Immigration – Deferential standard of review rejected

In an issue of first impression, where the government argued that the immigration judge’s decision should be upheld so long as it was based on a “facially legitimate and bona fide reason,” the court joined two circuits in rejecting this argument. That standard was developed in a limited setting of denying visas and does not translate to this context, which is to determine whether an asylum seeker reasonably fears prosecution or torture if he is returned to Guatemala.

Background

After Adan de Jesus Tomas-Ramos reentered the United States illegally, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas- Ramos failed to establish a reasonable fear of such harm. An immigration judge, or IJ, concurred with that determination.

Tomas-Ramos now contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. In addition, Tomas-Ramos argues that his rights were violated when his lawyer was denied a chance to make a closing statement.

Standard

The government argues that, instead of the usual substantial evidence standard, the court should apply a still more deferential standard and uphold the IJ’s decision so long as it was based on a “facially legitimate and bona fide reason.” The court now joins two other circuits and rejects this argument.

The “facially legitimate and bona fide reason” standard of review sought by the government was developed “in a limited and distinctive setting: challenges to government decisions to deny visas.” Those principles do not translate to this context because, while the executive has nearly unfettered discretion over visa determinations, the executive’s discretion is not unfettered here.

Reasonable fear

To establish a reasonable fear of persecution, Tomas-Ramos must show “a reasonable possibility that he [] would be persecuted on account of his [] race, religion, nationality, membership in a particular social group or political opinion” if returned to Guatemala. He credibly testified to having received death threats from a gang attempting to recruit his son, and this court has expressly held that “the threat of death qualifies as persecution.”

The asylum officer recognized that Tomas-Ramos might have been threatened because of his relationship to his son, but held that immediate family is not a qualifying “particular social group” because it “lacks social distinction.” The asylum officer held that the gang’s threats against Tomas-Ramos did not give rise to a reasonable fear of persecution based on a protected ground. That reasoning was in error.

The government argues, however, that this error does not matter, because the IJ correctly held that there was no nexus between Tomas-Ramos’s relationship to his son and the threats against him. This court cannot agree. Tomas-Ramos’s consistent testimony—which the asylum officer found credible, and the IJ never questioned—was that gang members threatened to kill him because he resisted their efforts to recruit his son, preventing him from joining the gang. This court has held that the nexus requirement is satisfied in precisely that scenario.

Relocation

The government argues that the court still may affirm the negative reasonable fear determination on an alternative basis: the IJ’s additional finding that “[Tomas-Ramos] can relocate.” The court disagrees.

Because the IJ incorrectly believed that Tomas-Ramos had not established past persecution, she never had the opportunity to assess relocation under the proper framework. In evaluating Tomas-Ramos’s testimony that he could not safely relocate because gang members would search for him wherever he moved, the IJ could not take into account what is now presumed: that Tomas-Ramos has a well-founded and reasonable fear that if he is returned to Guatemala, he again will be subjected to persecution.

In these circumstances, the court follows its ordinary rule of vacating and remanding so that the agency may make the relevant factual assessments under the proper standard and in the first instance. Tomas-Ramos’s torture claim is also remanded to the agency for further consideration.

Counsel

Given the court’s disposition of Tomas-Ramos’s underlying claims, it would be premature to resolve Tomas-Ramos’s remaining argument: that the IJ violated a statutory right to counsel by denying his counsel’s request to speak at the end of his reasonable fear review hearing.

On remand, the IJ may allow counsel to participate to the extent Tomas-Ramos contends is required. At a minimum, counsel will have the opportunity to request whatever forms of participation they believe to be required, and to object on the record if they are denied, giving the IJ an opportunity to consider those objections and sharpening the issues for review.

Petition for review granted, vacated and remanded.

Tomas-Ramos v. Garland (Lawyers Weekly No. 001-025-22, 25 pp.) (Pamela Harris, J.) Case No. 20-1201, Feb. 2, 2022. From an Order of an Immigration Judge. Michael D. Lieberman for Petitioner. Patricia E. Bruckner for Respondent. 4th Cir.