Maurice Achola v. Jefferson Sessions, III
707 F. App'x 830
| 5th Cir. | 2018Background
- Petitioner Maurice Achola, a Kenyan/Jamaican national, sought asylum, withholding of removal, and CAT protection; proceedings occurred before an immigration judge (IJ) and the Board of Immigration Appeals (BIA).
- Achola proceeded pro se at the immigration hearing; later, through counsel, he challenged procedural and credibility rulings on petition for review.
- Procedural claim: IJ informed a group of respondents about the right to counsel at a master calendar hearing but did not explicitly say the legal-services list included free (pro bono) providers.
- Merits/credibility claim: IJ found Achola not credible and rejected withholding of removal to Jamaica for lack of nexus to a protected ground; BIA adopted and relied on the IJ’s findings.
- Achola did not brief challenges to the BIA’s denial of withholding to Jamaica on the merits, nor to the BIA’s determinations that asylum was time-barred and CAT relief was unavailable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s group advisal and omission of the word “free” on record violated due process | Achola: group advisal and failure to state list contained free services deprived him of counsel and violated due process per se | Gov’t: IJ complied with regulatory advisals; written notices indicated the list included free providers; no per se violation | Court: No due process violation; IJ complied with 8 C.F.R. §1240.10; written notices showed list included free providers; no per se rule and no substantial prejudice shown |
| Whether absence of counsel at hearing required showing of prejudice | Achola: argued IJ action was per se violation not requiring prejudice | Gov’t: Fifth Circuit requires showing of substantial prejudice for due process claims tied to lack of counsel | Held: Court requires substantial prejudice; Achola failed to show what evidence counsel would have provided or resulting prejudice |
| Whether IJ/BIA’s adverse credibility finding was legally erroneous | Achola: IJ failed to liberally construe his application and wrongly discredited him | Gov’t: IJ/BIA credibility determinations supported by record and therefore entitled to deference | Held: Credibility and nexus findings reviewed for substantial evidence and not overturned; Achola waived review of some related claims by not briefing them |
| Whether, assuming withholding to Kenya, removal to another country (Jamaica) is barred | Achola: implied protection to Kenya should prevent removal elsewhere | Gov’t: Withholding only bars return to the country of danger, not removal to a different accepting country | Held: Withholding to one country does not prevent removal to another country that will accept the alien |
Key Cases Cited
- Ojeda-Calderon v. Holder, 726 F.3d 669 (5th Cir. 2013) (standard of review for pure legal issues such as due process)
- Manzano-Garcia v. Gonzales, 413 F.3d 462 (5th Cir. 2005) (aliens in removal proceedings entitled to due process)
- Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993) (absence of counsel may violate due process if it causes substantial prejudice)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (appellate review generally limited to BIA but reviewable where BIA relied on IJ)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (withholding eligibility is a factual determination reviewed for substantial evidence)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (petitioner bears burden to show evidence compels contrary conclusion)
- Chambers v. Mukasey, 520 F.3d 445 (5th Cir. 2008) (failure to brief an issue results in waiver)
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (withholding prevents return to the place of danger but does not bar removal to another country that will accept the alien)