In Aguilar-Escoto v. Sessions, No. 16-1090 (1st Cir. Oct. 27, 2017), the U.S. Court of Appeals for the First Circuit vacated the BIA’s erroneous decision affirming an immigration judge’s denial of withholding of removal. The circuit court employed an interesting approach that lawyers and judges may wish to examine.
In Aguilar-Escoto, the Board upheld the immigration judge’s adverse credibility finding. However, the petitioner also provided significant documentary evidence. Although the IJ had considered and disposed of such evidence, the Board did not address it. On appeal, the First Circuit adopted the view of the Eleventh Circuit in holding that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence…” The court concluded that remand was required “irrespective of the supportability of the adverse credibility finding” in order for the Board to consider the previously neglected evidence. However, the court reached such conclusion in an unusual way.
Although the IJ had correctly noted that the application was for withholding of removal, the Board carelessly stated that the petitioner “failed to meet her burden of proof for asylum.” As those of us who practice in this field all know, asylum and withholding have different burdens of proof. As the Board is fond of saying in its decisions, if the respondent did not meet her burden of proof for asylum, “it follows that she has not satisfied the more stringent burden that applies to withholding of removal.” The Board used similar boilerplate in this case.
However, the circuit court here stated that in one way, the burden for asylum “may be more exacting.” The court noted that asylum has a subjective and objective component: an applicant must establish both a genuine subjective fear, and then must show that such fear is objectively reasonable. Although withholding of removal requires a much greater probability of harm (more than 50 percent, as opposed to the 10 percent needed for asylum), the court observed that the focus is entirely on the objective; i.e. there is no inquiry into the applicant’s own subjective fear. In other words, asylum applicants must first convince the adjudicator that they are genuinely afraid of being persecuted, and must then provide enough objective evidence to show that such fear is reasonable. Withholding applicants must show through objective evidence that there is a greater than 50 percent chance that they will suffer persecution; their own fear is irrelevant to the inquiry. The reason for this distinction is that asylum requires one to meet the statutory definition of “refugee,” which involves a “well-founded fear of persecution.” Withholding of removal does not incorporate the refugee definition, but rather prohibits removal to a country where the Attorney General decides that the individual’s freedom would be threatened on account of a protected ground. Thus, in asylum, the adjudicator is reviewing the reasonableness of the applicant’s own fear; in withholding of removal, the A.G. is the one determining the threat to safety.
The First Circuit explains the importance of this distinction: an adverse credibility finding impacts the genuineness of the applicant’s subjective fear. However, it does not impact the independent objective evidence regarding the likelihood of the applicant suffering harm if returned to her country. The court noted that in mistakenly thinking it was affirming a denial of asylum based on adverse credibility, the Board then added common boilerplate language that, since the applicant did not meet the lower burden required for asylum, it follows that she did not meet withholding’s higher burden. But the court said that logic only applies where the subjective fear element is satisfied, but the claim was denied due to a failure to provide sufficient objective evidence to support such fear. Here, as the adverse credibility finding precluded the petitioner from establishing a genuine subjective fear of persecution, the withholding of removal application required a separate inquiry as to whether the independent objective evidence was sufficient to establish the likelihood of persecution. The record was therefore remanded for such inquiry.
To illustrate by way of example, let’s say an applicant applies for asylum and withholding based on her Christian religion. The applicant claims to be afraid to return to her country because she received multiple threatening phone calls and letters referencing her religion. The applicant also submits news articles and human rights reports detailing violent attacks on Christians in her hometown. Now, let’s assume that the immigration judge believes that the respondent is in fact a practicing Christian. However, the IJ concludes that the claimed threats lack credibility. Asylum requires the applicant to first demonstrate a genuine subjective fear of persecution. The respondent testified that her fear was based on the threats. Under the First Circuit’s holding, if the IJ finds that the threats didn’t actually occur, the IJ can determine that the respondent did not establish a genuine fear of persecution.
However, what if the reports and articles believably establish that Christians run a high risk of being persecuted on account of their religion? The IJ did believe that the respondent was in fact a practicing Christian. According to the First Circuit, the IJ therefore just can’t dispose of the withholding claim by stating that the respondent didn’t meet the lower burden of proof for asylum, so therefore couldn’t have met the higher burden for withholding. The IJ would instead have to apply a separate analysis as to whether the articles and reports independently establish that it is more likely than not the respondent would be persecuted on account of her religion if removed to her country. If so, the respondent is entitled to withholding of removal (which is a non-discretionary form of relief).
Both immigration practitioners and government adjudicators should take note, and approach their arguments and drafting of decisions accordingly. As an aside, the nuances and degree of analysis that the circuit court’s decision requires of adjudicators underscores the danger of the Department of Justice’s stated intent to impose case completion quotas on immigration judges. As my good friend and fellow blogger Paul Schmidt recently wrote on the topic (and as this case clearly illustrates), immigration judges are not piece workers, and fair court decisions are not widgets (well said, Paul!).
Copyright 2017 Jeffrey S. Chase. All rights reserved.