Rejection of the “Inherently Unbelievable” Standard of Review of Motions to Reopen
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On September 24, 2021, the Fifth Circuit Court of Appeal determined that the BIA is not required to apply the “inherently unbelievable” standard which requires the BIA to accept all facts alleged in a motion to reopen as true unless they are “inherently unbelievable” when reviewing a motion to reopen to determine if prima facie eligibility (i.e. legalese meaning superficial showing) for the relief sought in a reopened proceeding exists. Muntaser B. Abubaker Abushagif v. Garland, (5th Cir. 2021) No. 19-60807.
Apparently, the Fifth Circuit Court of Appeal and the Fourth Circuit Court of Appeal agree in rejecting the “inherently unbelievable” standard of review. See M.A. A26851062 v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (en banc) (i.e. legalese meaning a decision by all judges who are members of the court), superseded by statute on other grounds as stated in Peter v. Gonzales, 210 F. App’x 303, 307 (4th Cir. 2006) (per curiam) (i.e. legalese meaning by unanimous decision).
However, as noted above, six other circuit courts of appeal, at least de facto (i.e legalese meaning as a matter of fact or in practice), enforce the “inherently unbelievable” standard of review. See Gebremichael v. INS, 10 F.3d 28, 40 (1st Cir. 1993) (not using the term “inherently unbelievable” but requiring the BIA to “accept as true the facts stated in an alien’s affidavits;” Shardar v. Att’y Gen. of U.S., 503 F.3d 308, at 313 (3rd Cir. 2007); Trujillo Diaz, 880 F.3d at 252–53; Fessehaye v. Gonzales, 414 F.3d 746, at 755 (7th Cir. 2005); Bhasin v. Gonzales, 423 F.3d 977, at 987 (9th Cir. 2005); Haftlang v. INS, 790 F.2d 140, at 143 (D.C. Cir. 1986).
The procedural history, facts of record, holding and rationale in Marcelo Eugenio Rodriguiez, also known as Muntaser B. Abubaker Abushagif v. Garland are as follows:
Case History
An Immigration Judge ordered the Petitioner to depart from the United States on or before April 5, 2012.
In 2019, the Petitioner moved to reopen his proceedings.
The Immigration Judge denied the Petitioner’s motion to reopen.
The Petitioner appealed to the Board of Immigration Appeals (“BIA”).
The BIA affirmed the immigration judge’s decision and dismissed the appeal.
The Petitioner filed a Petition for Review.
Facts
The Petitioner is a native and citizen of Libya who was admitted to the United States as a non-immigrant student but failed to carry a full course of study despite a condition that he do so.
The Department of Homeland Security (“DHS”), therefore, initiated removal proceedings in September 2010.
Libya became engulfed in a civil war in February 2011.
In September 2011, with the war raging in Libya and with Muammar Qadhafi still leading the country, the Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). See 8 C.F.R. 1208.16(c).
In December 2011, the Immigration Judge held a hearing on the Petitioner’s applications. By that time, Qadhafi’s administration had collapsed, and he had been killed by rebels.
At the hearing, the Petitioner withdrew his application and agreed to voluntary departure.
The voluntary departure order required the Petitioner to depart from the United States on or before April 5, 2012.
The Petitioner, however, did not leave.
In January 2019, he filed a motion to reopen and stay removal, requesting that his proceedings be reopened to allow him to apply asylum, withholding of removal, and protection under CAT (the same relief applications he had abandoned when he had agreed to voluntary departure in December 2011). See sections 208, 241(b)(3) of the Immigration and Nationality Act, as amended (“the Act”) and 8 C.F.R. § 1208.16(c)(2), respectively.
The Immigration Judge denied the motion to reopen and stay removal. Among other findings, the Immigration Judge identified several inconsistences between Petitioner’s initial application and his motion to reopen, as well as discrepancies between the Petitioner’s statements in the motion and his supporting documentation.
Upon review of the Petitioner’s appeal from the Immigration Judge’s decision, the BIA determined that the Immigration Judge had not committed clear error in concluding that there were materially inconsistent statements between the Petitioner’s initial application and his motion to reopen; and that the Petitioner had not provided evidence to corroborate his conversion to Christianity or his bisexuality (which the Petitioner alleged, in part, to form a motive for future persecution).
Held
Petition granted
BIA decision vacated
Remanded
Rationale
The Petitioner asserted that that the BIA had applied an incorrect legal standard in assessing his motion to reopen.
Specifically, he asserted that the Fifth Circuit Court of Appeal should adopt the “inherently unbelievable” standard which requires the BIA to accept all facts alleged in a motion to reopen as true unless they are “inherently unbelievable.” See Hernandez-Ortiz v. INS, 777 F.2d 509, at 514 (9th Cir. 1985).
Thus, according to the Petitioner, the facts alleged in a motion to reopen must be incredible or beyond belief to justify denying a motion to reopen for failure to establish a prima facie eligibility for the relief sought in reopened immigration proceedings.
• The Fifth Circuit Court of Appeal articulated its standard for review, referencing its own precedent case law:
In reviewing the denial of a motion to reopen removal proceedings, we apply a highly deferential abuse-of-discretion standard. Nunez v. Sessions, 882 F.3d 499, at 505 (5th Cir. 2018) (per curiam). We affirm the BIA’s decision so long as “it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Gonzalez-Cantu v. Sessions, 866 F.3d 302, at 304–05 (5th Cir. 2017) (quoting Gomez-Palacios v. Holder, 560 F.3d 354, at 358 (5th Cir. 2009)). We review the BIA’s legal conclusions de novo, however, “unless a conclusion embodies the Board’s interpretation of an ambiguous provision of a statute that it administers.” Singh v. Gonzales, 436 F.3d 484, at 487 (5th Cir. 2006).
• The Fifth Circuit Court of Appeal quoted the United States Supreme Court to establish grounds of denial relating to motions to reopen. “There are at least three independent grounds on which the BIA may deny a motion to reopen.” INS v. Abudu, 485 U.S. 94, at 104-105 (1988):
1. The Board may determine that the alien “has not established a prima facie case for the underlying substantive relief sought.” See INS v. Abudu, at 104.
2. The Board may determine that the alien “has not introduced previously unavailable material evidence, or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially.” See INS v. Abudu at 104–05.
3. Where “the ultimate grant of relief is discretionary,” the Board can “simply determine that . . . the movant would not be entitled to the discretionary grant of relief.” See INS v. Abudu, at 105.
• The Fifth Circuit Court of Appeal rejected the Petitioner’s advocacy for the “inherently unbelievable” standard, and again cited the United States Supreme Court, stating that in Garland v. Dai, 141 S. Ct. 1669 (2021), the United States Supreme Court struck down a judge-made standard for the BIA’s review of the Immigration Judge’s determinations. Garland v. Dai, at 1677. The Fifth Circuit Court of Appeal observed that, according to the United States Supreme Court, the Ninth Circuit’s rule that required the BIA to credit an alien’s testimony absent an explicit adverse credibility determination by the Immigration Judge is incompatible with the Act. See Garland v. Dai, at 1681. The Fifth Circuit Court of Appeal further noted that United States Supreme Court had relied on the “settled” principle “that a reviewing court is ‘generally not free to impose’ additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel.” See Garland v Dai, at 1681 (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, at 524 (1978)).
Ultimately, the Fifth Circuit Court of Appeal declined to require the BIA to apply the “inherently unbelievable” standard when reviewing a motion to reopen for failure to state a prima facie case for the underlying relief sought.
Instead, the Fifth Circuit Court of Appeal reviewed the BIA’s decision for abuse of discretion, stating that it will “affirm the BIA’s decision so long as ‘it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.’” See Gonzalez-Cantu v. Sessions, 866 F.3d 302, at 304–05 (5th Cir. 2017) (quoting Gomez-Palacios v. Holder, 560 F.3d 354, at 358 (5th Cir. 2009)).
Commentary
Outside of a litigation context, when we hear another person tell a story or recount an experience we tend to intuitively fact check and measure what is being told according to our personal banks of knowledge and pre-formed notions about the information that is communicated to us. We then decide what in the communicated information is credible and what is not.
Decision makers, such as Immigration Judges, in a litigation context do the same thing, except a decision maker does not have free rein to rely entirely on personal knowledge and pre-formed notions. Credibility assessments by decision makers in litigation context assessments must be anchored to the totality of circumstances contained in the record of proceedings.
So what is the starting point? I have known some Immigration Judges who start out not believing anything until provided with a reason to believe it. Other Immigration Judges accept information as true, until given a reason not to believe it.
Regardless of a decision maker’s starting point with regard to credibility assessments, it must be tied to the totality of circumstances reflected in the record of proceedings. See generally Wang v. Holder, 569 F.3d 531, at 538 (5th Cir. 2009) (adverse credibility finding may be supported by “any inconsistency or omission . . . as long as the totality of the circumstances establishes that an asylum applicant is not credible”).
In response to a due process challenge the Third Circuit Court of Appeal determined that is not improper for an Immigration Judge to question the logic of the facts offered in support of an asylum claim. Abdulrahman v. Ashcroft, 330 F.3d 587, at 596 (3rd Cir. 2003), citing In Re J.P. Linaham, Inc., 138 F.2d 650, at 654 (2nd Cir. 1943):
Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.
While sitting as a spectator in a deportation hearing in Miami, Florida, I remember an Immigration Judge embellish overruling an objection to questions from the bench by declaring that he (the judge) was not a potted plant.
After all, the duties of an Immigration Judge are described in pertinent part as follows: “The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses . . .” See section 240(b)(1) of the Act.
It might be interesting to some to observe that the description of the duties of an Immigration Judge in section 240(b)(1) of the Act is essentially the same as the description of the duties of special inquiry officers in former section 242(b) of the 1952 Act. So there is a long history in the immigration law of dual prosecutorial and judicial functions in the role of Immigration Judges.
Immigration Judges must make specific choices along the tension line between prosecutor and judge in conducting removal hearings and issuing decisions. The historical trend for the immigration court, however, has been in the direction of emphasizing the judicial role of the Immigration Judge as opposed to the prosecutorial and investigative role. The 1996 change of title from “Special Inquiry Officer” to “Immigration Judge” is a reflection of this trend. See 1996 - Pub. L. 104–208, §371(b)(9). Due to this trend toward a judicial role and the practical impediments to conducting investigations in immigration court at a greater distance in time and location from the inspection process (from which the role of Immigration Judge evolved) it appears that the best choice for the Immigration Judge is to emphasize the judicial role and fundamental fairness, leaving the investigative and prosecutorial duties in the hands of the DHS.
Returning to Muntaser B. Abubaker Abushagif v. Garland, a split among circuit courts of appeal relating to the standard for review of MTRs to determine whether prima facie eligibility for the relief sought in a reopened proceeding is established seems apparent. Therefore, this issue might eventually be taken into consideration by the United States Supreme court to resolve the circuit court split.