Luis Gutierrez-Rostran v. Loretta Lynch, 810 F.3d 497

Petitioner Luis Gutierrez-Rostran, a Nicaraguan citizen, entered the U.S. illegally in 2006 and did not timely apply for asylum.
In 2010 he was convicted of public intoxication and DUI, then placed in removal proceedings; he applied for asylum (untimely) and, alternatively, withholding of removal under 8 U.S.C. § 1231(b)(3)(A).
Gutierrez-Rostran and several relatives had been active in opposition parties (PLC/PLI) that opposed Daniel Ortega and the Sandinistas; he fled Nicaragua after Ortega’s 2006 election victory.
Testimony and documentary evidence alleged Sandinista violence against opposition members, including the murders of petitioner’s cousin and friend and threats to a poll worker (Ruiz-Sotelo); some local officials were alleged to be Sandinistas who refused protection.
The immigration judge and BIA denied withholding of removal, finding lack of corroboration that the cousin/friend were killed by Sandinistas and concluding petitioner had not shown persecution more likely than not; the IJ found petitioner’s testimony credible but discounted the evidence without articulated reasons.
The Seventh Circuit held the denial of withholding was inadequately reasoned and vacated and remanded the withholding claim; the untimely asylum claim was dismissed for lack of a cognizable legal error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of asylum application	Gutierrez-Rostran argued changed/extraordinary circumstances (increased violence) justified late filing	Government relied on statutory bar and IJ/BIA findings of untimeliness	Asylum claim dismissed; changed-circumstance factual questions not reviewable under §1252(a)(2)(D)
Withholding of removal: burden/standard	Petitioner argued evidence (credible testimony, reports) showed prima facie risk of persecution if returned	IJ/BIA argued insufficient corroboration and that petitioner failed to show "more likely than not" risk	Denial vacated and remanded: IJ/BIA failed to articulate adequate reasons for discounting credible, admissible evidence
Credibility and weight of evidence	Petitioner relied on his testimony and corroborating witness Ruiz-Sotelo and documents	Government relied on IJ/BIA skepticism and labeled some claims speculative	Court found IJ credited testimony yet nonetheless rejected evidence without reasoned analysis — improper and required remand
Application of "more likely than not" standard	Petitioner contended literal statistical proof impossible; presented substantial evidence of significant probability of persecution	Government applied Stevic 50% standard and found petitioner did not meet it	Court recognized evidentiary limitations in immigration context and required reasoned assessment; remand for further proceedings consistent with opinion

Restrepo v. Holder, 610 F.3d 962 (7th Cir.) (limits on judicial review of factual changed-circumstance asylum determinations)
Aimin Yang v. Holder, 760 F.3d 660 (7th Cir.) (questions of changed or extraordinary circumstances are factual and often unreviewable under §1252(a)(2)(D))
N.L.A. v. Holder, 744 F.3d 425 (7th Cir.) (hearsay admissible in immigration proceedings)
Yi-Tu Lian v. Ashcroft, 379 F.3d 457 (7th Cir.) (IJ must articulate reasonable grounds to reject admissible, pertinent, credible evidence)
INS v. Stevic, 467 U.S. 407 (U.S.) ("more likely than not" standard governs withholding of deportation)
Torres v. Mukasey, 551 F.3d 616 (7th Cir.) (application of withholding-of-removal burden and standard)