Bartolome v. Sessions

• Decision Date: 14 September 2018
• Docket Number: No. 15-71666, No. 15-72671,15-71666
• Citation: 904 F.3d 803
• Parties: Tomas BARTOLOME, aka T.B.H., Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent. Thomas Bartolimae-Hernandez, Petitioner, v. Jefferson B. Sessions III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

904 F.3d 803

Tomas BARTOLOME, aka T.B.H., Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

Thomas Bartolimae-Hernandez, Petitioner,

v.Jefferson B. Sessions III, Attorney General, Respondent.

No. 15-71666

No. 15-72671

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2018, San Francisco, California

Filed September 14, 2018

Siovhan Sheridan (argued), Sheridan Law Office P.C., Tucson, Arizona, for Petitioner.

Nancy K. Canter (argued), Trial Attorney; Keith I. McManus and Cindy S. Ferrier, Assistant Directors; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Immigration Judge’s Decision, Agency No. AXXX-XX6-493

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye,^* District Judge.

N.R. SMITH, Circuit Judge:

Aliens subject to reinstated orders of removal are placed in reasonable fear screening proceedings, if they express fear of persecution or torture in their country of removal. 8 C.F.R. §§ 241.8(e), 1241.8(e). This process consists of an interview before a United States Citizenship and Immigration Services ("USCIS") asylum officer to make a preliminary determination of reasonable fear. If the asylum officer makes a negative reasonable fear determination, the alien may request a de novo review hearing by an immigration judge ("IJ") of the asylum officer’s determination. These reasonable fear proceedings, as outlined in 8 C.F.R. §§ 208.31, 1208.31, are intended to provide a fair determination of whether an alien has a reasonable fear of persecution or torture, which fear would require the alien to be referred to an IJ to review eligibility for withholding of removal or relief under the Convention Against Torture ("CAT"). However, these reasonable fear proceedings are to be streamlined, not intended to have full evidentiary hearings, because the alien continues to be subject to the expedited removal process used for previously removed aliens with reinstated orders of removal. Thus, an IJ’s failure specifically to address all of the evidence and claims before him or her (during the reasonable fear review proceedings) does not violate the alien’s due process rights. Nevertheless, an IJ’s failure to recognize that he or she has sua sponte authority to reopen any matter in which he or she made a decision (including reasonable fear review hearings) is an abuse of discretion.

ADMINISTRATIVE FRAMEWORK

Congress has authorized the expedited removal of aliens if "an alien has reentered the United States illegally after having been removed ... under an order of removal." 8 U.S.C. § 1231(a)(5). Congress further directed that the alien’s prior removal order "is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry." Id.

Despite this directive, Congress has also recognized that it must make exceptions for aliens who demonstrate a clear probability of persecution or torture.¹ See 8 U.S.C. § 1231(b)(3). Thus, even an alien subject to expedited removal may still request withholding of removal or relief under CAT. 8 C.F.R. §§ 241.8(e), 1241.8(e), 208.31(a), 1208.31(a). Accordingly, the Attorney General established regulations to screen for aliens who may fall into this category.² See 8 C.F.R. §§ 208.31, 1208.31.

The regulations provide that, if a previously removed alien expresses a fear of persecution or torture, the Department of Homeland Security ("DHS") shall refer the alien to "an asylum officer for a reasonable fear determination. In the absence of exceptional circumstances, this determination will be conducted within 10 days of the referral." Id. §§ 208.31(b), 1208.31(b). The statute outlines that an alien has "a reasonable fear of persecution or torture if the alien establishes a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal." Id. §§ 208.31(c), 1208.31(c).

To make the reasonable fear determination, "[t]he asylum officer shall conduct the interview in a non-adversarial manner, separate and apart from the general public." Id. After the interview, the asylum officer is required to "create a written record of his or her determination, including a summary of the material facts as stated by the applicant, any additional facts relied on by the officers, and the officer’s determination of whether, in light of such facts, the alien has established a reasonable fear of persecution or torture."Id.

During the reasonable fear determination, the asylum officer elicits "all information relating both to fear of persecution and fear of torture." Reasonable Fear of Persecution & Torture Determinations, INS AOBT 8/6/2008 *21, 2008 WL 7226112 (Aug. 6, 2008).³ Based on this evidence, the asylum officer determines whether there is a "reasonable possibility" that the alien established he or she would be persecuted on account of a protected ground or tortured in his or her country of removal.⁴ Id. Thus, the asylum officer must assess whether the alien "demonstrat[ed] that he has a ‘subjectively genuine and objectively reasonable’ fear of future persecution." Bringas-Rodriguez v. Sessions , 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (citation omitted). "The subjective component is satisfied by credible testimony that the applicant genuinely fears persecution." Zhao v. Mukasey , 540 F.3d 1027, 1029 (9th Cir. 2008). "The objective prong is satisfied either by ... a showing of past persecution, or by a showing of a good reason to fear future persecution based on credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution." Id. (internal quotation marks and citation omitted). "Even a ten percent chance of future persecution may establish a well-founded fear." Id. at 1029–30.

If an asylum officer concludes that the alien has a reasonable fear, the officer refers the alien to an IJ for a full consideration of a withholding of removal claim. Id . §§ 208.31(e), 1208.31(e). However, if the asylum officer concludes that the alien does not have a reasonable fear, the asylum officer "shall inquire whether the alien wishes to have an [IJ] review the negative decision." Id. §§ 208.31(f), 1208.31(f). If an alien requests review by an IJ, the IJ shall be provided with "[t]he record of determination, ... the asylum officer’s notes, the summary of the material facts, and other materials upon which the determination was based." Id. §§ 208.31(g), 1208.31(g). The IJ should conduct the review within ten days of the alien’s request. Id.

This "reasonable fear review hearing" is conducted by an IJ. It "is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings." Immigration Court Practice Manual, ch. 7.4(e)(iv)(E).⁵ "[I]t is a [de novo] review of the DHS asylum officer’s decision." Id .; OPPM No. 99-5 ¶ IV(D) (requiring de novo review). "Either party may introduce oral or written statements, and the court provides an interpreter if necessary." Immigration Court Practice Manual, ch. 7.4(e)(iv)(E). After this review hearing, the IJ may concur with the asylum officer and return the case to DHS for removal. 8 C.F.R. §§ 208.31(g)(1), 1208.31(g)(1). In that case, the alien has no right to appeal the IJ’s decision to the Board of Immigration Appeals. Id. Nonetheless, the alien may appeal the IJ’s negative fear determination to our court under 8 U.S.C. § 1252(a)(1), (5). See Ayala v. Sessions , 855 F.3d 1012, 1018 (9th Cir. 2017). If the IJ disagrees with the asylum officer, the alien is eligible to apply for withholding of removal and relief under CAT. Id. §§ 208.31(g)(2), 1208.31(g)(2).

PROCEDURAL HISTORY & FACTS

Tomas Bartolome is a native and citizen of Guatemala. He first entered the United States in 1994 illegally and without any governmental permission. He applied for asylum, which was denied. He was thereafter deported from the United States in February 2008. In June 2008, Bartolome attempted to reenter the United States. However, DHS found him to be inadmissible and ordered his expedited removal. After removal, he remained in Guatemala until 2015.

In February 2015, Bartolome illegally reentered the United States. In March 2015, DHS served Bartolome a Notice of Intent/Decision to Reinstate Prior Order. In response, Bartolome expressed a fear of persecution or torture if returned to Guatemala. Based on his asserted fear, he was referred to an asylum officer for a reasonable fear interview.

On May 6, 2015, Bartolome and his attorney appeared before the asylum officer, and the asylum officer interviewed Bartolome. Bartolome explained to the officer that he feared returning to Guatemala, because gangs had extorted him. He claimed that gang members thought he had money, because his family resided in the United States.⁶ Bartolome also feared that he could be subject to persecution because his brother was involved in politics in Guatemala.

After the interview, the asylum officer issued a negative reasonable fear determination. Although the asylum officer found Bartolome credible, he concluded that Bartolome had failed to establish a reasonable possibility that he would be persecuted or subjected to torture upon his return. Bartolome then requested that an IJ review the asylum officer’s negative reasonable fear determination. On May 14, 2015, the matter was referred to an IJ. The initial reasonable fear review hearing was scheduled for May 19, 2015. However, it was continued until May 22, 2015, to allow Bartolome’s attorney time to prepare and to secure an appropriate interpreter. Prior to the hearing, Bartolome submitted additional documents in support of his claim that he...