Rosales Justo v. Sessions
895 F.3d 154
1st Cir.2018Background
- Rosales, a Mexican national and former Acapulco police officer, applied for asylum after his son Tomas was murdered following an extortion demand; Rosales and his family received subsequent threats and were followed in two towns.
- An IJ found Rosales credible, concluded the murder and follow-up incidents gave rise to a well-founded fear of future persecution tied to his nuclear family, and found the Mexican police were willing to investigate but unable to protect him.
- IJ relied on Rosales’s testimony, country-condition reports (including International Crisis Group and State Department reports) describing high homicide rates, impunity, and police corruption in Guerrero.
- The BIA reversed, holding the IJ’s finding that Mexico was "unable or unwilling" to protect Rosales was clearly erroneous, emphasizing the police’s investigative steps and treating those steps as dispositive.
- The First Circuit remanded, holding the BIA erred by conflating unwillingness and inability, improperly discounting country-condition evidence, and failing to consider evidence showing futility of reporting to police.
Issues
| Issue | Plaintiff's Argument (Rosales) | Defendant's Argument (Government/BIA) | Held |
|---|---|---|---|
| Whether the BIA properly reversed the IJ's finding that Mexico was unwilling or unable to protect Rosales | BIA misapplied the standard by conflating unwillingness and inability and thus improperly rejected IJ's inability finding supported by country reports and testimony | Police investigation of the son’s murder shows government willingness and (implicitly) ability; IJ erred to rely on general country reports over individualized police response | Court held BIA erred: it conflated unwillingness and inability, failed to assess them separately, and improperly discounted country-condition evidence supporting inability; remand required |
| Standard of review applicable to BIA’s reversal of IJ factual finding | Rosales: BIA’s conclusion that IJ clearly erred is a legal application of the clear-error standard and is reviewed de novo | Government: characterization of BIA action as factfinding subject to substantial-evidence review | Court held de novo review appropriate for BIA’s legal conclusion that IJ’s factual finding was clearly erroneous; limited to BIA's stated reasoning |
| Relevance of failure to report post-murder threats to police | Rosales: failure to report is explainable and not fatal where reporting would be futile or dangerous given corruption and complicity | BIA: failure undermines claim of inability because no contemporaneous police complaint was made about the follow-up threats | Court held BIA erred: it ignored evidence supporting futility (police corruption, hiring private counsel) and misapplied clear-error review |
| Weight of country-condition reports vs. individualized police response evidence | Rosales: country reports were highly probative because they closely mirrored local conditions in Guerrero and corroborated his testimony about impunity and police incapacity | BIA: individualized evidence of an investigation outweighed general country reports, so IJ’s reliance on background evidence was improper | Court held BIA erred in dismissing country reports as mere background when they corroborated the IJ’s specific finding of inability; such reports can constitute substantial evidence |
Key Cases Cited
- Gonzalez v. Holder, 673 F.3d 35 (1st Cir.) (BIA independent-evaluation principle)
- Wu Lin v. Lynch, 813 F.3d 122 (2d Cir.) (de novo review of BIA’s application of clear-error standard)
- Khattak v. Holder, 704 F.3d 197 (1st Cir.) (willingness vs. ability distinction)
- Ortiz-Araniba v. Keisler, 505 F.3d 39 (1st Cir.) (government unwilling or unable requirement; successful prosecution shows ability)
- Khan v. Holder, 727 F.3d 1 (1st Cir.) (efficacy of government action can demonstrate ability)
- Burbiene v. Holder, 568 F.3d 251 (1st Cir.) (distinguish ordinary governmental struggles from persecution nexus)
- Amouri v. Holder, 572 F.3d 29 (1st Cir.) (limits on using general country reports to rebut petitioner-specific facts)