TOMAS BARTOLOME, AKA T.B.H. v. JEFFERSON B. SESSIONS III, Attоrney General; THOMAS BARTOLIMAE-HERNANDEZ v. JEFFERSON B. SESSIONS III, Attorney General
No. 15-71666, 15-72671
United States Court of Appeals, Ninth Circuit
September 14, 2018
Agency No. A074-826-493; Argued and Submitted February 15, 2018 San Francisco, California
FOR PUBLICATION
On Petition for Review of an Immigration Judge‘s Decision
OPINION
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye,* District Judge.
Opinion by Judge N.R. Smith
SUMMARY**
Immigration
The panel denied Tomas Bartolome‘s petition for review of an immigration judge‘s decision affirming an asylum officer‘s negative reasonable fear determination in reinstatement removal proceedings, and granted and remanded his petition for review of the immigration judge‘s rejection for lack of jurisdiction of his motion to reopen reasonable fear proceedings.
The panel rejected Bartolome‘s contention that the asylum оfficer deprived him of due process by providing him a Spanish-language interpreter, rather than an interpreter in his native language Chuj, because Bartolome advised the asylum officer that he understood “a lot” of Spanish, did not indicate that he had problems understanding the interpreter, stated that the asylum officer‘s summary of his testimony was correct, and had an opportunity to correct any errors or submit additional evidence on review before the IJ.
The panel also rejected Bartolome‘s argument that the IJ deprived him of due process, concluding that the IJ gave Bartolome sufficiеnt time to prepare for his hearing and submit evidence, and adequately considered Bartolome‘s testimony and the evidence he submitted both to the asylum officer and the IJ. The panel noted that reasonable fear review proceedings are expedited and not full evidentiary hearings, and IJs are not required to provide detailed decisions outlining all the claims raised by the alien. The panel also rejected Bartolome‘s claim of IJ bias.
The panel held that substantial evidence supported the IJ‘s determination that Bartolome failed to demonstrate a reasonable fear of persecution, due to the lack of nexus between any harm and a protected ground, or a reasonable fear of torture.
The panel held that the IJ abused his discretion in denying on jurisdictional grounds Bartolome‘s motion to reopen because the IJ failed to recognize that he had at least sua sponte jurisdiction to reopen proceedings. The panel remanded for the IJ to exercise discretion whether to grant reopening.
COUNSEL
Siovhan Sheridan (argued), Sheridan Law Office P.C., Tucson, Arizona, for Petitioner.
Nancy K. Canter (argued), Trial Attorney; Keith I. McManus and Cindy S. Ferrier, Assistant Directors; Office of Immigrаtion Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
N.R. SMITH, Circuit Judge:
Aliens subject to reinstated orders of removal are placed in reasonable fear screening proceedings, if they express fear of persecution or torture in their country of removal.
Congress has authorized the expedited removal of aliens if “an alien has reentered the United States illegally after having been removed . . . under an order of removal.”
Despite this directive, Congress has also recognized that it must make exceptions for aliens who demonstrate a clear probability of persecution or torture.1 See
The regulations provide that, if a previously removed alien expresses a fear of persecution or torture, the Department of Homeland Security (“DHS“) shall refer the alien to “an asylum officer for a reasonable fear determination. In the absence of exceptional circumstances, this determination will be conducted within 10 days of the referral.”
To make the reasonable fear determination, “[t]he asylum officer shall conduct the interview in a non-adversarial manner, separate and apart from the general public.”
During the reasonable fear determination, the asylum officer elicits “all information relating both to fear of persecution and fear of torture.” Reasonable Fear of Persecution & Torture Determinations, INS AOBT 8/6/2008 *21, 2008 WL 7226112 (Aug. 6, 2008).3 Based on this evidence, the asylum officer determines whether there is a “reasonable possibility” that the alien established he or she would be persecuted on account of a protеcted ground or tortured in his or her country of
If an asylum officer concludes that the alien has a reasonable fear, the officer refers the alien to an IJ for a full consideration of a withholding of removal claim.
This “reasonable fear review hearing” is conducted by an IJ. It “is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings.” Immigration Court Practice Manual, ch. 7.4(e)(iv)(E).5 “[I]t is a [de novo] review of the DHS asylum officer‘s decision.”
PROCEDURAL HISTORY & FACTS
Tomas Bartolome is a native and citizen of Guatemala. He first entered the United States in 1994 illegally and without any governmental рermission. He applied for asylum, which was denied. He was thereafter deported from the United States in February 2008. In June 2008, Bartolome attempted to reenter the United States. However, DHS found him to be inadmissible and ordered his expedited removal. After removal, he remained in Guatemala until 2015.
On May 6, 2015, Bartolome and his attorney appeared before the asylum officer, and the asylum officer interviewed Bartolome. Bartolome explained to the officer that he feared returning to Guatemala, because gangs had extorted him. He claimed that gang members thought he had money, because his family resided in the United States.6 Bartolome also feared that he could be subject to persecution because his brother was involved in politics in Guatemala.
After the interview, the asylum officer issued a negative reasonable fear determination. Although the asylum officer found Bartolome credible, he concluded that Bartolome had failed to establish a reasonable possibility that he would be persecuted or subjected to torture upon his return. Bartolome then requested that an IJ review the asylum officer‘s negative reasonable fear determination. On May 14, 2015, the matter was referred to an IJ. The initial reasonable fear review hearing was scheduled for May 19, 2015. However, it was continued until May 22, 2015, to allow Bartolome‘s attorney time to prepare and to secure an appropriate interpreter. Prior to the hearing, Bartolome submitted additional documents in support of his claim that he has a reasonable fear of persecution or torture in Guatemala.
On May 22, 2015, Bartolome appeared with counsel before the IJ. Bartolome testified that he feared harm in Guatemala by local residents, who blamed him for damages caused by a civil engineering water project he was elected to oversee. He also claimed again that gang members had extorted him, because they believed he had money. After the IJ finished asking Bartolome questions, he asked Bartolome‘s counsel whethеr “there‘s anything else she would like [him], as the Judge, to consider.” Counsel referenced letters and statements and death threats. The IJ further questioned Bartolome regarding the threats. The IJ then inquired again whether there were any other areas of inquiry. Bartolome‘s counsel said there were none.
At that point, the IJ concluded that the asylum officer correctly decided that Bartolome was ineligible for withholding of removal. The IJ explained that Bartolome was not eligible for withholding of removal based on the evidence presented. Specifically, the IJ noted that withholding of removal was not available, because (1) the threats by villagers surrounding the damages caused from the water project and the threats by gang members have no nexus to a protected ground, and (2) there was no evidence that the government would not help him with the villagers or the gangs.
The IJ then issued the following written statement:
The Court concurs in the DHS Reasonable Fear Determination because Respondent‘s fear of possible civil liability for a village project he was elected to oversee, and fear of being harmed or killed by gang members who tried to extort money have no connection or nexus to a protected ground and there is no danger or evidence of torture risk from
government or with its acquiescence. . . .
The case is returned to DHS for removal of the alien. This is a final order. Pursuant to
On August 11, 2015, Bartolome filed a motion to reopen with the IJ. The IJ rejected the motion to reopen, concluding that “[t]he court has no authority over this motion. It is returned. Only DHS has authority to consider this motion.” Bartolome also separately requested that the USCIS reconsider its findings. USCIS responded that “reasonable fear screening determinations are not subject to motions to reopen or reconsider“; while it recognized it had sua sponte authority to reopen, it declined to do so in this case.
Bartolome timely appealed the IJ‘s negative reasonablе fear determination, and the IJ‘s rejection of his motion to reopen.
STANDARD OF REVIEW
We have jurisdiction to review “[a]n IJ‘s negative determination regarding the alien‘s reasonable fear” under
DISCUSSION
I. Reasonable fear determination before the asylum officer.
Bartolome asserts that he was deprived his due process rights and a fair hearing before the asylum officer, because he was provided a Spanish-language interpreter rather than an interpreter in his native language Chuj. We disagree.
First, a review of the asylum officer‘s notes shows that Bartolome indicated that he understood “a lot” of Spanish, “but there [were] some words” he did not know. He also consented to proceeding in Spanish and was provided a Spanish-language interpreter. The asylum officer made it clear that, if Bartolome did not understand something, he should tell the asylum officer. Bartolome agreed. At the conclusion of the hearing, the asylum officer asked Bartolome whether he had any problems understanding the interpreter, to which Bartolome stated he had none.8 The asylum officer also read back the summary of Bartolome‘s testimony to Bartolome. When asked whether he had any corrections or changes to make to the asylum officer‘s summary, Bartolome stated that the summary was correct and did not request to add anything.
Although Bartolome now argues that he was unable to present his whole story, he does not specifically indicate (outside of vague references to his political aсtivities) what evidence he was unable to present. Further, the record does not demonstrate that Bartolome was prevented (based on
Second, even if there were evidence of error, any possible error was or could have been remedied before the IJ in the reasonable fear review hearing. In this case, after the asylum officer concluded Bartolome did not have a reasonable fear of persecution or torture, Bartolome requested that an IJ conduсt a reasonable fear review hearing, which applies de novo review. “De novo review means that the [IJ] does not defer to the [asylum officer‘s] ruling but freely considers the matter anew, as if no decision had been rendered below.” Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009) (alterations, quotation marks, and citation omitted). In conducting the reasonable fear review hearing, the IJ reviewed all of the previously produced evidence, along with the asylum officers notes; heard additional testimony from Bartolome in his native tongue; and accepted additional documents supporting his claim. The IJ then issued his decision after having considered all of the evidence.
Lastly, both the asylum officer and the IJ found Bartolome to be credible and credited Bartolome‘s testimony. Bartolome was able to provide all additional details about his reasonable fear of persecution to the IJ. Therefore, any inability to present evidence before the asylum officer did not prejudice Bartolome, because he had an opportunity to present and did present his whole story to the IJ. Cf. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (noting that due process requires “the opportunity to be heard at a meaningful time and in a meaningful manner” (citation and quotation marks omitted)).
II. Reasonable fear review hearing before the IJ.
Aliens subject to removal under
Bartolome alleges several due process violations surrounding his reasonable fear review hearing before the IJ. He asserts that (A) the IJ failed to allow adequate time for Bartolome to obtain evidence; (B)
A. The regulations establish time deadlines fоr an IJ to conduct a reasonable fear review hearing. See
In accordance with these guidelines, the IJ reviewed the asylum officer‘s file and allowed Bartolome to testify in his native language and to present additional evidence (including statements from his wife and brother) prior to making his decision. Although Bartolome now argues that the IJ did not allow him to present evidence at a hearing, we can find no merit in that argument as Bartolome presented evidence at the hearing. Bartolome also made no effort to call any other witnesses. As to a prehearing statement, even assuming that Bartolome attempted to file a prehearing statement (which is not in the record), the IJ would have been within his or her discretion to disallow it.
Bartolome was also provided more time than allowed by the regulations. A short continuance was granted to obtain a Chuj-language interpreter and to allow Bartolome‘s counsel to prepare. After the brief continuance was granted, neither Bartolome nor his attorney requested additional time to obtain supporting еvidence.
B. Reasonable fear review hearings again are not full evidentiary hearings. Like reinstatement orders, reasonable fear review proceedings are intended to be expedited and efficient. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489–91 (9th Cir. 2007). In expedited proceedings (such as these), IJs do not have the ability nor are they required to provide detailed decisions outlining all the claims
First, the IJ noted that he considered all of the evidence, and concluded that he would not change the asylum officer‘s decision. We have no basis to assume that the IJ failed to consider the evidence before him. Although the IJ did not address all of the evidence and claims specifically, he concluded that Bartolome‘s activities and the incidents with gang members had no connection or nexus to a protected ground, and there was no “danger or evidence of torture risk” with government acquiescence.11
Where, as here, the evidence in the record does not compel a conclusion that the IJ erred in concluding that Bartolome did not establish a reasonable fear of persecution, Andrade-Garcia, 828 F.3d at 833, we cannot find Bartolome‘s due process claim that the IJ ignored evidence has merit, cf. Larita-Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000) (“[A]n alien attempting to establish that the Board violated his right to due process by failing to consider relevant evidеnce must overcome the presumption that it did review the evidence.“). Reviewing for substantial evidence, the record supports the IJ‘s decision. Bartolome asserts three separate reasons for fearing return to Guatemala: (1) gang violence, (2) his participation in the water project, and (3) his brother‘s political activities.
Reviewing the testimony and the evidence submitted, substantial evidence supports the conclusion that none of these reasons provide a basis for withholding of removal. First, gangs did not target Bartolome based on a protected ground. Rather, the gangs targeted him bеcause they perceived him to have money, which we have not recognized as a cognizable social group. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). Second, threats based on Bartolome‘s involvement in the installation of water pipes and a sewer system are not persecution on a protected ground. Although Bartolome attempts to couch the activity as politics, this is not a “political opinion.” Cf. Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017 (9th Cir. 2011). Finally, although an imputed political opinion would be a basis for withholding of removal, Bartolome failed to establish any threat of future persecution based on his brother‘s membership in the Mano Duro Pаrtido Party. His brother has not been harmed by the opposition party, nor did Bartolome establish that he, himself, was threatened or harmed by the opposition party. Speculation on what could occur is not enough to establish a reasonable fear. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003). Similarly, Bartolome failed to provide any evidence that he would be or was in danger of being tortured with the acquiescence of the government.
III. Motion to Reopen
No statute or regulation specifically addresses whether an alien may file a motion to reopen reasonable fear proceedings. However, in Ayala v. Sessions, we concluded that the IJ abused its discretion in not reconsidering the petitioner‘s motion for reconsideration of such proceedings. 855 F.3d at 1020–21. Although the petitioner in Ayala filed a motion for reconsideration rather than a motion to reopen, the procedures are the same for both motions. See
Here, Bartolome filed a motion to reopen before the IJ. The IJ rejected the motion, concluding he lаcked jurisdiction to reopen the matter. This conclusion is contrary to our holding in Ayala and thus was error. The IJ‘s failure to recognize that he had at least sua sponte jurisdiction to reopen proceedings was an abuse of discretion. See Singh v. Holder, 771 F.3d 647, 650, 653 (9th Cir. 2014) (noting that when the BIA concludes that it lacks the authority to reopen, rather than denying a motion to reopen as an exercise of discretion, the panel has jurisdiction and remand is required). We therefore remand the matter to the IJ to determine whether an exercise of his jurisdiction is warranted.
Parties shall bear their own costs on appeal.
PETITION FOR REVIEW GRANTED IN PART; DENIED IN PART.