Irineo Cuenca Brito v. Merrick B. Garland, 40 F.4th 548

Irineo Cuenca Brito, a Mexican national, entered the U.S. unlawfully (pre-2013), was ordered removed in 2013, reentered before 2019, and faced a new removal proceeding in 2019.
Brito sought withholding of removal and deferral under the Convention Against Torture (CAT), testifying that Familia Michoacán cartel members abducted him in 2013, he escaped, and his home was ransacked; Dr. Harry Vanden testified as an expert on cartel threats and Mexican government acquiescence.
The immigration judge denied statutory withholding but granted CAT deferral, finding a substantial risk of torture and that Mexican authorities would acquiesce to harm.
The Board of Immigration Appeals (BIA) reversed, concluding the record lacked evidence that the cartel specifically identified or would target Brito, Dr. Vanden’s testimony was speculative, relocation within Mexico was plausible, and evidence of government acquiescence was generalized.
Brito challenged the BIA decision on three legal grounds: (1) improper standard of review / impermissible factfinding, (2) BIA lacked authority because two members allegedly served beyond their terms, and (3) BIA improperly accepted DHS’s untimely brief.
The Seventh Circuit majority denied Brito’s petition, finding no legal error; Judge Jackson-Akiwumi dissented as to the BIA’s cursory acceptance of DHS’s late brief and would remand on that ground.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA applied the correct standard (clear error) and improperly reweighed facts	Brito: BIA ignored clear-error standard and engaged in de novo factfinding reversing IJ credibility/ findings	BIA/DHS: Board stated and applied clear-error review, and reversal rested on speculation/lack of evidentiary support	Held: No error — BIA applied clear-error review and permissibly reversed where IJ’s findings rested on speculation
Whether the BIA panel lacked authority because two members served past 6-month terms	Brito: Two temporary members served beyond six months, so panel lacked lawful authority	DHS: Attorney General reappointed both for a second six-month period before appeal was decided	Held: No error — members were reappointed and had authority to act
Whether the BIA abused discretion by accepting DHS’s untimely brief without adequate explanation or evidence	Brito: DHS’s motion lacked required corroboration, ignored BIA Practice Manual rules, and BIA failed to meaningfully address opposing arguments	DHS/BIA: COVID-19, mail delays, and civil unrest justified excusing the late filing; BIA has discretion to accept late briefs	Held (majority): No abuse — regulations permit discretion to accept late briefs and BIA’s choice was lawful; (dissent) would remand for more reasoned explanation and adherence to BIA policies

Estrada-Martinez v. Lynch, 809 F.3d 886 (7th Cir. 2015) (explains limits on BIA reweighing evidence when professing to apply clear-error review)
Lenjinac v. Holder, 780 F.3d 852 (7th Cir. 2015) (review of whether BIA applied proper standard is legal question reviewed de novo)
Pyles v. Nwaobasi, 829 F.3d 860 (7th Cir. 2016) (evidence that supports only speculation is insufficient; clear-error reversal proper)
Rosiles-Camarena v. Holder, 735 F.3d 534 (7th Cir. 2013) (jurisdictional limits on review of discretionary immigration decisions)
Awe v. Ashcroft, 324 F.3d 509 (7th Cir. 2003) (BIA discretion to consider late filings)
Gutierrez-Almazan v. Gonzales, 491 F.3d 341 (7th Cir. 2007) (BIA must provide reasoned explanation and consider issues raised when denying motions)
Herrera-Garcia v. Barr, 918 F.3d 558 (7th Cir. 2019) (standards for abuse of discretion review of BIA decisions)
Dakaj v. Holder, 580 F.3d 479 (7th Cir. 2009) (BIA must consider corroborating evidence when ruling on late-notice claims)
Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) (uncorroborated affidavits often insufficient to rebut delivery presumptions)
Derezinski v. Mukasey, 516 F.3d 619 (7th Cir. 2008) (treatment of bare affidavits and presumption of mail delivery)
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (government expected to comply strictly with procedural requirements when dealing with individuals)