Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Argueta-Hernandez v. Garland, (December 5, 2023) Case No. 22-60307 are as follows:

Case History

The Department of Homeland Security (“DHS”) reinstated a previous removal order relating to the Petitioner.

 

The Petitioner did not contest the reinstituted removal order, but filed applications for withholding of removal and protection under the Convention Against Torture (“CAT”).

 

In a subsequent hearing, an Immigration Judge denied the Petitioner’s applications.

 

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

 

The BIA agreed with the Immigration Judge and dismissed the Petitioner’s appeal.

 

The Petitioner then filed a petition for review of the BIA’s decision.

 

The Fifth Circuit Court of Appeal dismissed the petition for review.

 

The Fifth Circuit Court of Appeal then withdrew its original decision of dismissal and substituted a new decision.

 

 

Facts

 

Jurisdiction

• The Petitioner is a native of El Salvador who entered the United States around 2003 and was ordered removed in 2007.  The Petitioner then returned to the United States in 2010, 2018, and 2019.
• In September 2019, the DHS reinstated the Petitioner’s 2007 removal order.
• On this occasion, the Petitioner alleged fear of persecution from a criminal gang known as the “MS-13,” and based on this rationale filed applications for relief from removal known as withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, as amended (“the Act”) and CAT.
• An immigration judge denied his application and, on April 27, 2022, the BIA dismissed his appeal.
• The Petitioner filed a petition for review on May 26, 2022.

 

Persecution and CAT Claims

• The Petitioner testified credibly during removal proceedings that:

1. death threats had been made against him and his family,
2. the MS-13 targeted him based on his religion,
3. the MS-13 attempted to kill his son, which was supported by credible testimony, police reports, and other evidence (i.e. United States Department of State country conditions reports from the relevant years detailing gang threats to religious individuals, and expert analysis placing “the risk of torture or death as extremely likely” for the Petitioner).

 

• The El Salvador’s prosecutor’s office said there was nothing it could do for him except provide a document certifying that he could not stay in El Salvador.
• Ultimately, officials from each of the Salvadoran prosecutor’s office and the police told him there was nowhere in El Salvador that “he would be safe.”
• Nevertheless, the Immigration Judge concluded that the Petitioner had failed to establish past persecution or had a well-founded fear of future persecution.
• In particular, the Immigration Judge explained that “[m]ere verbal threats are generally insufficient to constitute persecution.”
• Furthermore, the Immigration Judge ruled that the harm suffered by the Petitioner was not motivated by his religion because the MS-13 allegedly “never stated that they were threatening [him] solely because of his involvement with the Church of God.”  Instead, the Immigration Judge concluded that he was targeted because of “his reputation as a good person . . . in the community.”

 

Issue

Jurisdiction

1. Whether denial of an application for withholding of removal under section 241(b)(3) of the Act and relief under the Convention Against Torture (“CAT”), although not a final order of removal, does not deprive an appellate court of jurisdiction, even though a petition for review is filed more than 30 days after the underlying removal order itself.  See section 242(b)(1) of the Act.
2. Whether the United States Supreme Court decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (An Immigration Judge’s withholding-only determination is “not itself a final order of removal[.]”) and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (“[T]he order of removal is separate from and antecedent to a grant of withholding of removal.”) do not overrule Ponce-Osorio v. Johnson, 824 F.3d 502, at 505–07 (5th Cir. 2016) which held that reinstatement orders are deemed “final” under section 242(b)(1) of the Act “only upon completion of reasonable-fear and withholding-of-removal proceedings[.]”
3. Whether, even though an order reinstating a removal order is not a final order, it can be reviewed by an appellate court upon the issuance of a final decision relating to withholding of removal and relief under the CAT.

 

Persecution Claim

1. Whether, in the absence of physical harm, threats of death and other serious harms can constitute persecution when they are objectively credible.
2. Whether it is not necessary for a persecutor to specifically reference a victim’s religious practices to justify persecution on account of religion.
3. Whether an applicant claiming persecution is not required to demonstrate conclusively why persecution has occurred or may occur, as long as a particularized connection between the feared persecution and a protected ground is established.

Held

Previous decision dismissing the Petition for Review for lack of jurisdiction WITHDRAWN

Petitioner for review GRANTED

REMANDED for proceedings consistent with appellate opinion

 

Rationale

 

Jurisdiction

The Fifth Circuit Court of Appeal reasoned as follows:

 

Withholding of Removal And CAT Decisions

 In its original decision on July 10, 2023, the Fifth Circuit Court of Appeal reasoned that:

• To invoke appellate court jurisdiction, a petitioner must, at a minimum, file a petition for review “no[] later than 30 days after” the order becomes final. See section 242(b)(1) of the Act.
• The 30-day deadline under section 242(b)(1) of the Act is “mandatory and jurisdictional” and cannot be equitably tolled.  Stone v. INS, 514 U.S. 386, at 405 (1995).
• A removal order is one that “conclud[es] that the alien is deportable or order[s] deportation.”  See section 101(a)(47)(A) of the Act.
• Orders denying CAT relief or withholding of removal are not orders of removal because they address the “separate [] and antecedent” issue of “where an alien may be removed,” not “whether an alien” is removable.  Johnson v. Guzman Chavez, 141 S. Ct. 2271, at 2286, 2288 (2021).
• Determinations relating to withholding of removal and CAT do not disturb the removal order, nor do they affect the validity of the removal order.  Nasrallah v. Barr, 140 S. Ct. 1683, at 1691 (2020).
• Regardless of whether withholding of removal or CAT relief is granted or denied, the DHS “retains the authority to remove the alien to any other country authorized by the statute.”  Johnson v. Guzman Chavez, at 2285.

 

Orders Reinstating Previous Removal Orders

• Although the Petitioner claims that his reinstated removal order is a final removal order in reliance on Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, at 295 (5th Cir. 2002), see also Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016), the United States Supreme Court implicitly overruled these cases.  Nasrallah v Barr and Johnson v. Guzman Chavez.
• Specifically, according to the United States Supreme Court, “[f]or purposes of [§ 1101(a)(47)], final orders of removal encompass only the rulings made by the [BIA] that affect the validity of the final order of removal.”  Nasrallah v. Barr, at 1691, and “Because the validity of removal orders is not affected by the grant of withholding-only relief, [the] initiation of [such] proceedings does not render non-final an otherwise ‘administratively final’ reinstated order of removal.”  Johnson v. Guzman Chavez, at 2288.
• Two circuits have recently held that withholding-only proceedings do not impact the finality of an order of removal.  Bhaktibhai-Patel v. Garland, 32 F.4th 180, at 190–95 (2d Cir. 2022); Farooq v. AG U.S., No. 20-2950, at 2023 U.S. App. LEXIS 3065, at *7 (3d Cir. Feb. 8, 2023).

 

Conclusion

An appellate court has no jurisdiction to consider the Petitioner’s claim relating to withholding of removal and CAT relief because: 

1. The BIA’s denial of the Petitioner’s application for withholding of removal and CAT relief is not a final order of removal, and
2. his petition is untimely because it was filed over 30 days after his reinstated removal order became final.

 

However, the Fifth Circuit Court of Appeal withdrew its July 10, 2023 decision and issued a new decision concluding that it did have jurisdiction over the Petitioner’s withholding of removal and CAT claims using the following rationale:
 

Exhaustion Requirement

• In Santos-Zacaria v. Garland, 598 U.S. 411 (2023), the United States Supreme Court overruled the Fifth Circuit Court of Appeal’s interpretation of section 242(d)(1) of the Act, grounded on Stone v. INS, 514 U.S. 386 (1995), and concluding that a petitioner’s failure to exhaust administrative remedies is a jurisdictional bar to appellate review.
• Therefore, the 30-day filing deadline relating to petitions for review set forth in section 242(b)(1) of the Act is not jurisdictional and consequently does not bar appellate review of the BIA’s denial of the Petitioner’s withholding of removal and CAT claims.

 

Orders Relating to Withholding and CAT Claims

• The United States Supreme Court decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (An Immigration Judge’s withholding-only determination is “not itself a final order of removal[.]”) and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (“[T]he order of removal is separate from and antecedent to a grant of withholding of removal.”) do not overrule Ponce-Osorio v. Johnson, 824 F.3d 502, at 505–07 (5th Cir. 2016) which held that reinstatement orders are deemed “final” under section 242(b)(1) of the Act “only upon completion of reasonable-fear and withholding-of-removal proceedings[.]”
• It cannot be the case that a petitioner may only seek review before reinstatement of a removal order, and without a full administrative record.
• A decision to the contrary could have disastrous consequences on the immigration and judicial systems because numerous petitioners would file premature petitions for review arising from immigration proceedings.
• In particular, “[i]t would lead to an increase in filings, as petitioners would inevitably have to file a petition for review to preserve the possibility of judicial review, even when unsure if they would need to, or even choose to, challenge the decision in the future[,]” which in turn “would require our court to dedicate resources to tracking and closing moot or abandoned petitions” and “to establish a system of holding petitions for review in abeyance for years at a time.” Alonso-Juarez v. Garland, 80 F.4th 1039, at 1053 (9th Cir. 2023).
• Therefore, the Petitioner’s timely petition for review regarding withholding of removal and protection under the CAT may be reviewed.

 

Withholding of Removal and CAT Claims

 

Harm

• To obtain a grant of withholding of removal, an applicant must establish a clear probability that his life or freedom will be threatened in the country of removal because of his race, religion, nationality, membership in a particular social group, or political opinion.  See section 241(b)(3)(A) of the Act; INS v. Stevic, 467 U.S. 407, 429–30 (1984).
• However, “[t]he harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.” Abdel-Masieh v. U.S. I.N.S., 73 F.3d 579, at 583 (5th Cir. 1996).
• Moreover, threats of violence against family members can support a finding of persecution so long as they are coupled with threats made directly to the petitioner.  See, e.g., Tamara-Gomez v. Gonzales, 447 F.3d 343, at 349 (5th Cir. 2006) (concluding that the record compelled a finding of persecution where it included, among other things, “threats of violence and acts of vandalism” against the asylum applicant’s family).
• Other circuits have similarly held that physical harm is not required for persecution.
• Relying on the absence of physical harm, the BIA concluded that the harm “suffered—including approximately five phone threats, surveillance, and an incident where a gang hitman followed his son—is not severe enough to rise to the level of persecution.”
• Threats of death and other serious harms, however, constitute persecution when they are objectively credible.  Zhu v. Gonzales, 493 F.3d 588, at 598–99 (5th Cir. 2007).
• The record under review contains several sustained credible death threats by MS-13 against Argueta-Hernandez and his family—threats so credible that numerous Salvadoran officials told the Petitioner to flee the country.
• To the extent that the BIA conflated the severity of harm and nexus analyses, it committed legal error by requiring that the Petitioner prove motive to establish persecution.  Eduard v. Ashcroft, 379 F.3d 182, at 192 (5th Cir. 2004) (holding that where the record and findings show a pattern of persecution based on Christianity in a country, “[p]etitioners were not required to show that they would be singled out for persecution upon return”).

 

Nexus

• “[T]he nexus requirement is not an ‘either-or’ proposition.” Therefore, a court must consider the existence of multiple motives for the persecutor’s actions when such evidence exists.  Ontunez-Tursios v. Ashcroft, 303 F.3d 341, at 349 (5th Cir. 2002); see also Rivas-Martinez v. I.N.S., 997 F.2d 1143, at 1148 (5th Cir. 1993) (remanding to BIA for consideration of mixed motives).
• By exclusively categorizing extortion and threats against the Petitioner and his family as a criminal motive that is not connected to a protected ground without considering other evidence suggesting a connection of the alleged persecutor’s motive with the Petitioner’s religion, the Immigration Judge and the BIA committed error.
• Nothing required the Petitioner to show that MS-13 explicitly said “he was not allowed to preach or otherwise exercise his religious rights.”
• Finally, the Immigration Judge and the BIA failed to consider one of the Petitioner’s proposed social group.
• Consequently, the BIA committed reversible error.

 

Commentary

Withholding and CAT Relief
 

Attorneys who successfully obtain a grant of withholding of removal for a client should not be surprised if the Immigration Judge also orders the client removed to a country other than the country where the risk of persecution exists.  A grant of withholding of removal is country specific and the DHS can remove an alien who has been granted withholding of removal by following the prioritized approach found in section 241(b)(1) of the Act.  See 8 C.F.R. §§ 241.15 and 241.25. 

The same is true for aliens applying for CAT relief.  The DHS may remove the applicant to another country (other than the proposed country of removal where the likelihood of torture exists) that is willing to accept the applicant

 

It might calm the nerves of some to know that during the 35 years that I have worked for the federal government I have never heard of an actual removal to a third country after a grant of withholding of removal or CAT relief.

It appears that the main reason aliens granted withholding of removal or CAT relief are rarely removed to a third country is the inability of the United States government to find another country that will accept such aliens.

 

Reinstatement

Perhaps, review of reinstatement of exclusion, deportation and removal orders in the context of immigration law which has expanded in scope over time will be helpful to some readers.

Section 241(a)(5) of the Immigration and Nationality Act, as amended (“the Act”) is brief enough to cite in its entirety:

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 Act, and the alien shall be removed under the prior order at any time after the reentry.

The immediate predecessor of section 241(a)(5) of the Act is section 242(f) of the Immigration and Nationality Act of 1952 (“the 1952 Act”).

Section 242(f) of the 1952 Act narrowly targeted specific classes of aliens for reinstatement of deportation or exclusion orders, who illegally reentered the United States after deportation or exclusion.  These classes of aliens were defined under paragraphs of section 241(a) of the 1952 Act:

• (4) persons convicted for crimes involving moral turpitude;
• (5) violators of the Alien Registration Act of 1940;
• (6) alien anarchists communists and subversives;
• (7) persons seeking to engage in activities prejudicial to public interest, dangerous United States welfare, safety or security, and activities in violation of laws relating to espionage, sabotage, public disorder, and subversive to national security;
• (11) drug addicts and traffickers;
• (12) prostitutes and persons who engage in organized prostitution and commercialized vice;
• (14) persons convicted for firearms violations;
• (15) persons convicted for violating title I of the Alien Registration Act of 1940;
• (16) persons with multiple convictions for violating title I of the Alien Registration Act of 1940;
• (17) generally, persons convicted for violations of neutrality, interference with foreign commerce and espionage; and
• (18) persons convicted for importing any alien for prostitution.

Congress broadened the scope of reinstatement of previous removal orders by replacing section 242(f) of the 1952 Act with section 241(a)(5) of the Act in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) enacted on September 30, 1996.

In particular, section 241(a)(5) of the Act, unlike section 242(f) of the 1952 Act, is not limited to specific classes of illegal reentrants, but applies to all illegal reentrants who illegally reenter the United States after a final removal order is enforced.  It seems reasonable to project, therefore, that more aliens who become subject to a reinstated removal order might be eligible to file relief applications if they can avoid the bar to relief imposed by section 241(a)(5) of the Act.

Prior to the September 30, 1996 enactment of IIRIRA, a reinstated deportation order under section 242(f) of the 1952 Act could be challenged by collaterally attacking the original deportation order under a “gross miscarriage of justice” standard.  Enforcement of a deportation or exclusion order constituted a gross miscarriage of justice only if the order clearly could not have withstood judicial scrutiny under the law in effect at the time of issuance or execution.

The Board of Immigration Appeals (“BIA”) published the following cases addressing the gross miscarriage of justice standard relating to application of section 242(f) of the 1952 Act:

• Matter of Malone, 11 I&N Dec. 730, at 731-32 (BIA 1966) (Collateral attack on a deportation order warranted when the finding of deportability was not in accord with the law as interpreted at that time and resulted in a gross miscarriage of justice).
• Matter of Farinas, 12 I&N Dec. 467, at 471-72 (BIA 1967) (A gross miscarriage of justice occurred where an alien was ordered deported and the decision could not have withstood judicial attack under the interpretation of prevailing law.).
• Matter of Roman, 19 I&N Dec. 855, at 856-57 (BIA 1988) (An alien may collaterally attack a final order of exclusion or deportation in a subsequent deportation proceeding only upon showing that the prior order resulted in a gross miscarriage of justice.).

The BIA, in In re G-N-C-, 22 I&N Dec. 281 (BIA 1988), in the context of a controversy involving termination of deportation proceedings, cited Matter of Roman, supra, and noted that “an alien may collaterally attack a final order of exclusion or deportation in a subsequent proceeding only upon showing that the prior order resulted in a gross miscarriage of justice.”  In addition, the BIA held that the Immigration Judge and the BIA lack jurisdiction to review a decision of the Immigration and Naturalization Service ("INS") to reinstate a prior order of removal pursuant to section 241(a)(5) of the Act.  See In re G-N-C-, headnote 3.

Jurisdiction

The Fifth Circuit Court of Appeal has now acknowledged in Argueta-Hernandez v. Garland, (December 5, 2023) Case No. 22-60307 that the 30-day deadline for filing petitions of review under section 242(b)(1) of the Act is not jurisdictional and does not permit an appellate court to spontaneously jettison a petition for review based on lack of jurisdiction. 

However, failure to file a petition of review within 30 days of a final order of removal or an order arising from withholding of removal and CAT applications in removal proceedings or reasonable-fear proceedings (8 C.F.R. § 1208.1(e)) could result in dismissal of the appeal if the DHS raises a valid objection based on section 242(b)(1) of the Act and extraordinary circumstances and sufficient diligence cannot be established to justify equitable tolling.

In the light of Argueta-Hernandez v. Garland, (December 5, 2023) No. 22-60307, prudence seems to demand scrutiny of the validity of the original final removal order when confronted with reinstatement.  Challenging the original removal order itself or its finality, might preserve an opportunity to seek appellate review in accordance with section 242(b) of the Act.

 

Level of Harm and Nexus

The record of proceedings in Argueta-Hernandez v. Garland, (December 5, 2023) Case No. 22-60307 reflect a narrow myopic rationale on the part of the Immigration Judge and the BIA that hints at what seems to be the application of boiler plate reasoning that sometimes squeezes out relevant facts like hot wax that oozes out from beneath a stamp used to seal envelopes prior to the 20^th century.

In other words, the boiler plate rationale is internally correct, but its application didn’t encompass all of the relevant evidence relating to the motive of the alleged the  level of harm and motive of the alleged persecutors.

As the Fifth Circuit Court of Appeal pointed out, the Immigration Judge and the BIA merely noted the absence of physical harm without addressing the aggregate impact of other factors that affect the level of suffering or harm.  In particular, the Immigration Judge and the BIA failed to assess five phone threats, surveillance, and an incident where a gang hitman followed the Petitioner’s son, and the assessment of Salvadoran authorities that the MS-13’s threats were credible and imminent.

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