Tomas Bartolome v. Jefferson Sessions, III
904 F.3d 803
| 9th Cir. | 2018Background
- Tomas Bartolome, a Guatemalan national, had a prior removal order reinstated after illegal reentry; he expressed fear of persecution/torture and underwent a USCIS asylum officer reasonable-fear interview that found no reasonable fear.
- Bartolome testified about gang extortion, threats tied to his role in a village water project, and potential risk from his brother’s political activities; the asylum officer found him credible but denied reasonable fear.
- Bartolome requested de novo review by an immigration judge (IJ); at a continued hearing the IJ heard additional testimony (in Bartolome’s native language), accepted more documents, and affirmed the negative reasonable-fear determination.
- Bartolome filed a motion to reopen the reasonable-fear proceedings before the IJ; the IJ refused to consider it, stating he lacked authority. USCIS also declined to reopen sua sponte.
- Bartolome appealed, arguing interpreter/due-process problems at the asylum interview, that the IJ failed to consider evidence and was biased, and that the IJ wrongly refused his motion to reopen. The Ninth Circuit reviewed for substantial evidence.
Issues
| Issue | Bartolome’s Argument | Sessions’ Argument | Held |
|---|---|---|---|
| Adequacy of Spanish interpreter at asylum interview / due process | Spanish interpreter prevented full presentation; needed Chuj interpreter | Spanish was adequate; Bartolome consented and could cure at IJ de novo review | Denied — no due-process violation; any issues cured by de novo IJ hearing where he presented full testimony |
| Whether IJ failed to consider evidence / provide fair hearing | IJ ignored submitted evidence, didn’t address claims or credit testimony | IJ reviewed record, considered evidence, and need not write exhaustive findings in streamlined review | Denied — substantial evidence supports IJ’s conclusion; streamlined proceeding not a full evidentiary hearing |
| Alleged IJ bias from comment about Guatemalan civil liability | IJ’s comment showed bias and denied fair hearing | A judge may express views; any remark harmless and did not affect outcome | Denied — comment not prejudicial; error (if any) harmless given record |
| IJ’s authority to reopen reasonable-fear proceedings | IJ erroneously refused to entertain motion to reopen; must have sua sponte authority | Government conceded IJs have inherent authority but argued limited review | Granted in part — IJ’s refusal was an abuse of discretion; case remanded for IJ to decide whether to reopen |
Key Cases Cited
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir.) (reasonable-fear subjective/objective fear standard)
- Zhao v. Mukasey, 540 F.3d 1027 (9th Cir.) (subjective credibility and objective evidence requirements)
- Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir.) (substantial-evidence review of IJ reasonable-fear determinations)
- Ayala v. Sessions, 855 F.3d 1012 (9th Cir.) (IJ abused discretion by refusing to reconsider reasonable-fear reconsideration)
- Nken v. Holder, 556 U.S. 418 (U.S.) (public interest in prompt execution of removal orders)
- Mathews v. Eldridge, 424 U.S. 319 (U.S.) (due process requires meaningful opportunity to be heard)
- Nagoulko v. INS, 333 F.3d 1012 (9th Cir.) (speculation insufficient to show reasonable fear)
- Singh v. Holder, 771 F.3d 647 (9th Cir.) (remand required when tribunal wrongly concludes it lacks authority to reopen)