Tomas-Ramos v. Garland

• Decision Date: 02 February 2022
• Docket Number: No. 20-1201,20-1201
• Parties: Adan De Jesus TOMAS-RAMOS, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

24 F.4th 973

Adan De Jesus TOMAS-RAMOS, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1201

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2021

Decided: February 2, 2022

ARGUED: Michael D. Lieberman, KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioner. Patricia E. Bruckner, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Simon Y. Sandoval-Moshenberg, Stacy M. Kim, LEGAL AID JUSTICE CENTER, Falls Church, Virginia; Paul F. Brinkman, Michael A. Francus, KIRKLAND & ELLIS LLP, Washington, D.C., for Petitioner. Ethan P. Davis, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, and HARRIS and RUSHING, Circuit Judges.

Petition for review granted; vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Rushing joined.

PAMELA HARRIS, Circuit Judge:

After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, 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, and so was not entitled to relief from his reinstated removal order. An Immigration Judge ("IJ") concurred with that determination.

Tomas-Ramos now petitions for review of the IJ's order on two grounds. He first contends that the IJ's finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ's decision was that there was no "nexus" between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency's decision, and remand for further proceedings.

In addition, Tomas-Ramos argues that noncitizens subject to reinstated removal orders have a right to counsel at reasonable fear review hearings, and that although he was represented by counsel before the IJ, his rights were violated when his lawyer was denied a chance to make a closing statement. Given our disposition of the underlying claims, we think it premature to resolve that issue. At a new hearing on remand, the IJ may well permit counsel to participate to the extent Tomas-Ramos contends is required, making it unnecessary for us to rule on the question.

I.

Because Tomas-Ramos reentered the United States without authorization after a prior removal, his case is subject to the distinct statutory and regulatory regime governing reinstated removal orders. We begin by describing that background law, and then turn to the facts of this case.

A.

Congress has established a streamlined process for removal of noncitizens who return illegally to this country after a previous removal order has been entered against them. In such cases, the prior adjudication of removal remains final and conclusive: The "prior order of removal is reinstated from its original date," and is "not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5). Nor may the noncitizen pursue discretionary relief, like asylum. Fernandez-Vargas v. Gonzales , 548 U.S. 30, 34–35 & n.4, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Implementing regulations track the statute, providing that a noncitizen who unlawfully reenters after being ordered removed "shall be removed from the United States by reinstating the prior order," without any right to a hearing before an IJ. 8 C.F.R. § 241.8(a). So in the ordinary case, a noncitizen facing a reinstated removal order is removed from the country without further legal proceedings.

But there is an exception to that rule. Congress also has provided that a noncitizen may not be removed to a country where he would be persecuted – that is, his "life or freedom ... threatened" based on a protected ground. 8 U.S.C. § 1231(b)(3)(A). Nor, consistent with our country's obligations under the Convention Against Torture ("CAT"), may a noncitizen be removed to a country where he would be subject to torture. See id. § 1231 note (United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture); see also 8 C.F.R. § 208.16(c) (implementing regulations). Thus, although a noncitizen may not otherwise challenge a reinstated removal order, he still may pursue two forms of relief to prevent removal to a particular country: withholding of removal under § 1231(b)(3)(A) and protection under the CAT. See Johnson v. Guzman Chavez , ––– U.S. ––––, 141 S. Ct. 2271, 2282, 210 L.Ed.2d 656 (2021) ; 8 C.F.R. § 241.8(e). And if he can establish a "clear probability" that he would be persecuted or that he would "more likely than not" be tortured, then relief is mandatory and the government must withhold removal to the country in question. See Salgado-Sosa v. Sessions , 882 F.3d 451, 456 (4th Cir. 2018).

The relevant agencies have established a screening mechanism intended to satisfy these statutory directives "without unduly disrupting the streamlined removal process." Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8479 (Feb. 19, 1999).¹ When a noncitizen subject to a reinstated removal order expresses fear of returning to a country of removal, he will first be interviewed by an asylum officer to determine whether he has a "reasonable fear" of persecution or torture. 8 C.F.R. § 208.31(a) – (b). At that non-adversarial screening interview, generally held within ten days of referral, the noncitizen may present evidence, and has a right to counsel (at no expense to the government) who may present a closing statement. Id. § 208.31(c). The noncitizen "shall be determined to have a reasonable fear" if he establishes "a reasonable possibility" that he would be persecuted on account of a protected ground, or a "reasonable possibility" that he would be tortured in the country of removal. Id. If the asylum officer concludes that the noncitizen has demonstrated reasonable fear, the case is referred to an IJ for full consideration of whether the noncitizen is entitled to withholding or CAT protection. Id. § 208.31(e).

If the asylum officer determines that the noncitizen has not established reasonable fear – as was the case for Tomas-Ramos – the noncitizen is entitled to review by an IJ. Id. § 208.31(g). Unlike the provisions governing initial reasonable fear interviews, the regulations do not describe how IJs shall conduct these review proceedings; in particular, they do not address a right to counsel or to present evidence. Instead, they provide simply that the asylum officer's "record of determination" will be forwarded to the IJ and that the IJ will conduct a review, barring exceptional circumstances, within ten days of referral. Id. If the IJ concurs with the asylum officer's negative reasonable fear determination, as occurred here, the case is set for removal; if the IJ instead finds a reasonable fear, the noncitizen proceeds to full consideration of claims for withholding or CAT protection. See id. § 208.31(g)(1)–(2).

Agency manuals provide additional details regarding the reasonable fear determination process, and neither party challenges the validity of those manuals. First, the practice manual for parties in immigration court clarifies that a "reasonable fear review hearing" before an IJ "is not as comprehensive or in-depth as a withholding of removal hearing," but is instead "a review of the [ ] asylum officer's decision." Immigration Court Practice Manual § 7.4(e)(iv)(E) (Nov. 16, 2020). Accordingly, parties may present evidence only at the discretion of the IJ, id. , and – especially relevant here – whether the noncitizen may be represented by counsel also is a matter of IJ discretion, id. § 7.4(e)(iv)(C).

Second, the training manual for asylum officers clarifies what showing is required to establish a "reasonable possibility" of persecution or torture – the benchmark for "reasonable fear" set by 8 C.F.R. § 208.31(c). See U.S. Citizenship & Immigr. Servs., Asylum Division Officer Training Course: Reasonable Fear of Persecution and Torture Determinations 10–11, 17 (Feb. 13, 2017) ("Training Manual"). The "reasonable possibility" standard is the "same standard asylum officers use in evaluating whether an applicant is eligible for asylum." Id. at 17; see also 8 C.F.R. § 208.13 (governing asylum eligibility); 64 Fed. Reg. at 8485 (describing standard).² In this context, however, "reasonable possibility" is used not to assess a noncitizen's ultimate eligibility for asylum, but rather as a screening mechanism to determine whether a noncitizen may be able to establish an entitlement to withholding or CAT protection. See Training Manual at 17; 64 Fed. Reg. at 8485 (explaining standard).

Importantly for this case, to establish a "reasonable possibility" of persecution in a reasonable fear proceeding, the evidence must show that a noncitizen cannot avoid the feared harm by relocating within the country of removal, or that expecting him to relocate would be unreasonable. Training Manual at 19. That is a familiar inquiry; the same showing is required for asylum eligibility, see 8 C.F.R. § 208.13(b)(2)(ii), and for withholding eligibility in full withholding proceedings, see id. § 208.16(b)(2). But just as in those contexts, if a...