Villegas-Castro v. Garland

• Decision Date: 02 December 2021
• Docket Number: No. 20-9593,20-9593
• Citation: 19 F.4th 1241
• Parties: Gabriel VILLEGAS-CASTRO, a/k/a Gabreil Villegas, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. Professor Juan E. Méndez; Disability Rights International, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

19 F.4th 1241

Gabriel VILLEGAS-CASTRO, a/k/a Gabreil Villegas, Petitioner,

v. Merrick B. GARLAND, United States Attorney General, Respondent.Professor Juan E. Méndez; Disability Rights International, Amici Curiae.

No. 20-9593

United States Court of Appeals, Tenth Circuit.

FILED December 2, 2021

Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner.

Rachel Browning, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C. (Brian Boynton, Acting Assistant Attorney General, and Keith I. McManus, Assistant Director, U.S. Department of Justice, with her on the brief), on behalf of the Respondent.

Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner.

Before BACHARACH, KELLY, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Gabriel Villegas-Castro is a Mexican citizen who entered the United States without being admitted or paroled. The government sought removal, and Mr. Villegas-Castro requested asylum, cancellation of removal, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals ordered removal and rejected all of Mr. Villegas-Castro's requests. We address three issues.

The scope of the immigration judge's authority when the Board orders a remand. The first issue involves the immigration judge's authority when the Board of Immigration Appeals orders a remand. Mr. Villegas-Castro initially lost his bid for asylum but obtained cancellation of removal. The Board remanded to the immigration judge to reconsider the cancellation of removal. On remand, Mr. Villegas-Castro filed a new asylum application and obtained relief. The government appealed and the Board reversed, concluding that the second application was not new and Mr. Villegas-Castro hadn't shown a change in circumstances. We conclude that

• the immigration judge properly considered the second application for asylum and

• the Board's reasoning doesn't support its denial of asylum.

The Board's failure to apply the clear-error standard to the immigration judge's factual findings. The second issue involves the Board's standard when reviewing an immigration judge's findings on credibility.

Under federal law, a noncitizen loses eligibility for asylum and withholding of removal when convicted of a particularly serious crime. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B),(ii) ; 8 C.F.R. § 1208.16(d)(2). Invoking the bar for persons convicted of a particularly serious crime, the government argued that Mr. Villegas-Castro had lost eligibility when he was convicted of sexual battery. To resolve this argument, the immigration judge

• considered the underlying facts and the credibility of Mr. Villegas-Castro's account and

• found that the crime was not particularly serious.

The Board had to review this finding under the clear-error standard. But the Board jettisoned this standard, relying on its own disagreement with the immigration judge's findings on credibility. We conclude that the Board erred in failing to apply the clear-error standard.

The immigration judge's discretion to reconsider eligibility for withholding of removal and deferral of removal under the Convention Against Torture. The third issue involves Mr. Villegas-Castro's applications for withholding of removal and deferral of removal under the Convention Against Torture. The immigration judge abated consideration of these applications. But the Board sua sponte rejected the applications, concluding that Mr. Villegas-Castro couldn't obtain relief because the immigration judge had earlier deemed Mr. Villegas-Castro ineligible for withholding of removal under federal law and the Convention Against Torture. But the immigration judge had discretion to revisit these conclusions. Until the immigration judge entered a final decision on removal, the Board had no basis to sua sponte deny withholding of removal or deferral of removal under the Convention Against Torture.

1. Standard of Review

We review the Board's decision rather than the immigration judge's. See Sidabutar v. Gonzales , 503 F.3d 1116, 1123 (10th Cir. 2007). In reviewing this decision, we apply the de novo standard to the Board's legal determinations. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004). These legal determinations include the Board's application of its own precedents and the standard of review. See Kabba v. Mukasey , 530 F.3d 1239, 1245 (10th Cir. 2008) ; Galeano-Romero v. Barr , 968 F.3d 1176, 1184 (10th Cir. 2020).

2. The Board erroneously required a material change in circumstances after treating the new asylum application as clarification of the earlier application.

Mr. Villegas-Castro filed two applications for asylum. This petition for judicial review stems from the second application.

The immigration judge denied the first application but granted cancellation of removal. The Board overturned the grant of cancellation of removal and remanded to the immigration judge. On remand Mr. Villegas-Castro obtained permission to apply a second time for asylum, and the immigration judge granted the second application. The Board overturned this grant of asylum, reasoning that

• the second application was simply a clarification of the first one and

• the immigration judge couldn't revisit the first application.

Mr. Villegas-Castro challenges this reasoning.

A. We have jurisdiction to review the legal question of Mr. Villegas-Castro's eligibility for asylum.

The government challenges our jurisdiction, arguing that the Board made only a discretionary determination of Mr. Villegas-Castro's eligibility for asylum. We disagree.

The Board has discretion when considering the sufficiency of a change in circumstances. So that determination would ordinarily fall outside our jurisdiction. 8 U.S.C. § 1158(a)(3).

But we do have jurisdiction over questions of law. 8 U.S.C. § 1252(a)(2)(D). Given this jurisdiction, we can review legal questions arising from the Board's determination of ineligibility for asylum. See Diallo v. Gonzales , 447 F.3d 1274, 1281 (10th Cir. 2006).

Mr. Villegas-Castro argues that the Board's reasoning would not render Mr. Villegas-Castro ineligible for asylum. This argument addresses

• the correctness of the Board's application of its precedent, see In re Patel , 16 I. & N. Dec. 600 (BIA 1978), and

• the applicability of statutory restrictions on successive applications for asylum, see 8 U.S.C. §§ 1158(a)(2)(C)–(D).

These inquiries involve legal questions. See Galeano-Romero v. Barr , 968 F.3d 1176, 1184 (10th Cir. 2020) (concluding that jurisdiction existed over the legal question of whether the Board had departed from its precedent); Guerrero-Lasprilla v. Barr , ––– U.S. ––––, 140 S. Ct. 1062, 1068–70, 206 L.Ed.2d 271 (2020) (concluding that jurisdiction existed to consider the application of a legal standard to established facts).

B. Under the Board's reasoning, Mr. Villegas-Castro is eligible for asylum.

The Board reasoned that Mr. Villegas-Castro was just amending his original asylum application, not filing a second application. This reasoning wouldn't prevent the immigration judge from granting asylum.

Generally, a noncitizen can file only one asylum application. 8 U.S.C. § 1158(a)(2)(C). If that application is denied, the noncitizen can file a new asylum application only upon a material change in circumstances. 8 U.S.C. § 1158(a)(2)(D).

The immigration judge treated the second asylum application as a new application and found a material change in circumstances. But the Board treated the second asylum application as just a clarification of the first application. This treatment relieved Mr. Villegas-Castro of the restrictions on a second asylum application. So if the Board were right—treating the second asylum application as a clarification of the first one—Mr. Villegas-Castro would not have needed to show a material change in circumstances. The Board's reasoning thus prevented rejection of the second asylum application on the ground that it was successive.

C. Under the Board's precedents, the immigration judge had discretion to reconsider Mr. Villegas-Castro's amended application for asylum.

The government argues that Mr. Villegas-Castro couldn't amend the first application because his earlier administrative appeal hadn't challenged the immigration judge's denial of asylum. We reject this argument because the Board had earlier remanded the proceedings to the immigration judge.

When remanding, the Board "divests itself of jurisdiction of that case;" and the remand is effective "for consideration of any and all matters" that the immigration judge deems appropriate. In re Patel , 16 I. & N. Dec. 600, 601 (BIA 1978). The Board may retain jurisdiction or limit the remand to a particular purpose, but must do so expressly. Id. ; see In re M-D- , 24 I. & N. Dec. 138, 141 (BIA 2007) ("[W]e have historically treated a remand as effective for consideration of all matters unless it is specifically limited to a stated purpose.").

The Board here stated that "[t]he record [was] remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision." R. vol. 4, at 1221. Because the Board did not limit what the immigration judge could decide, the remand was general.

Six circuits have stated in published opinions that when the Board doesn't expressly retain jurisdiction or limit the scope of its remand, the immigration judge can consider new issues. See Cano-Saldarriaga v. Holder , 729 F.3d 25, 28 (1st Cir. 2013) (concluding that the immigration judge could consider new applications following a Board's remand for entry of a removal order and...