ISRAEL ALVARADO-HERRERA v. MERRICK B. GARLAND, Attorney General
No. 18-70191
United States Court of Appeals for the Ninth Circuit
April 13, 2021
Agency No. A206-023-796; On Petition for Review of an Order of an Immigration Judge; Argued and Submitted September 16, 2020 San Francisco, California
Before: Paul J. Watford, Michelle T. Friedland, and Eric D.
ALVARADO-HERRERA V. GARLAND
2
SUMMARY*
Immigration
The panel granted in part, denied in part, and dismissed in part, Israel Alvarado-Herrera‘s petition for review of an immigration judge‘s decision affirming an asylum officer‘s negative reasonable fear determination in reinstatement proceedings, and remanded with instructions.
As an initial matter, the panel concluded that it lacked jurisdiction to consider Alvarado-Herrera‘s contention that the Department of Homeland Security could not reinstate his 2013 expedited removal order because the order failed to comply with two regulatory provisions requiring certain signatures. The panel noted that the statute authorizing reinstatement of prior removal orders,
The panel rejected Alvarado-Herrera‘s contention that the agency lacked the statutory authority to create the reasonable fear screening process for withholding of removal and Convention Against Torture claims in reinstatement proceedings, and that Congress intended every non-citizen to receive a full due process hearing before an immigration judge. The panel concluded that the agency‘s adoption of the reasonable fear screening process was based on a permissible reading of
The panel rejected Alvarado-Herrera‘s contention that the reasonable fear screening procedures violate the Fifth Amendment‘s Due Process Clause because they do not afford non-citizens the right to present new evidence during the review hearing before an immigration judge. The panel wrote that Alvarado-Herrera misconstrued the nature of a review hearing, at which the immigration judge sits in an appellate capacity, reviewing the written record prepared by the first-instance decision-maker (the asylum officer). The panel explained that due process does not mandate the right to present new evidence to an appellate tribunal when a litigant has been afforded a reasonable opportunity to present evidence to the first-instance decision-maker. The panel also concluded that nothing in the record supported Alvarado-Herrera‘s contention that the immigration judge failed to review the asylum officer‘s determination de novo, as the regulations require.
The panel held that substantial evidence supported the immigration judge‘s determination that Herrera-Alvarado failed to establish a reasonable fear of persecution on account of a protected ground. The panel wrote that violence perpetrated by a gang to avenge the death of one of its members, without more, does not constitute persecution on account of a protected ground.
The panel held that substantial evidence did not support the immigration judge‘s determination that Alvarado-Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera‘s specific assertions of police complicity in the 18th Street gang‘s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera‘s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer‘s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
COUNSEL
Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California, for Petitioner.
Dana M. Camilleri (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Anthony P. Nicastro, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
WATFORD, Circuit Judge:
Israel Alvarado-Herrera, a native and citizen of Honduras, reentered the United States illegally in 2017. The Department of Homeland Security (DHS) ordered him removed to Honduras after reinstating an earlier removal order that had been entered against him in 2013. Because Alvarado-Herrera expressed a fear of returning to Honduras, 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 he did not have a reasonable fear of such harm, and an immigration judge affirmed that determination. Alvarado-Herrera petitions for review of the immigration judge‘s decision on several grounds, all of which we reject with one exception: We agree with Alvarado-Herrera that the immigration judge‘s finding
I
Alvarado-Herrera first entered the United States illegally in May 2013. He was apprehended shortly after crossing the southern border and placed in what are known as expedited removal proceedings. Expedited removal proceedings involve, as the name suggests, a streamlined process through which certain non-citizens—such as those apprehended at or near the border soon after entry—may be removed from the United States without a hearing before an immigration judge. See
In December 2017, Alvarado-Herrera reentered the United States illegally and was again apprehended shortly after crossing the southern border. Rather than issue a second expedited removal order, DHS decided to reinstate his earlier 2013 removal order. Congress has authorized reinstatement of prior removal orders as another streamlined process through which certain non-citizens may be removed from the country. The statute authorizing reinstatement provides as follows:
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
To reinstate a prior removal order, an immigration officer must find that the individual in question: (1) is not a citizen; (2) was removed or voluntarily departed while subject to a prior removal order; and (3) reentered the United States illegally.
Although
If the asylum officer determines that the non-citizen has not established a reasonable fear, the non-citizen may request review of that determination by an immigration judge.
Alvarado-Herrera expressed a fear of persecution and torture if he were returned to Honduras. As Alvarado-Herrera explained during his interview with the asylum officer, that fear was based on an incident in Honduras several years earlier in which a group of armed 18th Street gang members—dressed as police officers and displaying police badges—shot and killed the business owner for whom Alvarado-Herrera worked as a bodyguard, apparently in retaliation for the business owner‘s refusal to pay the gang‘s extortion demands. Alvarado-Herrera and his fellow bodyguards returned fire, killing one of the gang‘s members. One of the other bodyguards also died during the attack. Alvarado-Herrera himself suffered gunshot wounds and was hospitalized for two days. After leaving the hospital, he went into hiding out of fear that the gang would seek to kill him in retaliation for the death of one of its members during the attack. Two of Alvarado-Herrera‘s fellow bodyguards who survived the attack were later killed, allegedly by the gang, and Alvarado-Herrera learned from acquaintances that the gang continued to look for him.
The asylum officer found Alvarado-Herrera‘s account credible but determined that he had not established a reasonable fear of persecution or torture. As to persecution, the asylum officer found that Alvarado-Herrera failed to establish that the gang would target him because of a protected characteristic (race, religion, nationality, membership in a particular social group, or political opinion). As to torture, the asylum officer found that Alvarado-Herrera failed to establish that retaliatory violence from the gang would be perpetrated by or with the consent or acquiescence of a public official. Alvarado-Herrera requested review of the asylum officer‘s determination by an immigration judge, but the judge affirmed the determination on the same grounds given by the asylum officer.
Alvarado-Herrera filed a timely petition for review of the immigration judge‘s decision. We have jurisdiction to review Alvarado-Herrera‘s constitutional and legal challenges to the reasonable fear screening process as well as his factual challenge to the evidentiary support for the immigration judge‘s decision. See
II
Alvarado-Herrera contends that DHS could not reinstate his 2013 expedited removal order because the order failed to comply with two of the requirements imposed by the regulation governing expedited removal,
First, the regulation states that an expedited removal order “must be reviewed and approved by the appropriate supervisor before the order is considered final.”
Second, the regulation states that, “[a]fter obtaining supervisory concurrence in accordance with paragraph (b)(7) of this section, the examining immigration official shall serve the alien with Form I-860 and the alien shall sign the reverse of the form acknowledging receipt.”
We lack jurisdiction to entertain these arguments. The statute authorizing reinstatement of prior removal orders states that the underlying order “is not subject to being reopened or reviewed.”
Alvarado-Herrera‘s arguments challenging the validity of his 2013 expedited removal order do not fall within any of the categories of reviewable issues, and this is not a habeas corpus proceeding in any event. We therefore dismiss this portion of Alvarado-Herrera‘s petition for review for lack of jurisdiction. See Pena v. Lynch, 815 F.3d 452, 455-56 (9th Cir. 2016).
III
Alvarado-Herrera next challenges the legality of the reasonable fear screening process, both facially and as applied to him.
His broadest contention is that the screening process itself is unlawful because the agency lacked statutory authority to create it. As noted above, the screening process requires a non-citizen to establish a “reasonable fear” of persecution or torture during an interview with an asylum officer. Only if the non-citizen succeeds in making that showing may he or she apply for withholding of removal and protection under CAT in a hearing
We analyze this contention under the familiar two-step framework established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). At step one we ask “whether Congress has directly spoken to the precise question at issue.” Id. Here, the answer to that question is no.
Congress enacted
The provision might be read to suggest that no such entitlement exists, for it states that non-citizens subject to reinstatement are “not eligible and may not apply for any relief under this chapter.”
Courts later held, however, that non-citizens in reinstatement proceedings are eligible for withholding of removal under
Alvarado-Herrera offers two main arguments in response. First, he points out that Congress expressly authorized similar screening interviews in expedited removal proceedings. See
Second, Alvarado-Herrera contends that a series of out-of-circuit cases involving the rights of stowaways supports his position. The courts in those cases held, under statutory provisions that have since been amended, that the Attorney General could not adjudicate the asylum claims of stowaways through an informal interview conducted by an immigration officer while affording all other asylum applicants a full hearing before an immigration judge. Selgeka v. Carroll, 184 F.3d 337, 344–45 (4th Cir. 1999); Marincas v. Lewis, 92 F.3d 195, 200–01 (3d Cir. 1996); Yiu Sing Chun v. Sava, 708 F.2d 869, 874–77 (2d Cir. 1983). Those decisions turned on the fact that Congress had mandated the creation of a single, uniform procedure for adjudicating the claims of all asylum applicants, irrespective of their status. That statutory command, the courts concluded, left no room for the Attorney General to create a different procedure applicable to just one category of applicants based on their status as stowaways. Here, we have no comparable command from Congress mandating that all applicants for withholding of removal and protection under CAT shall receive a hearing before an immigration judge.
Moving to step two of the Chevron analysis, we ask whether the agency‘s adoption of the reasonable fear screening process “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. To answer this question, we consider two different statutes with somewhat conflicting aims:
The enactment of
The regulation the agency adopted in response achieves both of Congress‘s objectives. It allows immigration officials “to quickly identify and resolve frivolous claims to protection,” thereby recognizing Congress‘s desire to ensure the swift removal of non-citizens subject to reinstatement.
Having permissibly chosen to fill a gap left by Congress by adopting a screening mechanism, the agency adopted screening procedures that are modeled on the procedures Congress adopted in the expedited removal context. See
Alvarado-Herrera contends that these procedures violate the Fifth Amendment‘s Due Process Clause because they do not afford non-citizens the right to present new evidence during the review hearing before an immigration judge. Alvarado-Herrera misconstrues the nature of a review hearing. In such hearings, the immigration judge sits in an appellate capacity, reviewing the written record prepared by the first-instance decision-maker (the asylum officer). Due process does not mandate the right to present new evidence to an appellate tribunal when a litigant has been afforded a reasonable opportunity to present evidence to the first-instance decision-maker.
Alvarado-Herrera also contends that the immigration judge failed to review the asylum officer‘s determination de novo, as DHS‘s regulations require. See Bartolome, 904 F.3d at 812. But the immigration judge acknowledged at the outset of the hearing that he was obligated to conduct “an independent review of the decision of the asylum officer.” Nothing in the record supports Alvarado-Herrera‘s contention that the immigration judge failed to do so.
IV
We turn, finally, to Alvarado-Herrera‘s factual challenge to the immigration judge‘s decision—namely, his claim that the adverse reasonable fear determination is not supported by substantial evidence. To establish a reasonable fear, Alvarado-Herrera
In our view, he did not succeed in making that showing as to the risk of persecution, but he did so as to the risk of torture.
The immigration judge found that Alvarado-Herrera failed to establish a reasonable fear of persecution because the record does not show that any harm Alvarado-Herrera might suffer at the hands of the 18th Street gang would occur on account of his “race, religion, nationality, membership in a particular social group, or political opinion.”
The immigration judge found that Alvarado-Herrera also failed to establish a reasonable fear of torture because he did not show that any torture the gang might inflict would occur with the consent or acquiescence of a public official. See
During his interview with the asylum officer, Alvarado-Herrera provided an account of his experiences in Honduras that both the asylum officer and the immigration judge deemed credible. In addition, Alvarado-Herrera described conditions of widespread police corruption in Honduras. Based in part on media reports and common knowledge among Hondurans, he asserted that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people. The asylum officer refused to credit these assertions because Alvarado-Herrera did not support them with additional corroborating evidence, and the immigration judge affirmed the asylum officer‘s determination without elaboration.
It is unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at this stage of the proceedings. Non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their apprehension by immigration authorities. See
Alvarado-Herrera‘s statements to the asylum officer provided adequate support for his claims about the prevailing country conditions in Honduras. More specifically, Alvarado-Herrera‘s account of the attack by 18th Street gang members offered details that corroborated his claim of widespread police corruption and complicity. He noted that the gang members who carried out the attack were dressed in police uniforms and displayed police badges to gain access to a private residential complex. Those details do not prove police complicity in the gang‘s attack, but they do suggest that his assertions about the 18th Street gang‘s alliance with the police may be based on more than mere idle speculation or rumor. Put differently, they give rise to at least a ten percent chance that his claims about police complicity in gang violence may in fact be true.
If Alvarado-Herrera‘s assertions about police corruption and complicity are accepted as true at this stage of the proceedings, any reasonable adjudicator would be compelled to conclude that they suffice to establish a “reasonable possibility” that he may be subjected to torture with government acquiescence, as that term has been defined in the relevant regulation. See
In sum, we conclude that the immigration judge‘s decision to affirm the asylum officer‘s reasonable fear determination as to torture was not supported by substantial evidence. We remand this case to the agency with instructions to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
Alvarado-Herrera‘s motion to supplement the record (Dkt. No. 17) is DENIED. See
PETITION FOR REVIEW GRANTED in part, DENIED in part, and DISMISSED in part; REMANDED with instructions.