12 F.4th 942
9th Cir.2021Background
- Santos Iraheta-Martinez, a Salvadoran national, suffered physical and homophobic abuse from his father and fled to the U.S.; he was removed several times and unlawfully reentered multiple times.
- After reentering, DHS reinstated his prior removal order in 2017; an asylum officer found a reasonable fear and referred him to withholding-only proceedings (asylum barred by regulation for reinstated orders).
- In immigration court Iraheta preserved an argument that changed circumstances could make him eligible for asylum under 8 U.S.C. § 1158(a)(2)(D) and alternatively asserted a due process right to have DHS consider not reinstating the prior order.
- The IJ and BIA assumed past persecution by his father on account of perceived sexual orientation but found DHS rebutted the presumption of future persecution (fundamental change: Iraheta is an independent adult, father aged); they also denied persecution by his brother/MS-13 and denied CAT relief.
- Iraheta petitioned the Ninth Circuit challenging (1) the agency’s refusal to allow asylum in reinstatement proceedings, (2) denial of a due process opportunity to seek non-reinstatement, and (3) denial of withholding and CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1158(a)(2)(D)’s "changed circumstances" exception allows an alien with a reinstated removal order to apply for asylum | §1158(a)(2)(D) permits asylum despite reinstatement if changed circumstances exist | §1231(a)(5) bars any relief under the chapter for reinstated orders; §1158(a)(2)(D) only excepts subsections (B) and (C) (one-year/previous-denial) | Held for government: reinstated orders bar asylum; §1158(a)(2)(D) does not override §1231(a)(5) |
| Whether due process requires DHS to consider, as a discretionary matter, foregoing reinstatement so the alien can seek asylum | Villa-Anguiano supports a right to have DHS consider discretionary non-reinstatement in light of changed circumstances | DHS discretion to forgo reinstatement is unreviewable discretion; Villa-Anguiano only protects ability to contest factual predicates for reinstatement | Held for government: no due process right to demand DHS consider discretionary non-reinstatement |
| Withholding claim for persecution on account of perceived sexual orientation (father) — whether presumption of future persecution was rebutted | Past persecution creates a presumption that must be applied to all likely persecutors; factual findings did not show fundamental change | DHS rebutted presumption by showing changed circumstances (Iraheta now independent adult; father aged) and possibility of internal relocation | Held for government: BIA/IJ did not clearly err; presumption rebutted; withholding denied |
| CAT claim — whether aggregate risk of torture meets "more likely than not" standard | Country conditions, gang threats, and family threats aggregate to >50% chance of torture | Aggregate risk below 50%; IJ and BIA adequately considered all sources and acquiescence | Held for government: CAT relief denied; BIA adequately considered aggregate risk |
Key Cases Cited
- Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016) (held reinstated removal orders bar asylum under governing regulation; reserved question on changed-circumstances exception)
- Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) (due process protects the right to contest factual predicates for reinstatement, not to compel discretionary non-reinstatement)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (describes limits of reasonable-fear/withholding-only proceedings and regulatory scope)
- NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) (interpretation of "notwithstanding" clauses and how they indicate which provisions prevail in conflicts)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency prosecutorial/enforcement discretion generally committed to agency discretion)
- Hanna v. Keisler, 506 F.3d 933 (9th Cir. 2007) (application of burden-shifting where past persecution gives rise to presumption of future persecution)