That is because an
applicant “need only demonstrate that [her protected reason] was ‘at least one central 28Case: 17-14847 Date Filed: 04/18/2019 Page: 29 of 42
reason’ for the abuse; [s]he need not show it was the only reason.” Bringas- Rodriguez, 850 F.3d at 1073.
In all of these cases, the IJ and/or BIA pointed to one or more unprotected reasons why the applicant was persecuted, and in all of these cases, our sister circuits concluded that the IJ and/or BIA interpreted the “at least one central reason” standard too narrowly. The same result, I believe, is warranted here. The majority’s view is irreconcilable with the principles that a protected reason can be one of multiple central reasons and that the existence of an unprotected motive does not preclude the applicant from showing that the protected ground was also central. See, e.g., Hernandez-Avalos, 784 F.3d at 950 (citing Cordova, 759 F.3d at 339).
C
The majority, like the IJ and the BIA, goes to great lengths to assert that Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance was the central reason she was persecuted. See Maj. Op. at 12–14. This misses the point. The text of § 1158(b)(1)(B)(i) compels us to recognize that the existence of an unprotected central reason does not defeat her claim because a second central reason may justify asylum. “When an asylum-seeker claims that a persecutor had multiple motivations, only some of which are based on protected grounds, the immigration judge cannot merely attribute the persecution to a non-protected ground.” Gomez-Rivera v.
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Sessions, 897 F.3d 995, 1000 (8th Cir. 2018) (Kelly, J., dissenting) (citing Marroquin-Ochoma, 574 F.3d at 577). “Rather, it remains necessary to carefully examine the record to determine whether the evidence shows that the persecution also occurred on account of a protected ground.” De Brenner, 388 F.3d at 636.
There is some support for considering whether a particular motive was an independently sufficient reason, but only as applied to the protected reason claimed by the applicant—not to the unprotected one. In Parussimova, 555 F.3d at 741, the Ninth Circuit ruled that a reason is central if (a) “the persecutor would not have harmed the applicant if such motive did not exist,” or (b) “that motive, standing alone, would have led the persecutor to harm the applicant.” The majority cites only the initial portion of the Ninth Circuit’s disjunctive standard, reasoning that MS-13 would have still retaliated against Ms. Diaz-Rivas for her reporting her brother-in- law’s disappearance absent her family ties, but it ignores the second. See Maj. Op. at 11. In addition to not being faithful to what Parussimova held, the majority’s approach fails both in practice and in theory.
First, MS-13 would not have targeted Ms. Diaz-Rivas, for either reason, absent her family ties because she would not have reported her brother-in-law missing absent those family ties. Take Temu v. Holder, 740 F.3d 887, 891–92 (4th Cir. 2014), where the BIA had concluded that the applicant was beaten not due to
his mental illness, but as a result of erratic behavior caused by his mental illness. 30Case: 17-14847 Date Filed: 04/18/2019 Page: 31 of 42
The Fourth Circuit reversed, saying that it “struggle[d] to see how a rational factfinder” could reach that conclusion, and that the BIA’s reasoning “demand[ed] logical acrobatics.” Id. at 892. Citing Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance, while discounting the causal relationship between her kinship and that decision, takes an “overly restrictive view of [Ms. Diaz-Rivas’] case.” Oliva, 807 F.3d at 59 (“A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent.”). See also De Brenner, 388 F.3d at 637 (highlighting the BIA’s failure to acknowledge the causal relationship between the protected ground and the unprotected ground); Hernandez-Avalos, 784 F.3d at 950 (same).
Second, the majority fails to consider evidence in the record when it suggests that Ms. Diaz-Rivas never “stat[ed] that her familial connection also mattered to the gang.” See Maj. Op. at 14. During her credible fear interview, Ms. Diaz-Rivas stated that she was being persecuted by MS-13 based on her family ties before she went to the authorities. Specifically, the interviewer asked Ms. Diaz-Rivas whether MS-13 “became upset with your family after you asked for protection from the military.” Ms. Diaz-Rivas responded: “Yes.” The interviewer then clarified by asking: “Was [MS-13] upset with your family once they found out that you had contacted the family [sic] or were they unhappy with you even before that?” Ms. Diaz-Rivas responded: “No, they already were [mad] because they wanted more and
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more rent.” This testimony is supported by the undisputed fact that MS-13 “disappeared” Ms. Diaz-Rivas’ brother-in-law for refusing to pay rents before there was any motive to retaliate against the family for involving the authorities. I note that Ms. Diaz-Rivas also called an expert witness to testify that her family’s refusal to pay rents, apart from going to the authorities, put her at risk of persecution. See W.G.A. v. Sessions, 900 F.3d 957, 966 (7th Cir. 2018) (citing the “timing of the persecution” and expert reports to conclude that the applicant met the nexus requirement). This evidence strongly suggests that “[Ms. Diaz-Rivas’ family ties], standing alone, would have led [MS-13] to harm [her].” Parussimova, 555 F.3d at 741.
Ms. Diaz-Rivas’ statements and expert testimony, to my knowledge, are the only evidence in the record as to whether Ms. Diaz-Rivas would have been persecuted by MS-13 based only on her family ties. But that evidence is not mentioned or discussed, in that context, by the IJ or the BIA. Compare Zavaleta- Policiano, 873 F.3d at 248–49 (concluding that the BIA failed to address the applicant’s statement that MS–13 started threatening her immediately after her father fled to Mexico), with Gomez-Garcia v. Sessions, 861 F.3d 730, 734 (8th Cir. 2017) (affirming the BIA’s conclusion that the applicant’s political affiliation was not central because “[t]here [was] no evidence in the record that MS-13 threatened [the applicants] before they reported [the gang’s] burglary”).
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As the majority points out, we defer to the BIA’s interpretation of the facts, even if our own interpretation would support a different conclusion. We do not, however, defer to the agency’s determination that certain testimony did not warrant consideration. This is especially true if that testimony is the evidence in the record that the applicant’s alleged reason was central to her persecution. See W.G.A., 900 F.3d at 967; Zavaleta-Policiano, 873 F.3d at 248–49. It is our responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).
I also disagree with the majority’s repeated claim that, because MS-13 threatened Ms. Diaz-Rivas after she reported the disappearance, we can necessarily infer that that is the reason that MS-13 persecuted her. See Maj. Op. at 12–13. With our standard of review in mind, the IJ and the BIA did not cite the fact that MS-13 only threatened Ms. Diaz-Rivas after she reported her brother-in-law missing to conclude she did not meet the nexus requirement. Although the IJ and BIA noted the sequence of events leading to Ms. Diaz-Rivas’ claims, the majority now seizes on this undisputed chronological fact to support its new conclusion that Ms. Diaz- Rivas going to the authorities was the only central reason she was persecuted.
Moreover, the short timing between these events makes it impossible to conclude that MS-13 was not also motivated by her family’s refusal to pay rents. In early March of 2015, Ms. Diaz-Rivas’ brother-in-law refused to pay rents, causing
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the gang to quickly threaten and disappear him, and Ms. Diaz-Rivas reported his disappearance the very next day. By comparison, the majority cites Rivera, 487 F.3d at 823, for its timing argument, but in that case the persecution occurred “several years . . . after [the persecutor] would have imputed [the applicant’s] political opinion.” And to the extent that the majority points to Ms. Diaz-Rivas’ “own failure to pay ‘rent’” as another reason why she was persecuted, that argument contradicts the record. See Maj. Op. at 13. The IJ’s order and Ms. Diaz-Rivas’ testimony make clear that Ms. Diaz-Rivas’ brother-in-law, the patriarch of the family, refused to pay rents to MS-13, and Ms. Diaz-Rivas alleges that she was persecuted because of her family’s refusal to pay rents. See A000387, A000391 (“In this case, the respondent was never asked to pay any extortion. The demand was made to Felix, who is respondent’s brother-in-law.”). See also A000089, A000434.
For these reasons, I would hold that the BIA’s determination—that “[t]here is no indication [that MS–13] had an animus against [Ms. Diaz-Rivas] and her family members based on their biological ties, historical status, or other features unique to the family unit”—misapplies the “at least one central reason” standard and is not based on substantial evidence. I would therefore reverse the BIA’s determination that Ms. Diaz-Rivas’ family ties were not at least one central reason for her
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persecution and remand the case for the BIA to determine whether her family unit is a “particular social group” under the statute.1
III
Ms. Diaz-Rivas also contends that the Atlanta immigration court treats asylum claims dissimilarly compared to immigration courts around the country, in violation of her equal protection rights under the Fifth Amendment. Ms. Diaz-Rivas raised the same equal protection claim before the BIA, but the BIA dismissed it, stating that it “lack[ed] the authority to consider [it].” The BIA cited Matter of C-, 20 I. & N. Dec. 529, 532 (1992), where it ruled that an IJ and the BIA “lack jurisdiction to rule upon the constitutionality of the [Immigration and Nationality] Act and the regulations.” See also Johnson v. Robinson, 415 U.S. 361, 368 (1974) (noting “the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies”) (alteration omitted).
1 The majority notes that I do not resolve whether Ms. Diaz-Rivas’ family constitutes a “particular social group.” See Maj. Op. at 10 n.3. It seems to me that this is the correct approach. Like other circuits that have faced this issue, I would remand it to the BIA. See Oliva, 807 F.3d at 62; Flores- Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (collecting cases where the BIA addressed whether family was a particular social group). In any event, “every circuit to have considered the question has held that family ties can provide a basis for asylum.” Crespin–Valladares, 632 F.3d at 125. See also Matter of L-E-A-, 27 I. & N. Dec. 40, 43 (BIA 2017) (citing cases from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits). So, if the majority is looking for legal guidance on this issue, there is plenty of it.
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The prohibition on Article I tribunals adjudicating the constitutionality of a congressional enactment does not bar consideration of Ms. Diaz-Rivas’ equal protection claim. Ms. Diaz-Rivas does not argue that a federal law is unconstitutional, but rather that a particular immigration court is unconstitutionally discriminating against asylum applicants in the way that it applies a federal law. See McGrath v. Weinberger, 541 F.2d 249, 251 (10th Cir. 1976) (“A fundamental distinction must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation . . . . We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation.”) (quoting 3 K. Davis, Administrative Law Treatise § 20.04, at 74 (1958)). See also Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136, 1139 (3d Cir. 1979) (concluding that an Article I review commission had jurisdiction to consider a motion to suppress under the Fourth Amendment “not by reviewing the constitutionality of its statute but by interpreting the statute and by applying constitutional principles to specific facts”).
Based on my understanding of the relevant law, there is no general prohibition on the BIA considering constitutional issues, apart from constitutional challenges to particular statutes which would raise separation of powers concerns. In fact, the BIA has ruled on similar constitutional challenges in the past. See Matter of Awadh, 15
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I. & N. Dec. 775, 777 (BIA 1976) (ruling on the respondent’s claim that an IJ enforced a statute discriminatorily, but stating that it lacked jurisdiction to consider the constitutionality of the same statute). And other BIA opinions suggest that it has jurisdiction to consider some equal protection claims. See In Re Salazar-Regino, 23 I. & N. Dec. 223, 231–32 (BIA 2002); In Re Delia Lazarte-Valverd, 21 I. & N. Dec. 214, 219–21 (BIA 1996) (Schmidt, Chairman, concurring); Matter of Moreira, 17 I. & N. Dec. 370, 373 (BIA 1980); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). See also Matter of Gutierrez, 16 I. & N. Dec. 226, 227 (BIA 1977) (considering a Sixth Amendment claim).
In any event, we have jurisdiction to review constitutional claims raised during immigration proceedings. See 8 U.S.C. § 1252(a)(2)(D) (allowing the appropriate court of appeals to “review [ ] constitutional claims or questions of law raised upon a petition for review”); Moore v. Ashcroft, 251 F.3d 919, 923–24 (11th Cir. 2001) (considering an equal protection claim on appeal from the BIA). On appeal, Ms. Diaz-Rivas requests that we remand her asylum claims to the immigration court in San Francisco, California, where her attorneys are located. Although I do not believe we have ordered or encouraged the BIA to remand a case to another immigration court, at least one court has afforded similar relief. See Floroiu v. Gonzalez, 481 F.3d 970, 976 (7th Cir. 2007) (per curiam) (“strongly encourag[ing] the BIA to assign the [applicants’] case to a different judge on
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remand”); 28 U.S.C. § 2106 (granting appellate courts the power to “require such further proceedings to be had as may be just under the circumstances”).2
The due-process clause of the Fifth Amendment contains an implied equal protection component that prevents federal government officials from acting with discriminatory animus. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). “The constitutional guarantee of equal protection under the law has been held applicable to aliens as well as citizens for over a century.” Yeung v. I.N.S., 76 F.3d 337, 339 (11th Cir. 1995), as modified on reh’g (11th Cir. 1996) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886)). See also Plyler v. Doe, 457 U.S. 202, 210 (1982)
2 Another avenue for relief may be for Ms. Diaz-Rivas to file an action in an appropriate federal district court. For example, 5 U.S.C. § 702—a provision of the Administrative Procedure Act— provides that “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof, and [a]n action in a court of the United States seeking relief other than money damages and stating a claim” is not barred by sovereign immunity. A separate provision of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity[.]” § 706(2)(B). District courts have considered similar constitutional claims as violations of these provisions. See Stevens v. Holder, 950 F. Supp. 2d 1282, 1290–91 (N.D. Ga. 2013) (concluding that the plaintiff stated an equal protection claim based on an immigration judge excluding the plaintiff from certain hearings). See also CASA de Md., Inc. v. Trump, — F. Supp. 3d —, 2018 WL 6192367, at *1 (D. Md. Nov. 28, 2018) (claim that the government discriminatorily altered Temporary Protected Status designations, in violation of equal protection and the APA); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1092 (N.D. Cal. 2018) (same); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414 (D. Mass. 2018) (same). The possible existence of another avenue for relief, however, does not foreclose Ms. Diaz-Rivas’ current equal protection claim. In Babcock & Wilcox Co., 610 F.2d at 1136, for example, a party argued that an Article III court, as opposed to an Article I review commission, could better develop the factual record for a Fourth Amendment challenge to a search warrant. The Third Circuit disagreed, stating that the Article I commission could “consider motions to suppress evidence without acting beyond its jurisdiction.” Id. at 1139.
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(“[W]e have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.”). In this context, the Fifth Amendment protects an asylum applicant from “be[ing] intentionally treated differently from others similarly situated [when] there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
The majority concludes that Ms. Diaz-Rivas’ equal protection claim is foreclosed by binding precedent and that she failed to present evidence of discriminatory intent. I strongly disagree on both grounds: the precedent does not govern, and the evidence is more than sufficient.
First, the majority mistakenly relies on two published cases in which we have denied equal protection claims alleging that the Atlanta immigration court treated asylum applicants dissimilarly compared to other immigration courts. See Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218–19 (11th Cir. 2006); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006). Those cases do not control. In Zafar, 461 F.3d at 1367, we affirmed the dismissal of the petitioner’s claim that the Atlanta immigration court failed to administratively close certain immigration proceedings, when other immigration courts routinely did. We reasoned that the petitioner cited no authority to establish an equal protection violation and that there
was “no support in the record” for his argument. Id. A year later, in Haswannee, 39Case: 17-14847 Date Filed: 04/18/2019 Page: 40 of 42
471 F.3d at 1218–19, we rejected an almost identical claim for the same reasons, citing our holding in Zafar.
Unlike the petitioners in Haswanee and Zafar, Ms. Diaz-Rivas has cited authority, outlined the relevant legal framework, and presented evidence to establish her equal protection claim. She alleged that (a) asylum applicants are treated differently at the Atlanta immigration court compared to immigration courts in other cities, and (b) the difference in treatment is for the purpose of discrimination. Ms. Diaz-Rivas then presented statistics showing that, from 2014 through 2016, the Atlanta immigration court only granted 2% of asylum claims while, over the same three-year period, immigration courts around the U.S. collectively granted 46% of asylum claims. These statistics did not exist when we rejected different (and conclusory) claims in Haswannee, 471 F.3d at 1218–19, and Zafar, 461 F.3d at 1367. That, by itself, makes Haswanee and Zafar distinguishable.
Second, Ms. Diaz-Rivas’ statistics constitute probative evidence of disparate treatment and discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 297–98 (1987); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977). “Of course, statistics do not tell the whole story.” United States v. City of Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980). “Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers [may]
afford at best an incomplete picture.” Harris v. Alabama, 513 U.S. 504, 513 (1995). 40Case: 17-14847 Date Filed: 04/18/2019 Page: 41 of 42
But “while statistics alone usually cannot establish intentional discrimination, under certain limited circumstances they might.” Spencer v. Zant, 715 F.2d 1562, 1581 (11th Cir. 1983). See also Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982). “Sometimes a clear pattern, unexplainable on grounds other than [discrimination], emerges from the effect of the [government] action even when the governing legislation appears neutral on its face.” Arlington Heights, 429 U.S. at 266. In those cases, statistics showing discriminatory treatment can be “a telltale sign of purposeful discrimination.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977).
In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.
The government may well be able to explain why asylum applicants so rarely succeed in Atlanta, and, because undocumented immigrants are not a suspect class, any disparate treatment “[is] subject to minimal scrutiny under the rational basis standard of review.” Yeung, 76 F.3d at 339. At this stage, however, I am not aware
of a convincing basis to explain the disparity that Ms. Diaz-Rivas presents, and the 41Case: 17-14847 Date Filed: 04/18/2019 Page: 42 of 42
government has not offered one. At the very least, these troubling statistics “indicate plainly enough that this Court should not accept,” United States v. Bethlehem Steel Corp., 315 U.S. 289, 333 (1942) (Frankfurter, J., dissenting), the government’s conclusory argument that this disparity merely results from “the inherent human biases of all judges.” Appellee’s Br. at 36. I add that, even if the government’s unsupported suggestion has a hint of truth, the situation remains deeply troubling, as it would appear that the immigration judges in Atlanta are inherently biased (the government’s phrasing) against asylum applicants in the same way.
On remand, I would order the BIA to consider the merits of Ms. Diaz-Rivas’ equal protection claim or further justify its conclusion that it lacks the jurisdiction to do so. To do otherwise is to ignore the very real possibility that “[a]ll is not well” in the Atlanta immigration court. William Shakespeare, Hamlet, Act I, Scene 2, Line 254 (1601).
IV
With respect, I dissent from the majority’s interpretation of the “at least one central reason” standard and its resolution of Ms. Diaz-Rivas’ equal protection claim.
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In truth, this well-documented family-based persecution case should have been granted and probably would have been granted in many Immigration Courts. But, instead of being granted the protection she deserved, this respondent was subjected to the notorious “asylum free zone” created by the judges of the Atlanta Immigration Court, enabled by the BIA, promoted by the DOJ, and encouraged and empowered by some Article III Circuit Judges.
As cogently pointed out by Judge Jordan, his colleagues 1) grossly misconstrued and rewrote the “one central reason” provision of the asylum statute against the respondent, and 2) swept under the carpet the glaring evidence of constitutional violations of equal protection by EOIR, the Atlanta Immigration Court, the BIA, and the DOJ. To make matters worse, instead of taking the bold public action necessary to stop these outrageous legal and constitutional abuses, the majority made this an “unpublished” decision to obscure the unseemly evidence of what they were doing.
Significantly, in his footnote 2, Judge Jordan points out that there could be other means of challenging the Atlanta Immigration Court’s unconstitutional actions: through an APA action in U.S. District Court. Advocates should vigorously pursue all possible avenues to bring an end to this well-documented abuse of authority in Atlanta (and some other Immigration Courts with asylum grant rates so unrealistically low as to show a pattern of anti-asylum bias.)
And what is the purpose of the BIA if it fails to address chronic “refugee roulette” and unconstitutional behavior by Immigration Judges? Not much that I can see!
Might as well save time and money and just send all appeals from Immigration Judges to the U.S. Circuit Courts of Appeal. End the charade that the BIA is some sort of “expert tribunal” whose decisions are entitled to “deference.” Obviously, Judge Jordan understands immigration and constitutional law much better than the BIA (and his colleagues in the majority) and has the courage to speak out against glaring judicial abuses and lack of professionalism among some Immigration Judges that the BIA tolerates and the DOJ actively encourages.
The majority’s clearly flawed decision could be a “death warrant” for an innocent woman entitled to our protection. Worse yet, miscarriages of justice such as this directed against vulnerable asylum seekers go on every day at every level of our justice system. They advance the Administration’s “Big Lie”– that most asylum seekers from the Northern Triangle do not have valid claims for asylum. To the contrary, many of the claims are valid — but, the judicial system for adjudicating them is not valid — it isn’t fair, and it isn’t impartial as this case well illustrates.
Under a fair, impartial, and objective judicial system, many more claims like this from the Northern Triangle would be granted — perhaps a majority. But we can’t tell because the current system is so unfairly biased against asylum seekers. There is no doubt that there would be more grants than are happening today.
Indeed, many observers are failing to ask the real questions — with conditions for refugees worsening throughout the world, why are U.S. asylum grant rates inexplicably falling? Why are such a low percentage of individuals determined to have “credible fear” of persecution eventually granted asylum by Immigration Judges?
Rather than the bogus narratives being presented by the Administration and repeated by folks like Senator Ron Johnson (R-WI) that the system is being “gamed” by asylum seekers, there appears to be a much more reasonable explanation — that the EOIR system has been “gamed” by anti-asylum politicos in this and previous Administrations to artificially and illegally suppress asylum grant rates by Immigration Judges particularly for women, children, and other vulnerable individuals from the Northern Triangle.
Cases like Ms. Diaz-Rivas’s are actually fairly common. Granting them in accordance with law would send the proper signals and would actually lead to a fairer and more efficient system where asylum law would be correctly applied and many more cases could be granted by Asylum Officers without ever reaching Immigration Court or granted in short hearings before Immigration Judges actually committed to giving asylum seekers a fair shake.
Beneath all of the intentionally cruel and unnecessary detention, coercion, deprivation of counsel, hate narratives, and failures of due process and professionalism in our treatment of asylum seekers lies an even uglier truth: judges at all levels of our system, often at the urging of political officials, are encouraged and enabled to skew, misinterpret, and misapply the law and often distort facts to deny protection that should be granted in a fair and impartial system.
It’s important that cases like this one be “brought into the light” and that judicial abdications of duty be documented. The New Due Process Army is making the historical record of how asylum seekers are being mistreated and will keep confronting judges and legislators with the facts, evidence, and the law until the system finally delivers on its unfulfilled promise “of guaranteeing fairness and Due Process for all” — and that means granting legal protection to even the most vulnerable and endangered among us! The only question is how many innocents will die, be raped, beaten, tortured, extorted, exploited, imprisoned, forced to live underground, or otherwise persecuted and abused before our system finally gets it right?
PWS
04-20-19
