No. 20-1201
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: September 22, 2021 | Decided: February 2, 2022
PUBLISHED
Before GREGORY, Chief Judge, and HARRIS and RUSHING, Circuit Judges.
ARGUED: Michael D. Lieberman, KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioner. Patricia E. Bruckner, UNITED STATES DEPARMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Simon Y. Sandoval-Moshenberg, Stacy M. Kim, LEGAL AID JUSTICE CENTER, Falls Church, Virginia; Paul F. Brinkman, Michael A. Francus, KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioner. Ethan P. Davis, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
PAMELA HARRIS, Circuit Judge:
After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas-Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief from his reinstated removal order. An Immigration Judge (“IJ“) concurred with that determination.
Tomas-Ramos now petitions for review of the IJ‘s order on two grounds. He first contends that the IJ‘s finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ‘s decision was that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency‘s decision, and remand for further proceedings.
In addition, Tomas-Ramos argues that noncitizens subject to reinstated removal orders have a right to counsel at reasonable fear review hearings, and that although he was represented by counsel before the IJ, his rights were violated when his lawyer was denied a chance to make a closing statement. Given our disposition of the underlying claims, we think it premature to resolve that issue. At a new hearing on remand, the IJ may well permit counsel to participate to the extent Tomas-Ramos contends is required, making it unnecessary for us to rule on the question.
I.
Because Tomas-Ramos reentered the United States without authorization after a prior removal, his case is subject to the distinct statutory and regulatory regime governing reinstated removal orders. We begin by describing that background law, and then turn to the facts of this case.
A.
Congress has established a streamlined process for removal of noncitizens who return illegally to this country after a previous removal order has been entered against them. In such cases, the prior adjudication of removal remains final and conclusive: The “prior order of removal is reinstated from its original date,” and is “not subject to being reopened or reviewed.”
The relevant agencies have established a screening mechanism intended to satisfy these statutory directives “without unduly disrupting the streamlined removal process.” Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8479 (Feb. 19, 1999).1 When a noncitizen subject to a reinstated removal order expresses fear of returning to a country of removal, he will first be interviewed by an asylum officer to determine whether he has a “reasonable fear” of persecution or torture.
If the asylum officer determines that the noncitizen has not established reasonable fear – as was the case for Tomas-Ramos – the noncitizen is entitled to review by an IJ.
Second, the training manual for asylum officers clarifies what showing is required to establish a “reasonable possibility” of persecution or torture – the benchmark for “reasonable fear” set by
“reasonable possibility” is used not to assess a noncitizen‘s ultimate eligibility for asylum, but rather as a screening mechanism to determine whether a noncitizen may be able to establish an entitlement to withholding or CAT protection. See Training Manual at 17; 64 Fed. Reg. at 8485 (explaining standard).
Importantly for this case, to establish a “reasonable possibility” of persecution in a reasonable fear proceeding, the evidence must show that a noncitizen cannot avoid the feared harm by relocating within the country of removal, or that expecting him to relocate would be unreasonable. Training Manual at 19. That is a familiar inquiry; the same showing is required for asylum eligibility, see
As for torture, the reasonable fear determination again tracks the standard for relief under the CAT. In assessing whether there is a “reasonable possibility” of torture, asylum officers in reasonable fear proceedings should consider all relevant evidence, including “whether or not the applicant could safely relocate to another part of his or her country[.]”
Training Manual at 40; see
B.
Tomas-Ramos first entered the United States without authorization in October 2017. He was soon apprehended and ordered removed, and was removed to Guatemala in November 2017. See
In September 2019, DHS took Tomas-Ramos back into custody and sought to remove him under the reinstated removal order. Three days later, through counsel, Tomas-Ramos requested a reasonable fear interview, stating that he feared returning to Guatemala because gang members had threatened to kill him for resisting their recruitment of his son. Although a DHS officer agreed to arrange the interview, he failed to do so, and Tomas-Ramos was mistakenly deported to Guatemala. After Tomas-Ramos sued, DHS returned him to the United States for the reasonable fear proceedings at issue in this case.
During his reasonable fear interview with an asylum officer, Tomas-Ramos testified that in Guatemala, gang members had attempted to recruit his son, which Tomas-Ramos refused to allow. He stated that he was afraid to return because, in 2018, the gang members
had repeatedly called him on the phone, threatening to kill him and his family if he did not let his son join the gang. Those threats were credible, Tomas-Ramos believed, in part because gang members once threatened to kill him just days after they had murdered another person who attended his church. Relatedly, Tomas-Ramos testified that if he returned to Guatemala, he would not be able to attend church; if he did, gang members would recognize him as a churchgoer and target him. Tomas-Ramos‘s fears were confirmed, he said, when he was erroneously deported to Guatemala in 2019: He rarely left the house, but when he did, gang members spotted him and yelled his name, causing him to run away and hide. Based on that testimony, counsel for Tomas-Ramos argued in her closing statement that he had been persecuted based on membership in the particular social group of his family, and possibly his Christian religion, and likely would be harmed if returned to Guatemala.
The asylum officer found Tomas-Ramos credible but determined that he had not established a reasonable fear of persecution or torture. As to persecution, the asylum officer found that Tomas-Ramos failed to show a reasonable possibility that the harm he experienced or feared was on account of a protected characteristic (race, religion, nationality, political opinion, or membership in a particular social group). See
cognizable and protected “particular social
Tomas-Ramos requested that an IJ review the asylum officer‘s negative determination. At his review hearing before the IJ in February 2020, Tomas-Ramos was represented by counsel, who filed a memorandum and several exhibits on his behalf. Although the IJ apparently did not receive this submission before the hearing, she took a recess and reviewed it then. After resuming the hearing, the IJ questioned Tomas-Ramos extensively, and then told him that she found no reasonable fear of persecution or torture.
At that point, counsel for Tomas-Ramos asked to be heard. The IJ denied this request, explaining that the relevant agency regulations and practice manual made clear that argument was not required, and went on to explain her decision. The IJ expressed doubt that simply because Tomas-Ramos refused to let his son be recruited by the gang in the past, gang members would harm Tomas-Ramos if he returned to Guatemala now. The IJ also was skeptical of Tomas-Ramos‘s claim that he could not avoid harm by relocating within Guatemala because gang members would recognize him as a churchgoer wherever he moved.
Following the hearing, the IJ issued a one-page form order concurring with the asylum officer‘s negative reasonable fear determination. She checked a box indicating that Tomas-Ramos had not established a reasonable fear of persecution or torture. And she provided three reasons for her decision, which read in full: “No nexus to any protected ground. Respondent can relocate. Respondent also had difficulty articulating his fear.” A.R. 1.
Tomas-Ramos timely petitioned this court for review of the IJ‘s ruling.3
II.
We begin with Tomas-Ramos‘s challenge to the IJ‘s determination that he failed to establish a reasonable fear of persecution or torture in Guatemala. We review factual findings underlying that determination for substantial evidence, “treating them as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” and we review legal conclusions de novo. Perez Vasquez v. Garland, 4 F.4th 213, 220 (4th Cir. 2021) (internal quotation marks omitted).
A.
As a threshold matter, we address the government‘s argument that instead of our usual substantial evidence standard, we should apply in this case a still more deferential standard and uphold the IJ‘s decision so long as it was based on a “facially legitimate and bona fide reason.” See Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). While the government often has taken this position in cases challenging reasonable fear determinations, it has yet to find a circuit to agree, and our court has expressed some skepticism. See Hernandez-Aquino, 770 F. App‘x at 88 n.2 (noting absence of cases applying the government‘s proposed standard and assuming without deciding that the substantial evidence standard applies). We now join two of our sister circuits and reject this argument. See Romero v. Att‘y Gen. U.S., 972 F.3d 334, 341 (3d Cir. 2020); Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).4
The “facially legitimate and bona fide reason” standard of review sought by the government was developed “in a limited and distinctive setting: challenges to government decisions to deny visas.” Romero, 972 F.3d at 340. In that context, the Executive is exercising “plenary power” and virtually unlimited discretion, delegated by Congress, to
make rules for the admission of noncitizens. See Mandel, 408 U.S. at 765–66, 769–70. Given that expansive discretion, Executive decisions about visa eligibility generally are not reviewable at all. See id. at 767; Romero, 972 F.3d at 340. Mandel makes a narrow exception, allowing for judicial review when a visa denial impinges on the constitutional rights of a United States citizen, but only on very limited grounds: So long as the Executive exercises its broad power “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against” the constitutional rights in question. Mandel, 408 U.S. at 770.
Those principles do not translate to this context. Mandel‘s core premise is the Executive‘s nearly unfettered discretion over visa determinations. Id. at 766–67. But here, the Executive‘s discretion is not unfettered. Instead, as described above, we are here precisely because Congress has imposed two express limits on the Executive‘s ability to remove a noncitizen pursuant to a reinstated removal order: The government may not remove a noncitizen to a country in which there are substantial grounds for believing he would be tortured, see
Moreover, Mandel‘s particular standard of review has no sensible application in a case like this. Because of the factual context in which Mandel arose – a claim that a visa was denied not for the reason stated by the relevant executive official but instead because of disagreement with the
B.
Applying this familiar standard of review, we conclude that the agency erred in finding that Tomas-Ramos failed to establish the requisite nexus to a protected ground in support of his claim of persecution. Instead, the record compels a finding that Tomas-Ramos was persecuted at least in central part because of his family relationship to his son,
which qualifies as a protected ground for withholding purposes. Finding no independent basis on which to affirm the IJ‘s decision, we vacate the agency‘s determination and remand for further proceedings.
1.
To establish a reasonable fear of persecution, Tomas-Ramos must show “a reasonable possibility that he [] would be persecuted on account of his [] race, religion, nationality, membership in a particular social group or political opinion” if returned to Guatemala.
Instead, both found that Tomas-Ramos failed to establish a reasonable possibility that the persecution he suffered was “on account of” – that is, had a “nexus” to – a statutorily protected ground. Those grounds include, as noted above, membership in a “particular social group.” See
gang‘s threats against Tomas-Ramos did not give rise to a reasonable fear of persecution based on a protected ground.
That reasoning was in error. As we have explained, “the family provides a prototypical example of a particular social group,” Crespin-Valladares, 632 F.3d at 125 (internal quotation marks omitted), and familial ties – like Tomas-Ramos‘s ties to his son – qualify as a protected ground
The government argues, however, that this error does not matter, because the IJ correctly held that there was no nexus between Tomas-Ramos‘s relationship to his son and the threats against him. We cannot agree. Tomas-Ramos‘s consistent testimony – which the asylum officer found credible, and the IJ never questioned – was that gang members threatened to kill him because he resisted their efforts to recruit his son, preventing him from joining the gang. And we have held that the nexus requirement is satisfied in precisely that scenario: In Hernandez-Avalos v. Lynch, 784 F.3d 944, 949–50 (4th Cir. 2015), we concluded that a mother threatened by gang members because she refused to allow her son to join the gang had been persecuted “on account of” her membership in her son‘s nuclear family. We recognized that the gang members were motivated as well by a desire to recruit. Id. But “[a]s we have repeatedly emphasized,” to establish nexus, “it is enough that the protected ground be at least one central reason for the persecution.” Perez Vasquez, 4 F.4th at 224 (internal quotation marks omitted); see Hernandez-Avalos, 784 F.3d at 950 (applying “one central reason” standard). Because the evidence established that the gang threatened ”Hernandez, rather than another person, because of her family connection to her son,” we held, any reasonable adjudicator would be compelled to conclude that she had been persecuted “on account of” a protected ground. Hernandez-Avalos, 784 F.3d at 950.
This case is governed squarely by Hernandez-Avalos, and we reach the same result. As in Hernandez-Avalos, there is “no evidence” in this record that Tomas-Ramos “would have been selected as the recipient of [the gang‘s] threats absent [his] familial connection” to his son. Id. at 950 n.7. The government recognizes the import of Hernandez-Avalos, suggesting only that it can be distinguished because the petitioner there gave a more “compelling and detailed” account of her past harm than Tomas-Ramos. Respondent‘s Br. 37. But Tomas-Ramos‘s testimony provided, clearly, the detail that counts: that gang members were threatening him “because I do not allow my son to join the gangs.” Supp. A.R. 20; see also A.R. 84 (“[T]hey wanted my son to join and as a father I didn‘t want my son to join and so they threatened my whole family.“). That is enough to establish a reasonable possibility that he was threatened at least in central part because of his parental relationship to his son, and thus established the requisite nexus to a protected ground. The agency‘s contrary finding, and the government‘s argument in support of it, are foreclosed by our precedent. See Hernandez-Avalos, 784 F.3d at 950. We therefore hold that the
record compels a finding that Tomas-Ramos was subject to past persecution on account of his family ties.5
In a footnote to its brief, the government argues that even if the IJ erred in finding “[n]o nexus to any protected ground,” we still may affirm the negative reasonable fear determination on an alternative basis: the IJ‘s additional finding that “[Tomas-Ramos] can relocate.” A.R. 1.6 Again, we cannot agree.
As an initial matter, we do agree with the government that a noncitizen‘s ability to avoid persecution by relocating within the country of removal is relevant to the reasonable fear determination. Tomas-Ramos contends that relocation is inapposite in the reasonable fear process and may only be considered in full withholding proceedings, but agency regulations and manuals dictate otherwise.
The ultimate question in a reasonable fear proceeding, as we have explained, is whether a noncitizen subject to a reinstated removal order nevertheless may be eligible for mandatory relief in the form of withholding of removal or CAT protection. And the ability to relocate is relevant to both of those eligibility determinations. See
Nevertheless, the IJ‘s finding that “[Tomas-Ramos] can relocate” is not an independent ground for affirmance, because that finding is called into question by our determination that Tomas-Ramos has established past persecution. That finding is critical to the relocation inquiry: As the agency‘s own manuals make clear, a showing of past persecution gives rise to a presumption of a reasonable fear of future persecution, and that presumption may be overcome only if it is established, by a preponderance of the evidence, that “under
Because the IJ believed – incorrectly – that Tomas-Ramos had not established past persecution, she never had the opportunity to assess relocation under the proper framework.8 In evaluating Tomas-Ramos‘s testimony that he could not safely relocate because gang members would search for him wherever he moved, the IJ could not take into account what is now presumed: that Tomas-Ramos has a well-founded and reasonable fear that if he is returned to Guatemala, he again will be subjected to persecution based on his relationship to his son. In making her relocation finding, the IJ could not have been expected to, and did not, refer at any point to rebuttal of that presumption, or to the preponderance of the evidence standard. And unsurprisingly, the IJ never considered whether “DHS [had] establish[ed] . . . that, under all the circumstances, it would be reasonable for [Tomas-Ramos] to relocate.” Training Manual at 19.
In these circumstances, we follow our ordinary rule of vacating and remanding so that the agency may make the relevant factual assessments under the proper standard and in the first instance. See Alvarez Lagos v. Barr, 927 F.3d 236, 252 (4th Cir. 2019); see also Portillo Flores v. Garland, 3 F.4th 615, 636–37 (4th Cir. 2021) (en banc) (holding that remand is the “appropriate treatment when the grounds upon which the administrative agency acted are not clearly disclosed and adequately sustained” (internal quotation marks omitted)).
3.
Given our holding, we also remand Tomas-Ramos‘s torture claim to the agency for further consideration. The IJ did not specify the ground on which she found that Tomas-Ramos had failed to establish a reasonable fear of torture. Indeed, the IJ never mentioned torture, in her written order or at the hearing. The asylum officer did address torture, concluding that Tomas-Ramos failed to show a “reasonable possibility” that government officials would consent to or acquiesce in any torture. But the IJ made no similar finding, and as the government concedes, we may affirm only on grounds identified in the IJ‘s final agency determination. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014) (citing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)).
That leaves us, again, with the IJ‘s finding that “[Tomas-Ramos] can relocate,” A.R. 1, on which the government relies for affirmance of the negative reasonable fear determination with respect to torture. As the government argues, and as described at the outset, the ability to relocate indeed bears on eligibility for CAT relief. See
we could affirm the negative reasonable fear determination on that ground alone. Cf. Ponce-de Ascencio v. Garland, No. 21-1147, slip op. at 17–18 (4th Cir. Jan. 12, 2022) (affirming denial of CAT relief only because record indicates that agency did not restrict its consideration to relocation alone).
But in any event, as we discuss above, the IJ‘s relocation finding has been vacated so that the agency may reconsider it in light of our holding that Tomas-Ramos has established past persecution. It would make little sense to affirm the denial of Tomas-Ramos‘s torture claim on the basis of a finding we have directed the agency to rethink. Because the IJ offered no other reason for concluding that Tomas-Ramos failed to establish a reasonable fear of torture, we remand that claim for reconsideration, as well. See Diaz de Gomez v. Wilkinson, 987 F.3d 359, 367 (4th Cir. 2021) (remanding all claims, including claims for CAT protection, where agency erred in failing to give applicant the benefit of the presumption of a well-founded fear of persecution).
III.
Finally, we briefly address Tomas-Ramos‘s remaining argument: that the IJ violated a statutory right to counsel by denying his counsel‘s request to speak at the end of his reasonable fear review hearing. Given our disposition of Tomas-Ramos‘s underlying claims, which we have remanded for a new hearing, we think it would be premature to resolve this question today.
As noted above, the regulation governing these reasonable fear proceedings gives applicants a right to counsel – and specifically, a right to have counsel make closing
arguments – at their initial interviews before asylum officers, but is silent as to any right to counsel at IJ review hearings. Compare
Tomas-Ramos, of course, was represented by counsel at his reasonable fear review hearing before the IJ. His lawyers entered appearances on the record, filed a memorandum with several exhibits, and had a colloquy with the IJ about that memorandum at the start of the hearing. So it is important to be clear about the precise nature of Tomas-Ramos‘s objection. On appeal, Tomas-Ramos alludes to the possibility that his lawyers might have conducted direct examination or otherwise participated during the review hearing. But before the IJ, the only form of participation his lawyers sought and were denied was the opportunity to make a closing statement after the IJ had indicated her decision. And even then, they did not argue that they were entitled, under
On this record, and given the posture of this case, we see no need to resolve whether, as the Ninth Circuit held in Orozco-Lopez, there is a general right to counsel in reasonable
fear review hearings before IJs. Even if there were such a right – a question on which, to be clear, we take no position – Tomas-Ramos was represented by counsel before the IJ here. The more specific right Tomas-Ramos is asserting – to have counsel make a closing statement – is not addressed by Orozco-Lopez. And we need not address it now, because this case is not over. Given our disposition of Tomas-Ramos‘s substantive challenge to the IJ‘s negative reasonable fear determination, it will return to the agency for a new hearing. At that hearing, we can expect that the IJ again will allow Tomas-Ramos to be represented by counsel, and the IJ also may allow counsel to participate to the extent Tomas-Ramos contends is required, obviating any need to address these issues. At a minimum, counsel will have the opportunity to request whatever forms of participation they believe to be required, and to object on the record if they are denied, giving the IJ an opportunity to consider those objections and sharpening the issues for review.9
IV.
For the reasons given above, the petition for review is granted, the agency‘s determination is vacated, and the case is remanded for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED