"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”
Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:
Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.
H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.
Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.
The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.
Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!
Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges
POOLER, Circuit Judge, dissenting:
2 Standards matter. A standard of review is the essential mechanism that
3 defines an appellate court’s proper role in reviewing the record presented. All
4 appellate courts must adhere to the proper standard of review. The Board of
5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA
6 applied a standard that substantially deviated from the clear error standard and
7 improperly made factual findings that contradicted those made by the
8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is
9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108
10 (2d Cir. 2010). Accordingly, I respectfully dissent.
11 This Court lacks jurisdiction to review purely discretionary decisions by
12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over
13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d
14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will
15 not engage in de novo review of findings of fact determined by an immigration
16 judge. Facts determined by the immigration judge, including findings as to the
17 credibility of testimony, shall be reviewed only to determine whether the
18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §
1
1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8
2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]
3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also
4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will
5 vacate BIA decisions “that result from flawed reasoning or the application of
6 improper legal standards”). Though the BIA “may review questions of law” and
7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred
8 from “engag[ing] in factfinding in the course of deciding cases” aside from
9 taking “administrative notice of facts that are not reasonably subject to dispute,”
10 § 1003.1(d)(3)(iv)(A).
11 Here, the BIA recited the precise legal standard at the beginning of its May
12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply
13 “rely on the Board’s invocation of the clear error standard; rather, when the issue
14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed
15 the clear error standard or engaged in improper de novo review of the IJ’s factual
16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.
17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that
18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]
2
1 failed to apply this deferential standard of review”). Despite its invocation of the
2 clear error standard, the BIA did not ultimately apply this standard of review to
3 Oscar Hernandez’s case. Merely reciting the standard does not transform the
4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip
5 service should not suffice.
6 The majority opinion characterizes the BIA’s impermissible factfinding as a
7 simple “de novo reweighing of the equities based on the facts found by the IJ.”
8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as
9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and
10 substituted the facts found by the IJ with its own factual findings. If the BIA
11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”
12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).
13 The BIA completely disregarded the IJ’s credibility determination when it
14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]
15 explanation convincing” regarding the circumstances of his 2016 arrest. Special
16 App’x at 10. This divergence in characterization of the 2016 incident was central
17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”
18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the
3
1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s
2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an
3 unconvincing distinction. Next, the majority suggests the BIA doubted that
4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.
5 Id. at 12. That clarification, however, does not do much to support the majority’s
6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a
7 favorable exercise of discretion was premised on its factual determination that he
8 had “continued to engage in violent behavior” following his first arrest and
9 conviction in 2009. Special App’x at 10. The only evidence cited for this
10 determination was that Hernandez’s “most recent arrest in 2016 . . . included
11 abusive behavior toward his spouse”—a characterization directly at odds with
12 the IJ’s findings. Special App’x at 10.
. . . .
*******************************
You can read the full decision, including Judge Poolers’ full dissent, at the link.
As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).
Thanks to Dan Kowalski over at LexisNexis for passing this along.
