Victor Angeles Zamorano v. Merrick Garland
2 F.4th 1213
| 9th Cir. | 2021Background
- Zamorano, a Mexican national who entered the U.S. as a child around 2000, was charged with removability for unlawful presence and proceeded pro se after declining counsel.
- At the merits hearing he admitted the removability allegations; when asked about fear of return he said only that he feared not knowing how to start a life in Mexico.
- The IJ found no plausible basis for asylum/withholding/CAT, considered only voluntary departure as potential relief, and denied pre-conclusion voluntary departure as a matter of discretion based chiefly on repeated DUI convictions and alcohol-related incidents.
- Zamorano appealed pro se to the BIA, arguing the IJ failed to weigh favorable factors (long residence, arrival as a child, rehabilitation, good character), failed to develop/advise on other relief (asylum, withholding, CAT, U visa, DACA), and alleged due process violations.
- The BIA affirmed the IJ on voluntary departure and declined other relief, finding no expressed fear of persecution and concluding the IJ reasonably did not inquire further; Zamorano petitioned for review to the Ninth Circuit.
- The Ninth Circuit granted review and remanded as to voluntary departure for failure to evaluate favorable factors, but rejected Zamorano’s claims that the IJ erred in advising or developing asylum/withholding or U-visa claims and dismissed the DACA claim for lack of exhaustion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ abused discretion by denying pre-conclusion voluntary departure without weighing favorable factors | Zamorano: IJ relied only on criminal history and failed to consider long residence, entry as a child, rehabilitation, and good character | Government: IJ permissibly exercised discretion based on serious and repetitive alcohol-related offenses | Court: Remanded — IJ failed to evaluate and weigh favorable factors; must consider them and explain reasoning (vacate & remand) |
| Whether IJ erred in advising Zamorano of right/ability to apply for asylum/withholding under 8 C.F.R. §1240.11(c) | Zamorano: His fear of return (gangs/cartels; lack of ties) required advising and forms | Government: Zamorano’s expressed fear was only inability to start a life, not fear of persecution; no duty triggered | Held: No error — his testimony did not show a fear of persecution and did not trigger advisory duties |
| Whether IJ had duty to advise apparent eligibility for U nonimmigrant status under §1240.11(a)(2) | Zamorano: IJ failed to inquire about U-visa eligibility (mother seeking U-visa) | Government: U status is not a Chapter V benefit; §1240.11(a)(2) covers Chapter V benefits only; mother not lawful and he was over 21 so no derivative U eligibility shown | Held: No error — U status falls under Chapter I (USCIS), not Chapter V; IJ had no §1240.11(a)(2) duty here; any failure harmless and no prejudice shown |
| Whether IJ/BIA erred re: DACA and exhaustion; and whether IJ failed to develop record for pro se petitioner (due process) | Zamorano: IJ failed to inform and develop DACA eligibility and other claims, violating regulations and due process | Government: DACA claim unexhausted before BIA; other record-development claims were unnecessary because facts did not support plausible relief and no prejudice shown | Held: DACA claim dismissed for lack of exhaustion/jurisdiction; record-development/due-process claims rejected — IJ sufficiently probed given petitioner’s testimony and no prejudice shown |
Key Cases Cited
- Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1993) (IJ must weigh favorable and unfavorable factors and consider positive equities for voluntary departure)
- Garland v. Dai, 141 S. Ct. 1669 (2021) (agency decisions need not use magic words; court may uphold if agency’s path reasonably discerned)
- C.J.L.G. v. Barr, 923 F.3d 622 (9th Cir. 2019) (§1240.11(a)(2) duty to advise triggered when facts raise a reasonable possibility of eligibility)
- Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002) (IJ duties to explain what evidence is needed and develop the record for pro se aliens)
- Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000) (IJ must scrupulously probe and elicit favorable and unfavorable facts for pro se claimants)
- Palomar-Santiago v. United States, 141 S. Ct. 1615 (2021) (courts may not excuse statutory exhaustion requirements where Congress used mandatory language)