Elmer Moran Romero v. Jefferson Sessions
691 F. App'x 491
9th Cir.2017Background
- Petitioner Elmer Efrain Moran Romero, a Salvadoran national, sought asylum, withholding of removal, and CAT protection; IJ denied relief and the BIA dismissed his appeal.
- Moran Romero filed asylum untimely; he argued changed or extraordinary circumstances excused the delay.
- He also asserted withholding of removal based on an imputed political opinion and sought CAT relief based on risk of torture by Salvadoran authorities or with their acquiescence.
- The BIA found his asylum untimely and rejected his withholding and CAT claims for lack of required nexus or likelihood of torture.
- The Ninth Circuit reviewed factual findings for substantial evidence and due process claims de novo; it denied asylum and CAT claims but remanded withholding of removal to consider intervening Ninth Circuit and BIA decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum application (excuse for untimely filing) | Moran Romero argued changed or extraordinary circumstances justified late asylum filing | Government maintained he failed to show circumstances that excuse untimely filing under regulations | Denied — record does not compel finding of excusing circumstances; asylum denied |
| Due process in BIA proceedings | Moran Romero argued BIA violated due process | Government argued no prejudicial error occurred | Denied — no reversible due process violation found |
| CAT relief (likelihood of torture by government or with consent/acquiescence) | Petitioner argued he would likely be tortured by Salvadoran government or with its acquiescence | Government argued petitioner failed to show likelihood of torture or government involvement/acquiescence | Denied — substantial evidence supports BIA’s finding of no likelihood of torture |
| Withholding of removal — nexus to protected ground (imputed political opinion) | Moran Romero contended he was targeted based on imputed political opinion (raised on appeal) | Government argued he failed to establish nexus; also procedural default for issues not raised before agency | Partly dismissed/remanded — court lacked jurisdiction over issues not raised to agency; remanded to BIA/ IJ to consider impact of intervening Ninth Circuit/BIA decisions on nexus analysis |
Key Cases Cited
- Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008) (standard for reviewing asylum-timeliness excusing circumstances)
- Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) (de novo review for due process claims)
- Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (requiring prejudice to prevail on due process claim)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (CAT standard re: likelihood of torture and government acquiescence)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (jurisdictional bar where issues not raised before agency)
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (nexus/imputed political opinion guidance)
- Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013) (nexus and persecution analysis)
- Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (nexus and imputed political opinion analysis)
- Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (persecution/nexus principles)
- INS v. Ventura, 537 U.S. 12 (2002) (remand when intervening decisions affect outcome)