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Top of the Ninth: Jun 29, 2018

Top of the Ninth: Jun 29, 2018

A Weekly Analysis of Board of Immigration Appeals and Ninth Circuit Immigration Decisions

When the BIA Remands a Case to the IJ it Must be Very Clear About the IJ’s Scope of Review for the BIA Retain its Own Jurisdiction

The Ninth Circuit held that for the Board of Immigration Appeals (BIA) to retain jurisdiction when it remands a case to the Immigration Court, the BIA must 1) expressly retain jurisdiction; and 2) qualify or limit the scope of the remand. If the BIA fails to limit the scope of the review, the Immigration Judge (IJ) has jurisdiction to reconsider the entire case. It’s a rather dry and complicated opinion but, it is very important for those cases that are remanded from the BIA – so bear with me.

In 2002, Mr. Bermudez-Ariza fled to the United States from Columbia because he was being persecuted by the Fuerzas Armadas Revolucionarias de Columbia (FARC) on account of his political opinion. The procedural history here is a little complicated. This case has been pending for fifteen years. In 2003, Mr. Bermudez-Ariza applied for asylum in Immigration Court and the Immigration Judge (IJ) found that he was not credible and denied relief. In 2004, the BIA affirmed the IJ’s decision and Mr. Bermudez-Ariza filed a Petition for Review (PFR) with the Ninth Circuit. While the PFR was pending, Mr. Bermudez-Ariza filed a Motion to Reopen (MTR) with the BIA alleging Ineffective Assistance of Counsel. The BIA denied the MTR, and Mr. Bermudez-Ariza filed a second PFR for the MTR issue. Are you with me? The Ninth Circuit consolidated the two PFRs but before they were fully briefed, the Government moved to remand the case to the BIA to reconsider Mr. Bermudez-Ariza’s application for protection under the Convention Against Torture (CAT claim), in light of intervening Ninth Circuit precedent.

Here is what is important, the Government in its motion for remand stipulated that if the case was remanded Mr. Bermudez-Ariza would be able to reassert all issues in a subsequent PFR. When the Office of Immigration Litigation (OIL) calls and agrees to remand a case, it can be hard to remember that we need to protect our clients’ interests completely. Those are heady times. Fortunately, the attorney in this case insisted that Mr. Bermudez-Ariza be able to reapply for asylum once the case was remanded.

Back to the procedure. The Ninth Circuit granted the Government’s motion and remanded the case to the BIA for consideration of petitioner’s Convention Against Torture claim. The BIA, in turn, remanded the case to the IJ. ""The record of proceedings is remanded for further consideration of the respondent’s claim under the Convention Against Torture." The order did not, however, mention anything about retaining jurisdiction." Bermudez-Ariza v. Sessions, No. 15-72572 slip op. at 5 (9th Cir. June 25, 2018). That sentence is critical in understanding this case and the scope of remands in general.

In 2010, the IJ reversed his previous adverse credibility finding and granted Mr. Bermudez-Ariza asylum. The Government appealed and in 2012, the BIA vacated the grant of asylum in a single-member unpublished decision holding that the IJ exceeded the scope of his jurisdiction on remand. The BIA remanded the case to the IJ and ordered him to adjudicate only the CAT claim. In 2013, the IJ denied the CAT claim and in 2015, the BIA affirmed.

The case went back up to the Ninth Circuit and the Ninth Circuit reversed holding that the BIA did not retain jurisdiction limiting the remand only to the issue of Mr. Bermudez-Ariza’s application for CAT relief. The Ninth Circuit held that in order for the BIA to retain jurisdiction when remanding the case to an IJ, the BIA under its own case law must do two things: 1) expressly retain jurisdiction; and, 2) qualify or limit the scope of remand. Matter of Patel, 16 I.&N. Dec. 600, 601 (BIA 1978). Here the BIA’s remand order did not limit or qualify the IJ’s ability to consider new evidence or motions. It simply directed the IJ to conduct further proceedings ‘consistent with’ the BIA’s opinion. The Ninth Circuit held that because the BIA did not expressly retain jurisdiction when it remanded the case to the IJ the scope of its remand was general. The Ninth Circuit remanded the case to the BIA to address the IJ’s grant of asylum on the merits. The attorney in this case, Cawood Bebout, deserves an award for perseverance and good lawyering.

Bermudez-Ariza v. Sessions, No. 15-72572, (9th Cir. June 25, 2018)

Board of Immigration Appeals

There is a Limited Duress Exception to the Persecutor Bar – a Very Limited Exception

The BIA recognized a limited duress exception to the persecutor bar. This case went up to the Supreme Court and went back to the BIA. Mr. Negusie is a national and a citizen of both Ethiopia and Eritrea. (See the problem?). He arrived in the United States in 2004 as a stowaway. At a credible fear interview, he testified that he had been forcibly conscripted in to the Eritrean military. As a result of his refusal to fight against fellow Ethiopians, he was incarcerated for two years, subjected to forced labor, beaten, and exposed to the hot sun. Then, he was forced to serve as a uniformed and armed guard at an Eritrean military prison camp. His duties included guarding prisoners to make sure they did not escape. Mr. Negusie managed to escape from the prison camp and fled to the United States. Mr. Negusie was arrested, passed a credible fear interview, and was placed into removal proceedings. In 2005, the IJ determined that the persecutor bar applied to Mr. Negusie because he guarded prisoners who were tortured and left to die. The IJ was granted his request for protection under the Convention Against Torture (CAT). Both sides appealed. The case went up to the Supreme Court and the Supreme Court reversed and remanded. The Court held that the persecutor bar’s silence with regard to a duress exception is not conclusive. The BIA created a very limited duress exception to the persecutor bar but found that Mr. Negusie did not fall within the bar.

The BIA created a five-part test to determine if the noncitizen falls within the duress exception. The noncitizen must establish by a preponderance of the evidence.

  1. The noncitizen acted under an imminent threat of death or serious bodily injury to himself or others. Death or serious bodily injury has a proportionality requirement and the noncitizen must show that the threatened harm to himself or others was greater than or equal to the harm the noncitizen was forced to inflict. The BIA gave examples of what it considers to be “great bodily injury” including being shot in the leg, or being hit in the head with a baseball bat.
  2. The noncitizen reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting.
  3. The noncitizen had no reasonable opportunity to escape or otherwise frustrate the threat.
  4. The noncitizen did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting. And,
  5. The noncitizen knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

    This determination requires a lot burden shifting. First, the noncitizen must establish eligibility for asylum. Then DHS has to show that the noncitizen assisted or otherwise participated in the persecution of others. Once DHS meets its burden, then the burden shifts to the noncitizen to show by a preponderance of the evidence that the persecutor bar does not apply to the noncitizen because either he did not engage in persecution or because he acted under duress. The BIA found that Mr. Negusie did not fall under the duress exception and remanded to the IJ so DHS could complete its security investigations to enable Mr. Negusie to get protection under the Convention Against Torture. This is a concurring/dissenting opinion in this case. Judge Malphrus concurred in the result, but argued that there is not a duress exception to the persecutor bar. It is a very long and complicated opinion with a lot of cites to international law. If you want to geek out completely, this is the case for you!

    Matter of Negusie, 27 I.&N. Dec. 347 (BIA 2018).

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