Hernandez v. Holder

• Citation: 579 F.3d 864
• Decision Date: 01 September 2009
• Docket Number: No. 08-2455.,08-2455.
• Parties: Rolando HERNANDEZ, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States of America, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

579 F.3d 864

Rolando HERNANDEZ, Petitioner, v. Eric H. HOLDER, Jr.,¹ Attorney General of the United States of America, Respondent.

No. 08-2455.

United States Court of Appeals, Eighth Circuit.

Submitted: March 10, 2009.

Filed: September 1, 2009.

Benjamin R. Casper, argued, West St. Paul, MN, for petitioner.

Anthony C. Payne, argued, Jennifer P. Williams, on the brief, Washington, D.C., for respondent.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Rolando Hernandez, a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals (BIA), denying his application for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and asylum on humanitarian grounds ("humanitarian asylum"), as well as his request to administratively close or continue his case. We deny the petition in part, grant the petition in part, and remand for further proceedings.

I.

Rolando Hernandez was born in Quezaltenango, Guatemala, on August 20, 1965. Hernandez entered the United States without inspection on September 5, 1992, after fleeing Guatemala to escape from the Organization for People in Arms (ORPA), which had forced him into its service. In May 1993, the Immigration and Naturalization Service (INS)² issued an order to show cause against Hernandez, alleging that he was deportable for having entered the United States without inspection under former section 241(a)(1)(B) of the Immigration & Nationality Act (INA), 8 U.S.C. § 1231(a)(1)(B).³ Hernandez conceded deportability but applied for asylum under section 208 of the INA, 8 U.S.C. § 1158(a), and withholding of deportation pursuant to former section 243(h) of the INA.⁴ He contended that he was unable to return to Guatemala where he faced persecution by ORPA members because of his public opposition to ORPA.

In June 1994, Hernandez had an individual merits hearing before Immigration Judge Cuevas ("IJ Cuevas"). Hernandez testified through a translator. IJ Cuevas found that Hernandez credibly established that he had been forcibly recruited into ORPA by coercion and misrepresentations, that he had not supported the guerrillas, and that, as soon as he became aware of their goals, he informed the leaders of his disagreement with them and attempted to leave the group. IJ Cuevas concluded that Hernandez was entitled to asylum because: (1) his credible testimony established a well-founded fear of persecution by leaders of ORPA, who knew that he had deserted ORPA after announcing his opposition to the group, and (2) Hernandez had established that it would be more likely than not that he would be persecuted if he returned to Guatemala. IJ Cuevas then granted Hernandez's application for asylum and withholding of deportation.

The INS appealed. In October 2000, the BIA held that Hernandez was statutorily ineligible for asylum and withholding of deportation pursuant to the so-called "persecutor bar," under which any person who has "assisted or otherwise participated in" persecution of any person on account of a protected ground is ineligible for asylum and withholding of removal. See 8 U.S.C. § 1101(a)(42) (ineligible for asylum); id. § 1231(b)(3)(B)(i) (ineligible for withholding of removal). Therefore, the BIA ordered Hernandez deported as statutorily ineligible for relief from deportation. The BIA did not overturn the credibility findings of IJ Cuevas and did not reach the issue of whether, absent the persecutor bar, Hernandez was otherwise entitled to asylum.

Hernandez petitioned this court for review, asserting that the BIA applied an incorrect legal standard in determining that he had not met his burden of proving that the persecutor bar did not apply. This court agreed and vacated the BIA's order, remanding "for its full consideration of the issue of eligibility for the type of relief requested by Hernandez." Hernandez v. Reno, 258 F.3d 806, 813, 815 (8th Cir.2001).

On remand, the BIA held that Hernandez was not ineligible for asylum under the "persecutor bar." However, the BIA observed, "[T]hese events transpired 10 years ago, in 1992. It is not clear on the record whether the guerillas would still be interested in the respondent. Further, in 1996, the parties to the Guatemalan civil war signed peace accords." (App.29.) Therefore, the BIA determined that "in light of the passage of time and the changed circumstances in Guatemala, . . . the best course at this point is a remand to the Immigration Judge for a further hearing on the respondent's application for asylum." (Id.)

On remand from the BIA, Hernandez's case was assigned to Immigration Judge Dierkes ("IJ Dierkes"). IJ Dierkes presided over Hernandez's preliminary hearing on October 29, 2002. At the hearing, Hernandez objected to the substitution of IJ Dierkes and requested that IJ Cuevas's 1994 order granting Hernandez asylum be reinstated. Although he did not use the term "nunc pro tunc" at the hearing,⁵ Hernandez characterizes this as a request for a grant of asylum nunc pro tunc. IJ Dierkes denied the request.

On November 22, 2002, Hernandez filed a motion, requesting that IJ Cuevas handle the remand of his case. IJ Dierkes presided at the next preliminary hearing held on January 21, 2003, and stated that he had forwarded the motion to the Office of the Chief Immigration Judge in Washington, D.C. Following the hearing, IJ Dierkes issued an order denying the motion. The order stated:

Judge Cuevas was on detail when he heard this matter in 1994. He no longer comes to Minnesota on detail. This case was assigned to me when it was remanded from the BIA. I have discussed the Respondent's motion with Assistant Chief Immigration Judge Michael Rahill, and he has advised me that Judge Cuevas will not be coming to Minnesota for further details. Accordingly, Judge Cuevas is considered "unavailable" within the meaning of 8 CFR 240.1(b). The case will remain on my docket.

(Id. at 57.)

As an alternative to his asylum application, Hernandez filed an application for both suspension of deportation and cancellation of removal. On November 15, 2006, Hernandez filed a motion for administrative closure and, in the alternative, a continuance for purposes of repapering.⁶ The motion provides: "Respondent once again respectfully restates his position that this Court has independent authority, should it deny and/or pretermit Respondent's I-589 and Suspension applications, to postpone these proceedings for good cause while the proposed repapering rules are finalized."⁷ (App.97.) The motion references a June 26, 2006, telephone conversation between IJ Dierkes and DHS counsel.⁸ (Id. at 97-98.) The motion further states:

[W]ith respect to the asylum application, we continue to insist that this Court has ample basis for granting it, including on an equitable nunc pro tunc basis given the extraordinary circumstances of the case and the manifest injustice that denial would cause Respondent and his family. As we have observed before, Mr. Hernandez could easily have been a U.S. citizen by now but for the errors and delays caused by the government in this case. See e.g. Edwards v. INS, 393 F.3d 299 (2d Cir.2004).

(App.97.)

On January 10, 2007, IJ Dierkes conducted Hernandez's individual merits hearing. IJ Dierkes asked DHS's counsel to respond to the motion for administrative closure and, alternatively, a continuance. DHS counsel responded,

[T]he government is not willing to agree to administrative closure, that's simply an attempt to indefinitely continue the proceedings and in light of the lack of any re-papering regulations and frankly, being the same status as it has many years, the Government seeks the Court to fulfill its duty and [go] forward with the adjudication of the case.

(App.253.) IJ Dierkes rendered an oral decision at the hearing, denying Hernandez's

applications for asylum and related relief because . . . there ha[ve] been major changes in your country since you were there. . . . My ruling in your case is in no way a negative reflection on you in any way. It's just that I think the situation in Guatemala has changed since you were there. So I don't want you to think that this is a matter of I don't find you a credible person. I found your testimony to be generally credible. Sometimes these cases are overtaken by events.

(Id. at 256.) IJ Dierkes denied Hernandez's alternative motions for administrative closure and a continuance, observing that "the Court does not believe that it has authority to administratively close this case on its own, without the consent of both parties." (Id. at 6.) IJ Dierkes further stated:

[T]he Court would reiterate that it does not believe that it has authority on its own to administratively close this case for re-papering. The proposed regulation makes it clear that it is entirely within the discretion and authority of the Immigration Service to determine whether or not re-papering should take place. The Government has consistently refused to agree to administrative closure in this case, which reflects in my opinion the attitude of the Department of Homeland Security towards whether or not it should grant the discretionary relief of re-papering to this respondent. . . . [T]his Court cannot on its own go ahead and administratively close the case.

(Id. at 23-24.) IJ Dierkes did not separately address the request for a continuance which was also premised on the finalization of the repapering regulations.

With regard to whether circumstances in Guatemala had changed since Hernandez was granted asylum, IJ Dierkes stated:

[T]he Court believes that there have just been too significant changes in Guatemala to allow the Court to find that this respondent still has a well-founded fear of returning there. For these reasons, the Court will deny the respondent's application for asylum and withholding of deportation. No evidence has been offered that the government of Guatemala or those acting with the...