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Date: 07-17-2021
Case Style:
Jorge Valarezo-Tirado v. Attorney General United States
Case Number: 20-1705
Judge: Theodore Alexander McKee
Court: UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Plaintiff's Attorney: Jeffrey Bossert Clark, Esquire
Anthony C. Payne, Esquire
Lance J. Lolley, Esquire (Argued)
Office of Immigration Litigation
Defendant's Attorney:
Description:
Philadelphia, PA - Immigration lawyer represented defendant with a review of an Immigration Judge’s reinstatement of his prior order of removal charge.
Jorge Luis Valarezo-Tirado, an Ecuadorian citizen,
entered the United States illegally in 2017. He was
subsequently detained by DHS, and in January 2020, DHS3
reinstated a prior order of his removal.
1 However, before he
was actually removed, DHS conducted a reasonable fear
interview in front of an asylum officer because ValarezoTirado claimed a fear of persecution if he were returned to
Ecuador. That interview began on February 20, 2020. At the
start of the interview, Valarezo-Tirado was twice informed of
his right to postpone the interview for up to 48 hours to procure
an attorney.2 He was also provided with a list of pro bono and
low-cost attorneys who may be willing to represent him.
However, both times he was asked, he declined, and decided
to proceed with the interview that day without an attorney.
3
Valarezo-Tirado told the asylum officer that in 2016 he
had a dispute with a neighbor, Enrique Villa, in his hometown
of Pedro Vicente Maldonado, Ecuador. Valarezo-Tirado sold
Villa a load of lumber. When Valarezo-Tirado went to collect
payment, Villa refused to pay.4 Valarezo-Tirado then went to
the local police to file a report about Villa’s refusal, but the
police allegedly told Valarezo-Tirado not to file a police report.
According to Valarezo-Tirado, “they told me not to do
anything, that he will pay me; that I should leave it alon[e]
[and] that he will pay me.”5 Officers also told Valarezo-Tirado
that Villa was “involved in some dark business.”6 Villa was
allegedly known in the community to have ties to drug
trafficking.
7
1 DHS had previously detained Valarezo-Tirado and issued a
Form I-860 Determination of Inadmissibility and Order of
Removal on September 6, 2015. (App. 33.) DHS removed
Valarezo-Tirado to Ecuador on October 23, 2015. (App. 32.)
The events giving rise to this appeal occurred after ValarezoTirado’s removal in 2015.
2 (App. 21, 22.)
3 (App. 21, 22.)
4 (App. 26) (“I expressed myself very strongly asking him
to pay me. In addition, I threatened him that if he did not
pay me in good terms; I was going to go to the police.”)
5 App. 26.
6 Id. 7 (Id. at 23) (“I had a problem with a person that is linked
to drug trafficking. . . . Enrique Villa, I know him by this
name. He has a nickname called De Cali because he is
Colombian.”)4
Valarezo-Tirado told the asylum officer that based on
the inaction of the local police, he believed Villa “ha[d] some
kind of friendship with the police and the police would have
told [Villa] that I came to file a report against him.”8
Accordingly, Valarezo-Tirado did not file a police report.
However, as Valarezo-Tirado later told the IJ, he returned to
Villa’s house to demand his money a second time. Rather than
paying Valarezo-Tirado, Villa threatened him with a pistol: “he
told me to leave things alone or something will happen to my
family or me.”9
Fearing for his and his family’s safety, Valarezo-Tirado
fled to the United States with his family. Valarezo-Tirado told
the asylum officer that since he fled his hometown, he “heard
[Villa] was in jail one time, that he had [a] problem with the
police.”10 Valarezo-Tirado clarified that he believed that the
state or provincial police had detained Villa.
11 He told the
asylum interviewer that the state and provincial police were
separate forces than the local police who previously
discouraged him from filing a police report.12
The DHS asylum officer found that Valarezo-Tirado
was “credible,” meaning that his testimony was “consistent,
detailed, and plausible,”13 but that he did not establish a
reasonable fear of persecution or torture if removed to
Ecuador.14 As to past torture, the asylum officer concluded
“[t]he limited harm experienced by the applicant (verbal
threats of unspecified harm) does not rise to the level of severe
physical or mental pain required to constitute torture.”15 And
“[t]he incident did not cause the applicant any physical harm
and there is no indication that the applicant experienced any
prolonged mental suffering from the experience.”16
8 Id. at 26.
9 Id. at 24. 10 Id. at 25.
11 (Id. at 26.)
12 (Id. at 26) (“[T]he police in my town can be friends with
him but not the state or provincial police.”)
13 Id. at 29.
14 (Id. at 20, 29–31.)
15 Id. at 31.
16 Id.5
As to the threat of future torture, the asylum officer
found that Valarezo-Tirado “failed to provide specific and
persuasive facts that a public official such as a corrupt police
officer would specifically intend to inflict on him severe
harm.”17 The officer also concluded that Valarezo-Tirado
“failed to provide specific and persuasive evidence to establish
a reasonable possibility that a public official would consent or
acquiesce to his future harm by Mr. Villa.”18
Valarezo-Tirado appealed the DHS asylum officer’s
negative credible fear determination to an IJ. At the beginning
of the hearing before the IJ, the IJ had the following exchange
with Valarezo-Tirado about his right to counsel:
IJ: You do have the right to be represented in this
hearing by an attorney but at no expense to the
Government. You previously received a packet
that listed your rights in these proceeding[s].
You also received a list of attorneys and
organizations that might be willing to represent
you at little or no cost. Do you remember getting
that list?
Valarezo-Tirado: Yes.
IJ: Okay. You don’t have an attorney here with
you today but because these are expedited
proceedings, I can’t give you any more time to
find an attorney. All right. Sir, have you
understood everything that I’ve explained to you
today?
Valarezo-Tirado: Yes.19
The IJ then summarized Valarezo-Tirado’s prior
testimony from the credible fear interview and allowed him to
expand on why he felt he could not report Villa to the police.
Valarezo-Tirado stated that he was afraid that Villa had friends
in the police department, and therefore did not file a police
17 Id. 18 Id. 19 Id. at 6–7.6
report.20 The IJ concluded that she understood that ValarezoTirado was afraid to return, “but the problem is that in order . .
. for you to be able to seek relief in this country you have to
fear persecution on account of a protected ground.”21 She
found “[t]he situation that you are facing seems to be more of
a personal matter. Because of that, sir, I do not find that you’ve
established a reasonable possibility that you would be
persecuted on account of one of these protected grounds.”22
The IJ also stated that she “concur[red] in [DHS’] reasonable
fear determination.”23 Her written opinion stated, in its
entirety: “R not targeted on account of protected ground.
Government is willing to assist.”24
Valarezo-Tirado now petitions for review.
25
II.
Valarezo-Tirado raises the following three arguments
on appeal: (i) the IJ’s conclusion that he did not have a
reasonable fear of torture was not supported by reasonable,
20 (App. 9) (“I think that he either . . . had friends in the
police department or that the police work with him
because when I went to report him, they, the police tell
me, don’t, don’t do it, just wait for him to pay you because
he has own shady businesses.”)
21 Id. at 11.
22 Id. 23 Id. 24 Id. at 1.
25 Because Valarezo-Tirado was subject to a reinstated order
of removal, DHS had exclusive jurisdiction to consider
Valarezo-Tirado’s reasonable fear claim under 8 C.F.R. §
208.31(a) in the first instance. The IJ had jurisdiction to
review DHS’ negative reasonable fear determination under 8
C.F.R. §§ 208.31(a), (g). Where an “IJ concurs with the
asylum officer’s decision that the applicant did not establish a
reasonable fear of persecution or torture, . . . ‘[n]o appeal
shall lie from the [IJ]’s decision.’” Bonilla v. Sessions, 891
F.3d 87, 90 n.4 (3d Cir. 2018) (quoting 8 C.F.R. §
208.31(g)(1)). An IJ’s decision concurring with an asylum
officer’s negative credible fear determination is, therefore, a
final order of removal. Id. We have jurisdiction to review
final orders of removal under 8 U.S.C. § 1252. See also id.7
substantial, and probative evidence on the record as a whole;
(ii) the IJ violated his due process rights by failing to “develop
his testimony” as to his fear of torture if returned; and (iii) the
IJ violated his right to counsel.
A.
In order to obtain relief under the CAT, ValarezoTirado must show “that it is more likely than not that he would
be tortured upon return to his country”26 and that the torture
would occur “by, or at the instigation of, or with the consent or
acquiescence of, a public official . . . or other person acting in
an official capacity.”27 “Acquiescence of a public official
requires that the public official, prior to the activity
constituting torture, have awareness of such activity and
thereafter breach his or her legal responsibility to intervene to
prevent such activity.”28 It is the IJ’s responsibility in the first
instance to decide if Valarezo-Tirado has demonstrated
eligibility for CAT relief.29 We review an IJ’s findings of fact
under an “‘extraordinarily deferential standard’ [and] we
uphold the IJ’s findings if they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as
a whole.’”30
Given the IJ’s less-than-terse explanation of her denial
of CAT relief, it becomes necessary to again stress that “the
availability of judicial review . . . necessarily contemplates
something for us to review.”31 This means that an IJ (or the
BIA) must explain a decision “with such clarity as to be
26 Saravia v. Att’y Gen., 905 F.3d 729, 735 (3d Cir. 2018)
(internal citation omitted).
27 8 C.F.R. § 1208.18(a)(1).
28 Id. § 1208.18(a)(7).
29 8 U.S.C. § 1231(b)(3)(C) (The trier of fact, the IJ, “shall
determine whether the [noncitizen] has sustained the
[noncitizen’s] burden of proof.”).
30 Romero v. Att’y Gen., 972 F.3d 334, 340 (3d Cir. 2020)
(quoting Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir.
2011)). 31 Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001).8
understandable.”32 And “[a]lthough we ask, in evaluating
whether an agency determination is supported by substantial
evidence, ‘whether a reasonable fact finder could make such a
determination based upon the administrative record,’ we will
not supply the basis for its decision where appropriate reasons
are not set forth by the [IJ] itself.”33 Given the bullet point-like
checklist that purported to explain the IJ’s decision here, we
stress that, “[w]here the administrative decision fails to
consider or mention evidence that is on its face relevant and
persuasive, the proper course is to remand for further
consideration by the IJ.”34
Valarezo-Tirado alleges that the IJ’s conclusion that he
does not have a reasonable fear of torture if returned to Ecuador
is not supported by substantial evidence. We agree. The
entirety of the IJ’s written decision rejecting his claim states:
“R not targeted on account of protected ground. Government
is willing to assist.”35 With nothing more than that bare
conclusion—“[g]overnment is willing to assist”—we have no
way of determining what evidence, if any, the IJ relied upon.
“An IJ must support her factual determinations with ‘specific,
cogent’ reasons such that her conclusions ‘flow in a reasoned
way from the evidence of record.’”36 Failure to provide such
support “does not pass muster under the substantial evidence
rubric.”37
Valarezo-Tirado argues not only that there is no
evidence in the record to support the IJ’s conclusion; he claims
that the record evidence supports the opposite conclusion. He
believes this record supports the conclusion that the police
were unwilling or unable to assist. He points to his testimony
before the asylum officer and before the IJ. He testified that the
police told him not to file an official police report because Villa
32 Wang v. Att’y Gen., 423 F.3d 260, 270 (3d Cir. 2005)
(quoting SEC v. Chenery Corp., 332 U.S. 194, 241 (1947)). 33 Id. at 271 (citing Chenery Corp., 332 U.S. at 249)
(emphasis added). 34 Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). 35 App. 1.
36 Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006)
(citing Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003)). 37 Id. (citing Dia, 353 F.3d at 254).9
was into “some dark business.”38 He told the IJ: “when I went
to report [Villa], they, the police [told] me, don’t, don’t do it.”39
The government, on the other hand, points to ValarezoTirado’s testimony before the asylum officer in which he stated
that, at one point after Valarezo-Tirado fled his hometown, he
heard that the provincial police had detained Villa.40
Therein lies the problem. The IJ’s failure to provide a
citation or reference to anything in the record leaves us
guessing at the evidence she relied upon and gives us
“[nothing] to review.”41 “[W]e cannot give meaningful review
to a decision in which [an IJ] does not explain how it came to
its conclusion.”42 Valarezo-Tirado is correct when he argues
that although the government “suggests ways in which
[Valarezo-Tirado’s] testimony might have supported [the IJ’s]
conclusion,”43 the government can only guess whether the IJ
even considered the evidence of Villa’s alleged arrest by
provincial police. We fare no better. It “would be improper for
us to speculate as to whether” the IJ considered such evidence,
or how it factored into her conclusion.44 The basis for the IJ’s
decision “can and should be addressed explicitly by the [IJ]
upon remand.”45
We have previously granted a petition for review in
which the alleged basis for the BIA’s denial of relief was that
“the evidence is insufficient” and “the arguments made by the
[government] on appeal . . . are persua[sive]” because we could
not “perform meaningful review of [such an] order.”46 Here,
we have even less to work with.
We realize, of course, that the IJ and BIA have a
tremendous caseload and very crowded dockets. We have
taken pains to note that the large number of cases on IJs’ and
38 App. 9.
39 Id. 40 (See Resp’t’s Br. at 11.)
41 Abdulai, 239 F.3d at 555. 42 Awolesi v. Ashcroft, 341 F.3d 227, 229 (3d Cir. 2003). 43 Pet’r’s Reply Br. at 15–16.
44 Voci v. Gonzales, 409 F.3d 607, 617 (3d Cir. 2005). 45 Id.
46 Awolesi, 341 F.3d at 229.10
the BIA’s dockets “impose[] practical limitations on the length
of the [IJ’s and] BIA’s written opinions.”47 However, we will
not permit crowded dockets or a backlog of cases to excuse an
IJ or the BIA from providing a meaningful explanation of why
someone has been denied relief under the asylum laws or the
CAT. The most fundamental notion of due process must
include an opportunity for meaningful judicial review. We
reiterate that “judicial review necessarily requires something to
review and, if the agency provides only its result without an
explanation of the underlying fact finding and analysis, a court
is unable to provide judicial review.”48 The required review is
simply not possible when we are provided with nothing more
than the kind of one-line checklist that is relied upon here. We
cannot allow an IJ or the BIA to dispense with an adequate
explanation of a final decision merely to facilitate or
accommodate administrative expediency.
Since “the [IJ]’s failure of explanation makes it
impossible for us to review its rationale, we [will] grant
[Valarezo-Tirado’s] petition for review, vacate the [IJ’s] order,
and remand the matter to [the IJ] for further proceedings
consistent with this opinion.”49
B.
Valarezo-Tirado also argues that the IJ had a duty to
develop his testimony about government acquiescence to
torture because that troubled the IJ and was dispositive in her
denial of his claim.50 He supports this argument by citing to
our line of cases requiring IJs to provide notice to a noncitizen
before denying his or her claim for a lack of corroboration. In
Toure, for example, we stated that the IJ “has a duty to develop
[the noncitizen’s] testimony, especially regarding an issue that
she may find dispositive, and . . . must adequately explain the
reasons for [her] decisions.”51 The IJ must also “give the
[noncitizen] notice of what corroboration will be expected and
an opportunity to present an explanation if the [noncitizen]
47 Voci, 409 F.3d at 613 n.3. 48 Dia, 353 F.3d at 268 (Stapleton, J., dissenting) (citing
Chenery Corp., 332 U.S. at 196–97).
49 Abdulai, 239 F.3d at 555. 50 (Pet’r’s Br. at 11.)
51 443 F.3d at 325 (internal citation omitted).11
cannot produce such corroboration.”52 This “rule derives
principally from the fact that we cannot have meaningful
judicial review without giving the applicant notice and an
opportunity to corroborate.”53
As we have already discussed, however, the IJ did not
adequately explain the reasons for her decision. Consequently,
we cannot determine if the IJ erroneously relied on a lack of
corroborating evidence. On remand, therefore, to the extent
that the IJ concludes Valarezo-Tirado must come forth with
corroborating evidence, she must reopen the proceedings,
inform Valarezo-Tirado of the evidence that requires
corroboration, and must give Valarezo-Tirado an opportunity
to furnish such information or provide an explanation for its
absence.54
C.
Finally, Valarezo-Tirado argues that he was denied his
right to counsel and therefore requires a new hearing at which
counsel will be present. We cannot agree with that claim.
“[A]lthough the Fifth Amendment does not mandate
government-appointed counsel for [noncitizens] at removal
proceedings, it indisputably affords [a noncitizen] the right to
counsel of his or her own choice at his or her own
expense.”55 In removal proceedings, the right to counsel
imposes certain obligations on the IJ. She must “[a]dvise the
[noncitizen] of his or her right to representation, at no expense
to the government, by counsel of his or her own choice . . . and
require the [noncitizen] to state then and there whether he or
she desires representation.”56 She must also “[a]dvise the
[noncitizen] of the availability of pro bono legal services for
the immigration court location at which the hearing will take
52 Chukwu, 484 F.3d at 192. 53 Saravia, 905 F.3d at 738. 54 See id. (An IJ must provide the petitioner with “notice [of
the facts requiring corroboration and] an opportunity to
provide corroborating evidence or explain its
unavailability.”).
55 Leslie v. Att’y Gen., 611 F.3d 171, 181 (3d Cir. 2010). 56 Bonilla, 891 F.3d at 91–92 (quoting 8 C.F.R. §
1240.10(a)(1)–(2)).12
place, and ascertain that the [noncitizen] has received a list of
such pro bono legal services providers.”57 If an IJ fails to do
so, the noncitizen is entitled to a new hearing without a
showing of prejudice.58
Valarezo-Tirado argues that because there is a right to
counsel in removal proceedings, that same right should be
recognized in reviews of credible fear determinations. We have
recognized, however, that the credible fear interview process
differs from removal proceedings and, concomitantly, so do
the protections offered to noncitizens in either process.
In Bonilla, we recognized this difference and denied a
claim similar to the one Valarezo-Tirado now brings. That case
is instructive. There, petitioner Sorto Bonilla was similarly
subject to a reinstated removal order but expressed a fear of
returning to his home country.59 He appeared before the
asylum officer with counsel but was unsuccessful. He appealed
the asylum officer’s negative decision to an IJ.
60 However,
Sorto Bonilla appeared before the IJ without counsel.
61 The IJ
agreed with the asylum officer’s negative credible fear
determination and ordered Sorto Bonilla removed. Sorto
Bonilla then petitioned for review in this Court arguing that he
was denied his right to counsel.62
We recognized that the regulations governing reviews
of credible fear determinations “state that [a noncitizen] ‘may
be represented by counsel’ at the screening process’ first
step—the interview with the asylum officer”—but found that
“the regulations are silent as to whether [a noncitizen] may
have counsel present at the second step of the screening process
before the IJ.”63 We concluded that Sorto Bonilla had “not
shown that the regulations explicitly invested him with a right
to counsel at the IJ’s review hearing, and we need not reach the
question [] whether he otherwise has such a right . . . because
57 Id. at 92 (quoting 8 C.F.R. § 1240.10(a)(1)–(2)). 58 See Leslie, 611 F.3d at 180.
59 891 F.3d at 89.
60 Id. 61 Id. at 90.
62 Id. 63 Id. (quoting 8 C.F.R. § 208.31(c), (g)).13
Sorto Bonilla ‘was not denied the opportunity to obtain the
counsel of his choice.’”64 The same result obtains here.
Valarezo-Tirado cannot show that he was denied the
opportunity to obtain counsel. Valarezo-Tirado was
specifically asked if he wished to stop the proceedings to
obtain counsel at his credible fear interview. In fact, as quoted
above, the hearing officer gave him that opportunity twice and
also offered a list of pro bono and low-cost lawyers whom he
could consult if he wished to briefly postpone the hearing.65 He
declined and stated that he wanted to proceed with the
interview that day.66
His claim regarding the hearing before the IJ fares no
better. Valarezo-Tirado “was notified that the IJ may allow him
to be represented at the proceeding and instructed that his
counsel should be present if he wished to be represented,”67 but
Valarezo-Tirado appeared at the hearing without counsel. At
the beginning of the hearing, the IJ asked Valarezo-Tirado if
he had received information at his credible fear interview about
his ability to have a lawyer for the hearing before the IJ.
68 He
affirmed that he had.69 Also, as in Bonilla, “the IJ noted that
[Valarezo-Tirado] did not have counsel present, further
reflecting that the IJ was cognizant of the value of legal counsel
and did not deprive him of it.”70 Valarezo-Tirado neither
objected nor asked for a lawyer during the hearing before the
IJ. Accordingly, he has not shown that he was denied counsel
before the IJ.
III.
We realize, and “readily acknowledge that an IJ’s
position is an impossibly demanding and challenging one.”71
We have already commented on this above. Moreover, we
64 Id. (quoting Ponce-Leiva v. Ashcroft, 331 F.3d 369, 376 (3d
Cir. 2003)).
65 (See App. 21–22.)
66 (Id.)
67 Bonilla, 891 F.3d at 92. 68 (App. 6–7.)
69 (App. 7.)
70 Bonilla, 891 F.3d at 92.
71 Abulashvili v. Att’y Gen., 663 F.3d 197, 208 (3d Cir. 2011).14
recognized in 2011 that “IJs [were] confronted with an
exponential growth in their caseloads,” noting that the average
immigration judge handled over 1500 cases in a year.72 And
the volume continues to increase.
Outcome: A 2019 study found that “on average each
[immigration] judge currently has an active pending caseload
of over two thousand cases.”73 Nevertheless, we cannot allow
incredibly difficult logistics to give license to IJs to skirt their
responsibilities. This includes the obligation to inform the
petitioner of the reasons for the IJ’s decision and provide an
adequate explanation of the decision that does not require us to
parse through the testimony in search of evidence that supports
it. A two-sentence recitation on a bullet-point form will rarely,
if ever, provide sufficient reasoning for a decision. A decision,
such as the one here, that does not refer to record evidence will
never suffice. Because, here, the IJ’s decision was not
supported by substantial evidence, we will vacate the decision
and order and remand to the IJ for proceedings consistent with
this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: