Compelling the Contrary Conclusion of Any Reasonable Adjudicator and the Last Resort
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On August 31, 2021, the Fifth Circuit Court of Appeal published a decision in which it applied the statutory standard for appellate review under section 242(b)(4)(B) of the Act to the conclusion of the Immigration Judge and the Board of Immigration Appeals (“BIA”) that Honduran government officials did not acquiesce to the Petitioner’s torture by the MS-13 gang. Sergio L. Tabora Gutierrez v. Merrick Garland, (5th Cir. August 31, 2021) No. 19-60408.
The procedural history, facts of record, holding and rationale in Sergio L. Tabora Gutierrez v. Merrick Garland, (5th Cir. August 31, 2021) No. 19-60408 are as follows:
Case History
The Petitioner was found to be subject to removal under section 212(a) (7)(A)(i)(I) of the Immigration and Nationality Act, as amended (“the Act”) as an immigrant applying for admission to the United States without an immigrant visa or other suitable travel document.
On May 24, 2018, the Petitioner applied pro se (a respondent who is representing himself or herself) for asylum and withholding of removal.
On June 18, 2018, with the assistance of counsel, the Petitioner filed an amended application including an application for withholding of removal under the Convention Against Torture (“CAT”) provided in section 241(b)(3) of the Act.
On September 5, 2018, the Immigration Judge denied the Petitioner’s applications.
The Board of Immigration Appeals (“BIA”) affirmed.
The Petitioner timely petitioned for review.
Facts
The Petitioner is a native and citizen of Honduras who entered the United States without inspection.
In December 2013, gang members had tried to recruit the Petitioner. When he refused to join, they angrily threatened him.
Gang members again confronted the Petitioner in 2014. The Petitioner was given the choice to join or pay a war tax of $25–30 each week. He adamantly refused, and the gang members said he would be killed if he did not pay.
Gang members found the Petitioner again in August 2014 and threatened to kill him.
In September 2017, four gang members assaulted the Petitioner in a restaurant. He was beaten, kicked, and stabbed with a broken bottle for over twenty minutes, while telling him the beating was in retaliation for not joining MS-13.
The Petitioner passed out and awoke in an emergency clinic.
Afterwards, the Petitioner relocated his family to another city, where he spent almost two months recuperating. He reported the beating to local police, but the police did not give him report or any information about an investigation.
In December 2017, masked gunmen confronted the Petitioner and his wife, shooting the Petitioner three times in the chest or stomach, buttocks, and leg; and shooting his wife twice. They survived, however, after spending six days in the hospital.
When they returned home, neighbors told them armed men had come looking for them. The Petitioner then moved his family again.
The Petitioner reported the shooting to police in Choloma and San Pedro Sula, identifying the masked shooters as MS-13 members by the tattoos on their arms.
The Choloma officers told him they “could not help [him]” and that if he “valued [his] life, [he] should flee from the country.” Sergio L. Tabora Gutierrez v. Merrick Garland, at 5.
The San Pedro Sula officers sent him to a local prosecutor’s office, where he filed a statement on February 1, 2018.
The Petitioner admitted he did not know who had shot him and his wife.
The woman who took his statement stated “they would get [her] at [her] house” if she wrote down who shot him. She also “didn’t want to include” the shooters’ gang affiliation in the report. Sergio L. Tabora Gutierrez v. Merrick Garland, at 5.
The Immigration Judge found the Petitioner was “generally credible,” noting that “he provided a detailed, plausible, and coherent account of his past experiences,” as well as “corroborating evidence” in the form of “medical documentation, photographs, and a police report.” Sergio L. Tabora Gutierrez v. Merrick Garland, at 5-6
With regard to his asylum application, the Immigration Judge determined that the Petitioner’s past persecution, while sufficiently severe, was not perpetrated on account of any protected ground. See section 208(b)(1)(B)(i) of the Act (providing “at least one central reason” for persecution must be “race, religion, nationality, membership in a particular social group, or political opinion”). Instead, his treatment resulted from “the unfortunately commonplace criminal agenda of MS-13: to recruit, extort, threaten, and retaliate against those who defy them.” Sergio L. Tabora Gutierrez v. Merrick Garland, at 6.
This conclusion also foreclosed the Petitioner’s alternate claim that he had a well-founded fear of future persecution. See, for example, Zhao v. Gonzales, 404 F.3d 295, at 307 (5th Cir. 2005) (future persecution claim must show reasonable fear of persecution on account of same protected grounds as past persecution). See section 101(a)(42)(A) of the Act.
With regard to the Petitioner’s application for withholding of removal under section 241(b)(3)(A) of the Act, the Immigration Judge reasoned that the failure of his asylum claim meant that the Petitioner could not satisfy the higher standard for withholding of removal. Majd v. Gonzales, 446 F.3d 590, at 595 (5th Cir. 2006).
Turning to the Petitioner’s CAT application, the Immigration Judge found that “MS-13 is more likely than not to torture or kill him upon his return.” Nevertheless, the Immigration Judge denied the CAT application and ordered the Petitioner removed to Honduras, concluding that any such torture would occur without the “consent or acquiescence” of Honduran officials. Sergio L. Tabora Gutierrez v. Merrick Garland, at 2,7.
Held
Petition for Review DENIED
Rationale
The Petitioner abandoned any grounds for contesting the denial of his asylum and withholding of removal claims and solely identified two issues concerning his CAT claim:
1. The BIA applied the wrong standard of review to the Immigration Judge’s acquiescence finding. Specifically, the Petitioner asserted that acquiescence to torture of a public official is a mixed question of law and fact and that the BIA should have reviewed the ultimate question of state acquiescence de novo (i.e legalese for a new decision unaffected by a previous decision) instead of for clear error. De novo appellate review applies to conclusions of law and review for clear error is the appellate standard that applies to findings of fact.
2. Alternatively, the evidence compels the conclusion that Honduran officials will acquiesce to his torture.
The Fifth Circuit Court of Appeal dismissed the Petitioner’s first issue for lack of jurisdiction because the Petitioner was required to exhaust the issue by raising it in a motion for reconsideration. See Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020) (“Avelar-Oliva’s contention that the BIA misapplied the standard of review should have been presented to the BIA in a motion for reconsideration.”). Sergio L. Tabora Gutierrez v. Merrick Garland, at 12-13.
The Fifth Circuit Court of Appeal then reasoned as follows:
• To implement the regulatory scheme under 8 C.F.R. §§ 1208.16(c)(2) and 1208(a) (i.e. regulations promulgated to implement section 241(b)(3) of the Act relating to withholding of removal based on the CAT) the Fifth Circuit Court of Appeal utilizes a two-part analysis. An alien must show (1) “it more likely than not that [he] will be tortured upon return to his homeland”; and (2) “sufficient state action involved in that torture.” Iruegas-Valdez v. Yates, 846 F.3d 806, at 812 (5th Cir. 2017) (citing Garcia v. Holder, 756 F.3d 885, at 891(5th Cir. 2014); see also, e.g., Morales v. Sessions, 860 F.3d 812, at 818 & n.28 (5th Cir. 2017); Tamara-Gomez, 447 F.3d at 350–51 (5th Cir. 2006).
• The Fifth Circuit Court of Appeal cannot reverse the BIA “unless we decide ‘not only that the evidence supports a contrary conclusion, but also that the evidence compels it.’” [emphasis added] Chen v. Gonzales, 470 F.3d 1131, at 1134 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404 F.3d at 306 (5th Cir. 2005)); see also section 242(b)(4)(B) of the Act (agency’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) [emphasis added].
• The BIA and the Immigration Judge interpreted the evidence, not to show the police “willfully ignored” the attacks or “bre[a]ched its duty” to prevent them, but rather to show the police “may not have been in possession of sufficient evidence to take further action.” Because the evidence does not compel a contrary conclusion, the Immigration Judge’s findings, which the BIA adopted, are “conclusive.” See section 242(b)(4)(B) of the Act. See Ramirez-Mejia v. Lynch, 794 F.3d 485, at 494 (5th Cir. 2015) (evidence did not compel finding acquiescence where police “advised [claimant] to leave the country” after she received gang threats); see also, e.g., Martinez Manzanares v. Barr, 925 F.3d 222, 229 (5th Cir. 2019) (“[A] government’s inability to protect its citizens does not amount to acquiescence [under the CAT].”) (citing Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019)); Tamara-Gomez, 447 F.3d at 351 (concluding “neither the failure to apprehend the persons threatening the alien, nor the lack of financial resources to eradicate the threat or risk of torture constitute[s] sufficient state action for [CAT] purposes”); 8 C.F.R. § 1208.18(a)(7) (official does not breach a duty to intervene “if such person is unable to intervene, or if the person intervenes but is unable to prevent the activity that constitutes torture”).
• The BIA concluded “the fact that a frightened police officer feared stating MS-13’s identity in a police report is insufficient to establish that the Honduran authorities had sufficient evidence to take action on his complaint, but were willfully blind by failing to do so.” While the Immigration Judge and BIA could have made a different finding—namely, that the official’s fear of MS-13 meant she would turn a blind eye to the Petitioner’s torture—the evidence did not compel them to do so. See, e.g., Martinez-Lopez v. Barr, 943 F.3d 766, 773 (5th Cir. 2019) (allegations of “the unwillingness of the Honduran police to investigate gang violence may weigh against the Immigration Judge’s conclusion, but they do not compel the opposite conclusion”) (cleaned up); Ramirez-Mejia v. Lynch, 794 F.3d 485, at 494 (5th Cir. 2015) (evidence did not compel finding acquiescence where police “advised [claimant] to leave the country” after she received gang threats); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, at 354 (5th Cir. 2002) (finding of acquiescence not compelled where evidence provided “at least some explanation” why government did not arrest third parties).
• Although the Petitioner established that it is more likely than not that the MS-13 [gang] will torture him in Honduras, the evidence does not compel the conclusion that this torture will occur with the consent or acquiescence of Honduran officials.
See Sergio L. Tabora Gutierrez v. Merrick Garland, at 11-16.
Commentary
The Fifth Circuit Court of Appeal clearly signaled its disappointment with the outcome of the controversy under review by suggesting consideration of deferred action in the last sentence of its decision:
Nothing we say here prevents the government, as it suggested at oral argument, from assisting Tabora Gutierrez with a discretionary grant of deferred action to prevent his removal to Honduras.
See Sergio L. Tabora Gutierrez v. Merrick Garland, at p. 17 (5th Cir. August 31, 2021) No. 19-60408.
Dissenting Circuit Judge, W. Eugene Davis directly criticized the outcome of the majority decision by pointing out distinctions in the case law cited in support of the petition denial and declaring that he interpreted the record “to compel a conclusion that the torture will be with the acquiescence of a public official.” Sergio L. Tabora Gutierrez v. Merrick Garland, Dissenting Opinion, at p. 18.
Unfortunately, the strenuous standard for appellate review proved to be an insurmountable barrier for the Petitioner. By law, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." See section 242(b)(4)(B) of the Act.
Sergio L. Tabora Gutierrez v. Merrick Garland, therefore, reveals nothing new about the criteria for CAT relief. The standard for appellate review dominated process of review and dictated the outcome.
The primary lesson to be learned from Sergio L. Tabora Gutierrez v. Merrick Garland seems obvious and even trite. It is preferable to win the battle of persuasion in the foot hills of the trial court than to fight the battle of persuasion in the thin mountain air of the appellate court.
Sergio L. Tabora Gutierrez v. Merrick Garland, however, illustrates an important lesson for immigration practitioners. Do not forget the importance of motions to reconsider (discussed in a previous post) to preserve legal positions for prosecution on appeal. See section 240(c)(6) of the Act.
As noted above, Tabora Gutierrez forfeited his claim that the BIA had applied the wrong standard of review to the Immigration Judge’s acquiescence finding by not filing a motion to reconsider. Sergio L. Tabora Gutierrez v. Merrick Garland, at 12-13. A motion to reconsider addresses error made at the time the original decision is rendered and seeks re-examination of the original factual record in the light of new law or new legal arguments. See 8 C.F.R. § 1003.23(b)(2). Matter of Cerna, 20 I&N Dec. 399, at 402 & headnote 5 (BIA 1991).
If an administrative decision maker does not address all of a client's legal arguments a motion to reconsider should be timely filed within 30 days of the date of entry of a final administrative order of removal. See section 240(c)(6)(C) of the Act; 8 C.F.R. § 1003.23(b)(1).
So what about deferred action?
The term, “deferred action,” was just another artifact of arcane immigration jargon until June 15, 2012 when then-President Barack Obama established the Deferred Action for Childhood Arrival program (“DACA”).
To avoid confusion, it is important to keep in mind that deferred action exists separately and apart from DACA. DACA is a broad policy driven program that provides procedures and benefits for a broadly defined, multitudinous class of aliens. Deferred action, on the other hand, is a limited DHS administrative tool utilized to discretely exercise discretion case by case.
Deferred action or its equivalent has probably existed since the inspection process was transferred to federal officers in 1891. See the Act of March 3, 1891 (which directly led to the opening of Ellis Island in New York on January 1, 1892).
It continues to exist as a discretionary tool today. Deferred action is generally an unwritten discretionary means of prioritization on a case by case basis of the deportation or removal of individual aliens with final deportation or removal orders.
Usually, deferred action takes the form of an informal stay of deportation or removal. However, it can serve as a predicate for termination of immigration proceedings at the request of the DHS. In my experience while working for the former INS, deferred action was granted sparingly. I remember deferred action being granted to aliens with serious medical conditions or who were terminally ill.
Deferred action, in written form, found its way into what is known as a manual of former INS Operations Instructions (Operations Instruction § 242.1(a)(22)). However, the operations instruction was withdrawn on or about June 24, 1997 following the enactment of IIRIRA (September 30, 1996). Nevertheless, the former INS continued to utilize this discretionary tool after withdrawal of the operations instruction, and deferred action is currently utilized by the DHS.
Before it was withdrawn, Operations Instruction § 242.1(a)(22) stated:
The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases.
The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:
(A) the likelihood of ultimately removing the alien, including:
(1) likelihood that the alien will depart without formal proceedings (e.g. minor child who will accompany deportable parents);
(2) age or physical condition affecting ability to travel;
(3) likelihood that another country will accept the alien;
(4) the likelihood that the alien will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;
(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;
(C) the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions;
(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g. dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).
The former INS sometimes granted deferred action (as that term is generally understood) to certain alien beneficiaries who would immediately become eligible for adjustment of status based on a prima facie (i.e. on the face or surface of the record) approvable adjustment application. See Matter of Garcia, 16 I&N Dec. 653, at 656 (BIA 1978) (discussing Operations Instruction § 242.1(a)(25)).
Operations Instruction § 242.1(a)(25) focused specifically on potential adjustment of status beneficiaries as follows:
. . . Pending final adjudication of a petition which has been filed, the district director will not deport, or institute proceedings against, the beneficiary of the petition if approval of the petition would make the beneficiary immediately eligible for adjustment of status under section 245 of the Act or for voluntary departure under the Service policy set forth in Operations Instruction 242.10(a)(6)(i). The district director may, however, seek to deport or institute proceedings against the beneficiary when it is determined that the petition is frivolous or there are substantial adverse factors which, based on the district director's opinion, would probably lead to the denial of adjustment of status or extended voluntary departure in the exercise of discretion.
Again, the former INS district directors would process deferred action requests on a case by case basis, as opposed to applying deferred action to a group or class of aliens. As a purely discretionary administrative act, former INS and DHS district directors did and can spontaneously grant deferred action.
No statute provides for deferred action. In the entire body of immigration regulations under Title 8, only one written reference to deferred action can be found as indirect evidence that it actually exists. See 8 C.F.R. § 274a.12(c)(14). Under this regulation, an alien who has been granted deferred action is one of an enumerated list of aliens who must affirmatively apply for work authorization.
Finally, it is important to know that Immigration Judges have no jurisdiction over deferred action (or DACA). Matter of Medina, 19 I&N Dec. 734 (BIA 1988); Johnson v. INS, 962 F.2d 574, at 579 (7th Cir. 1992); and, as pointed out by the Fifth Circuit Court of Appeal in Sergio L. Tabora Gutierrez v. Merrick Garland, at p. 3, “federal courts lack authority to grant deferred action . . ..”
Therefore, any alien seeking deferred action is completely at the mercy of the DHS.
Deferred action is the last resort for Tabora Gutierrez and, perhaps, for others. It should not be forgotten by immigration practitioners.
Having abused the patience of the reader by what might seem like a lengthy digression on the subject of deferred action, a slight continuation of the abuse might be overlooked.
Attorneys and others who suspect an abuse of discretion by an agency decision maker might benefit from discovering the unpublished operations instruction (if any) that applies to their controversy. For example, the Fifth Circuit Court of Appeal determined that the BIA “abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.” [emphasis added] Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (per curiam) (i.e. by unanimous agreement).
Operation Instructions can be used to demonstrate a government agency's "established policies" in an effort to assert an abuse of discretion claim if the agency departs from such "estabished policies" and treats one individual differently than others in the same or similar circumstances. The agency might not have a good explanation.