986 F.3d 1090
8th Cir.2021Background
- Barahona, a Salvadoran national, entered the U.S. illegally in 2012; his wife (an asylee) filed an I-730 petition for him in 2018.
- DHS discovered a July 2018 Interpol Red Notice seeking his extradition for an Article 345 ("illicit gathering") offense; the notice identified him as a alleged "gatillero" (hitman) for MS-13.
- ICE detained Barahona; an IJ denied his asylum and withholding requests on the ground that "serious reasons exist to believe" he committed a serious nonpolitical crime, citing the Red Notice.
- The BIA upheld, treating the Red Notice as sufficient “some evidence” to shift the burden to Barahona to disprove the mandatory bar; no agency finding of probable cause was made.
- The Eighth Circuit held the statutory "serious reasons for believing" standard requires a probable-cause finding before the mandatory bar applies, reversed the BIA, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the "serious reasons for believing" standard requires probable cause | Barahona: Yes—probable cause is required; BIA failed to make that finding | DHS/BIA: The Red Notice provided enough "some evidence" to shift the burden | Court: Probable cause is required; BIA erred by failing to find probable cause |
| Whether an Interpol Red Notice alone suffices to meet the standard | Barahona: Red Notice alone is insufficient, especially where dismissal of charges was asserted | DHS/BIA: Red Notice can constitute sufficient evidence to shift burden | Court: A Red Notice alone does not automatically satisfy the probable-cause requirement here |
| Burden allocation for mandatory bars to relief | Barahona: DHS must establish mandatory bars by the required standard | DHS/BIA: DHS may present "some evidence" to trigger alien's burden under 8 C.F.R. § 1240.8(d) | Court: DHS carries the burden to establish mandatory bars; "some evidence" shifting does not replace the probable-cause requirement for this bar |
| Whether the charged Article 345 offense is a "serious nonpolitical crime" | Barahona: Crime may not meet the definition of serious nonpolitical crime | DHS/BIA: The offense involved substantial risk of violence and lacked political character | Court: Agency's determination that the charged crime is serious and nonpolitical was not clearly erroneous |
Key Cases Cited
- Bernal-Rendon v. Gonzales, 419 F.3d 877 (8th Cir. 2005) (agency interpretation deference and review principles)
- Zheng v. Holder, 698 F.3d 710 (8th Cir. 2012) (substantial-evidence standard for factual findings)
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (probable cause satisfied where petitioner admitted crimes)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (upholding denial where investigative reports corroborated alleged crime)
- Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012) (BIA must accept IJ facts and decide eligibility de novo)