The Ninth Circuit is Fighting Back! And Motions to Reopen In Absentia Hearings Just Got a Little Easier!

This week the Ninth Circuit issued a stunning rebuke to the Trump Administration and called out its blatant disregard in not following court orders. I can understand the Ninth Circuit’s frustration as I watch the Trump Administration fail to follow orders from the District Courts, the Circuit Courts, and the Supreme Court. (Yes, I am talking about their failure to reimplement DACA following the Supreme Court’s decision). “First, the Board’s defiance of our previous decision in this matter and disagreement with our holding . . . was ill-advised. Our prior decision was not an advisory opinion, but a conclusive decision not subject to disapproval or revision by another branch of the federal government. . . . “Once we reached [our] conclusion, both the Constitution and the statute required the Board to implement it.” ” Castillo v. Barr, No. 19-72745, slip op. at *9-10 (9th Cir. Nov. 18, 2020) (internal citations omitted) (emphasis added). I think the Ninth Circuit expressed the frustration that many people who love the law are feeling. And kudos to Michael Kagan and law student Edgar Cervantes of the University of Nevada Las Vegas who represented Mr. Castillo in this case.

The second case is worth reading for the “dubitante” alone. (I looked it up, it means “doubting” but not dissenting). The dubitante is written by Judge Vandyke. It reads like a blog and, in fairness, he’s not a terrible blogger. He even quotes song lyrics by Meat Loaf. Of course, the problem is that a Circuit Court decision should not be written in the snarky tone of a blogger. (Leave the snark to me). That said I think it’s very important to keep an eye on Judge Vandyke, his dissents, concurrences, and even his dubitantes. (I know that the plural of “dubitante” is “dubitantes” because I asked my niece Avi, who is taking Latin in high school, how to conjugate the word). His writings seem to contain messages to the Supreme Court on how they should rule, and they might possibly serve as an audition to be appointed to the Supreme Court in the next Republican Administration. (I have read his other dissents and concurrences and because his arguments and style were so unusual, I had to look him up). He is young enough and he has the necessary bona fides to be a Republican appointee to the Supreme Court. You can read his Wikipedia page here.

The cases themselves have important nuggets for immigration practitioners. The first discusses the standards for weighing expert witness testimony in immigration proceedings. The second holds that a noncitizen who has been deported in absentia due to ineffective assistance of counsel does not need to establish prejudice to be granted relief in a motion to reopen.

How to Weigh Expert Witness Testimony – Castillo v. Barr

The Ninth Circuit held that in weighing expert witness testimony, the Board of Immigration Appeals (BIA or the Board) and the Immigration Judge (IJ) erred by not giving full weight to an expert’s testimony where the agency had ostensibly concluded that the expert was credible. Even assuming that the BIA could accord reduced weight to the expert’s testimony their reasons for doing so, in this case, were inadequate. The Ninth Circuit remanded the case to the BIA directing it to review the case once again and give full weight to the expert witness testimony.

Facts

Juan Castillo was brought to the United States from El Salvador as a child. In 1996 he was convicted of first-degree murder with the use of a firearm during gang-related activity. Mr. Castillo was a member of La Mara Salvatrucha (MS-13) which he joined a few years after arriving in the United States. Once he was incarcerated, he joined a rival gang, Mi Raza Unida (MRU). Mr. Castillo eventually tried to leave both gangs and was debriefed by law enforcement about MS-13 and MRU. Both gangs then ordered a hit on him.

After he was released on parole, DHS placed him in removal proceedings. Mr. Castillo applied for withholding of removal and protection under the Convention Against Torture (CAT). The IJ denied his withholding application finding that he had been convicted of a particularly serious crime and was statutorily precluded from obtaining relief. In support of his CAT application, Mr. Castillo called Dr. Thomas Boerman, a specialist on Central American gangs to testify on his behalf. (Many immigration practitioners that I know use Dr. Boerman – probably because we have a fair number of Central American gang cases in California and he is the guy). To understand this case, it is important to understand Thomas Boerman’s background. He has consulted on Central American gang issues for the U.S. Agency for International Development, the World Bank, and the United Nations High Commissioner for Refugees. He is an expert. As Niels Bohr (the Nobel Laureate and Danish physicist) wrote, “[a]n expert is a man who has made all the mistakes which can be made, in a narrow field.” I don’t know if Dr. Boerman has made all of the mistakes, but he does seem to be an expert in his field.

Dr. Boerman testified that Mr. Castillo faced a risk of torture from four different sources if he were deported to El Salvador. First, Mr. Castillo would be targeted by Salvadoran immigration officials because he is a tattooed former gang member. Second, he would be targeted by local police wherever he settles in El Salvador. Third, his status as a former MS-13 member who turned on his gang would make him a target for both MS-13 and other gangs because there is a hit out on him. Finally, local vigilante groups which include Salvadoran government officials engage in “extermination squads” as a strategy to rid the country of gang members. Sounds like a pretty strong case for CAT relief to me.

Prior Proceedings

The Immigration Court initially decided that Dr. Boerman’s testimony should be given reduced weight and implied that he was not a credible witness. (Ahh, the arrogance of non-experts…). The IJ held that Dr. Boerman’s statements were not supported by the record and “his testimony proposed “linking together a series of suppositions and without ‘establishing that each step in the hypothetical chain [was] more likely than not to happen.’” Castillo, slip op. at *7. The IJ found that Dr. Boerman’s testimony regarding the extermination strategy was “exaggerated” and observed that Dr. Boerman could not consistently identify which of Mr. Castillo’s tattoos were gang related. The IJ concluded that Mr. Castillo could not establish that it was more likely than not that Salvadoran immigration officials would collude with police and torture him because the documentary evidence did not mention such collusion.

Mr. Castillo appealed to the BIA. The BIA held that the IJ did not commit clear error and concluded that the record was devoid of any mention of immigration officials and police colluding to apprehend returning gang members. Mr. Castillo appealed to the Ninth Circuit. The Ninth Circuit in an unpublished decision remanded the case to the BIA holding that the IJ and the BIA improperly discounted Dr. Boerman’s testimony. They held that the IJ relied on faulty reasoning and the BIA failed to provide any other sufficient reason why his testimony and the report should be discounted. They ordered the BIA to reconsider Dr. Boerman’s testimony and its effect on Mr. Castillo’s CAT claim. Castillo v. Barr, 765 F. App’x 256 (9th Cir. March 28, 2019).

The BIA did not follow the Ninth Circuit’s instructions. The second time around, the BIA listed three reasons to discount Dr. Boerman’s testimony. First, it found that there were purported inconsistencies between Dr. Boerman’s testimony and his written declaration with respect to his familiarity with the gang that Mr. Castillo’s joined in prison. Second, it held that Dr. Boerman wrongly referred to video evidence depicting Salvadoran immigration officials beating gang members at an airport without submitting the video into evidence. Third, it held that there was a dearth of corroborating evidence to support Dr. Boerman’s testimony and declaration regarding the extermination strategy of the Salvadoran government and vigilante groups. The BIA concluded that Mr. Castillo failed to meet his burden because Dr. Boerman’s testimony was insufficient evidence, alone or in the aggregate, to establish that it was more likely than not that Mr. Castillo would be tortured.

Mr. Castillo once again appealed this decision to the Ninth Circuit. He argued that the BIA’s holding that Dr. Boerman’s testimony was not corroborated misconstrues the record. Second, he argued that the BIA did not properly aggregate Mr. Castillo’s risk of being tortured because it incorporated the IJ’s chain-of-events analysis (each part of the chain had to be proven under the more likely than not to happen for the CAT claim to succeed).

Legal Analysis

The Ninth Circuit starts its analysis by setting for the standard for CAT relief. To receive CAT status the noncitizen must establish that it is more likely than not that they would be tortured in their home country. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). (CAT relief isn’t codified in the statute so we have to rely on the regulations). The “more likely than not” standard means that the noncitizen must demonstrate that there is a more than fifty percent chance that they would be tortured in their home country. Hamoui v. Ashcroft, 389 F.3d 821 (9th Cir. 2004). Plus, the noncitizen must establish that they would be tortured with the “acquiescence” of the government. Cole v. Holder, 659 F.3d 762 (9th Cir. 2011).

The Ninth Circuit reviews the BIA’s factual findings under the “substantial evidence” standard. The Ninth Circuit must uphold the BIA’s factual findings unless the record compels a contrary conclusion. Castillo, slip op. at *9. Now usually when the Ninth Circuit trots out the “compels a contrary conclusion” language in setting forth the evidentiary standard it does not bode well for the noncitizen. It’s a very high standard. But, relax, in the next sentence the Ninth Circuit holds, “[w]here the Board does not consider all the evidence before it, either by “misstating the record [or] failing to mention highly probative or potentially dispositive evidence,” its decision cannot stand.” Ibid. (internal citations omitted). If the BIA rejects expert testimony “it must state “in the record, why the testimony was insufficient to establish the probability of torture.” . . . Improperly rejected expert testimony is legal error and, thus, is per se reversible.” Ibid. (internal citations omitted).

After setting forth this standard the Ninth Circuit brings down the hammer. I quoted the exact language in the opening paragraph. But to reiterate (because it feels just so good to write this down again) they held that the Ninth Circuit decisions are not advisory opinions but are “a conclusive decision not subject to disapproval or revision by another branch of the federal government. . . . “Once we reached [our] conclusion both the Constitution and the statute required the Board to implement it.”” Castillo, slip op. at *9-10 (internal citations omitted). The Ninth Circuit seems to be reiterating its constitutional role as set forth by the Supreme Court in Marbury v. Madison, 5 US 137, 1 Cranch 137 (1803). (Yes, I did hyperlink to Marbury v. Madison. We are at the point where we have to cite Marbury v. Madison in 2020).

Second, the Ninth Circuit rejected the BIA’s reliance on Vayatan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) to justify the BIA’s conclusion that Dr. Boerman’s testimony should be given reduced weight. Vayatan is about an IJ’s discretion to weigh the credibility and force of an authenticated document. The Ninth Circuit noted that an expert witness is not the same as an authenticated document. (That seems rather obvious). The Ninth Circuit disagreed with the BIA’s conclusion that Dr. Boerman’s testimony did not warrant full weight because he did not submit the underlying evidence that he reviewed to the IJ. They noted that the underlying facts or evidence that form the basis of an expert’s opinion in an immigration proceeding do not need to be admitted into evidence in order for the opinion or inference to be admitted. Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009). The Ninth Circuit noted that Dr. Boerman’s testimony about the video of Salvadoran immigration officials beating gang members at the airport was neither the sole nor primary basis for his opinion that Mr. Castillo would be at risk from Salvadoran officials. They noted that the BIA failed to explain why the absence of one video diminished the weight of Dr. Boerman’s expert testimony when his testimony had an independent factual basis.

Finally, the Ninth Circuit held that the BIA’s decision to give Dr. Boerman’s testimony reduced weight because it was not corroborated by other evidence in the record was erroneous. They noted that Dr. Boerman’s expert testimony was itself evidence that could support Mr. Castillo’s claim. In other words, the expert witness’s expert testimony, is, in fact, evidence. “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.” Castillo, slip op. at *12. The Ninth Circuit rejected Mr. Castillo’s chain-of-events argument. They remanded the case to the BIA with the following instructions:

“If the Board determines once again that Castillo is not entitled to relief, it must provide a reasoned explanation for why Dr. Boerman’s testimony is not dispositive on the issue of probability of torture. Once it gives full weight to Dr. Boerman’s testimony the remaining issue for the Board is to determine whether Castillo has established the government acquiescence element of his CAT claim.”

Castillo, slip op. at *12. I hope that this case is a call to arms to the Federal and State Courts to assert their authority in all cases. Our government will only survive if there is a separation of powers and checks and balances on the powers of the individual branches. This case reasserts the judiciary’s role in our government.

Castillo v. Barr, No. 19-72745 (9th Cir. Nov. 18, 2020).

A Noncitizen Does Not Have to Establish Prejudice to Reopen an In Absentia Order Due to Ineffective Assistance of Counsel – Sanchez Rosales v. Barr

A noncitizen does not have to show prejudice where ineffective assistance of counsel leads to an in absentia order of removal. It seems rather obvious that where a noncitizen does not appear at a removal hearing on the advice of their advocate, they have per se established prejudice or, at least, exceptional circumstances. This case reaffirms this principle. This case is interesting because of Judge Vandyke “dubitante.” But more importantly, it helps our clients – especially those who were represented by notaries.

Facts

Israel Sanchez Rosales and Maria Antonia Martinez came to the United States in 2000. They have two U.S. citizen children (ages thirteen and fifteen) one of whom suffers from developmental disabilities that require medication and special education. The couple hired a notario named Carlos Lewis who told them that because of their son’s challenges it would be easy for them to get green cards. Here is a link to an unpublished Ninth Circuit decision also involving Carlos Lewis. It is obviously not the Ninth Circuit’s first time encountering the work of Mr. Lewis. Anyhow Lewis filed an asylum application for the couple without their authorization. Mr. Sanchez and Ms. Martinez received a notice to appear and a notice of hearing. They took the notices to Lewis who advised them not to attend the removal hearing. The IJ ordered them removed in absentia.

Two weeks later, the couple filed their first motion to reopen. It did not include the claim that Lewis instructed them not to attend the hearing. Instead, they explained that Mr. Sanchez had contacted the immigration court to find out where he and his wife should go for their hearing and they had been told that the hearing was not on the court’s calendar. The IJ denied the motion because it did not explain why they had not appeared at the hearing. (I think being told that the hearing wasn’t calendared might be a good enough reason but…). The couple appealed the decision to the BIA. The Board affirmed the IJ’s decision and dismissed the motion to reopen. The couple timely filed a Petition for Review with the Ninth Circuit. This time they failed to file their opening brief. The Ninth Circuit dismissed the petition for failure to prosecute. It appears that Lewis filed the initial motion to reopen and the petition for review. This man has caused a lot of damage – it’s infuriating.

About eight months later (after the Ninth Circuit’s dismissal of the case), the couple filed a second motion to reopen. This time, they claimed that Lewis had instructed them not to appear at the hearing and they submitted with their motion and application for non-lawful permanent resident cancellation of removal. This time they were represented by the attorney of record in this case. The BIA denied the second motion to reopen finding that the couple had failed to establish that they were prejudiced by the ineffective assistance of counsel or fraud and they failed to present evidence sufficient to establish that their return to Mexico would result in exceptional or extremely unusual hardship for their U.S. citizen children.

Legal Analysis

The Ninth Circuit starts its analysis by clarifying that in reviewing a BIA decision it may only consider the grounds relied on by the Board. If the BIA’s decision can’t be sustained by its reasoning, they must remand the case to the BIA to adjudicate it properly. Here the BIA gave two reasons for its decision. First that the denial of the couple’s first motion to reopen had been legally correct and second, that the couple had not shown that they were prejudiced by the ineffective assistance of counsel.

The Ninth Circuit rejected the first reason out of hand noting that Lewis’ ineffective assistance had not been disclosed when the BIA decided the first motion to reopen. They held that relying solely on the previous decision would impermissibly ignore the central argument of the second motion. Then the case gets real.

The Ninth Circuit held that the BIA’s second ground for denial is legally erroneous. (Those are fighting words in a decision). They held that the couple was not required to establish that the ineffective assistance of a notario caused them prejudice. They noted that ordinarily when a noncitizen claims ineffective assistance of counsel, they must establish prejudice, but the prejudice requirement does not exist where the ineffective assistance leads to an in absentia order of removal. “[W]hen ineffective assistance leads to an in absentia removal, we have “followed the BIA’s usual practice of not requiring a showing of prejudice.” Lo v. Ashcroft, 341 F.3d 934, 939 n. 6 (9th Cir. 2003) (citing Monjaraz-Munoz v. INS, 327 F.3d 892, 897 (9^th Cir. 2003) amended by 339 F.3d 1012 (9th Cir. 2003).” Sanchez Rosales v. Barr, No. 18-70666 slip op. at *9 (9th Cir. Nov. 18, 2020). I apologize for all of the citations, but I think it’s important to understand that the Ninth Circuit based its decision on its own prior precedent. The Ninth Circuit in Lo had noted that the BIA does not normally require a showing of prejudice when the in absentia removal order is grounded on ineffective assistance of counsel. Matter of Rivera-Claros, 21 I&N Dec. 599, 603 n.1 (BIA 1996); Matter of Grijalva-Barrera, 21 I&N Dec. 472, 473 n.2 (BIA 1996).

Then, in a very interesting footnote, the Ninth Circuit noted that the specific statutory provision governing recission of an in absentia order in the two BIA decisions were repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). They further noted that the repeal of this provision had already been in effect for several years when the Ninth Circuit decided Lo. Sanchez Rosales, slip op. at *10. If you are thinking: What??? Why are they relying on pre-IIRIRA case law based on a statutory interpretation? Those are good questions; and it is where I started in my analysis of this case. It turns out that pre-IIRIRA a noncitizen could get an in absentia order reopened if they could show that their failure to appear was due to exceptional circumstances under section 242B(f)(2) of the pre-IIRIRA statute. But here’s the thing, that language hasn’t changed. Where a noncitizen is ordered removed in absentia, they can file a motion to reopen the in absentia order based on exceptional circumstances. INA §§ 240(c)(1)(A) and 240(e). The BIA had previously held that incompetence by the prior attorneys was categorically an exceptional circumstance. If you really dig down, (and read the current statute) the logic of this decision does, in fact, hold up. Plus, ineffective assistance of counsel leading to an in absentia order is categorically both an exceptional circumstance and is in fact prejudicial to the noncitizen. The Ninth Circuit concluded that the BIA abused its discretion by failing to adjudicate the couple’s motion without requiring a showing of prejudice. They remanded the case to the BIA to readjudicate the motion to reopen.

The Dubitante

Once we get past the majority decision, we get to Vandyke’s “dubitante”. Vandyke argues that it’s ridiculous for the Ninth Circuit to rely on BIA decisions that did not require a showing of prejudice for a motion to reopen an in absentia order grounded on ineffective assistance of counsel where the BIA decisions were based on prior law. Now I normally would agree with that argument, except that the requirements of IIRIRA are exactly the same. The noncitizen needs to show exceptional circumstances under both statutes to reopen an in absentia order. INA §§ 240(c)(1)(A) and 240(e). It kind of deflates Vandyke’s “dubitante”.

Vandyke then expands his argument to note that the Ninth Circuit “regularly ignores the important difference between the BIA’s direct appellate role versus our court’s indirect and supposedly deferential role on review.” Sanchez Rosales, slip op. at *13 (Vandyke, J., dubitante). He finishes his argument by noting that in 1999 the Ninth Circuit had held that a noncitizen had to establish prejudice in filing a motion to reopen an in absentia order grounded on ineffective assistance of counsel. Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999). He is right about this discrepancy. I believe it is important to pay attention to Vandyke. In summary, where a noncitizen is ordered removed in absentia where the in absentia order is grounded on ineffective assistance of counsel, they do not have to establish prejudice in a motion to reopen to obtain relief.

Sanchez Rosales, No. 18-70666 (9^th Cir. Nov. 18, 2020).