A Guatemalan man seeking asylum will get a review of his case because an immigration judge applied an improper standard when determining whether the man reasonably feared persecution or torture if he were sent back to his home country, a unanimous 4th U.S. Circuit Court of Appeals panel has ruled in a case of first impression.
The U.S. Department of Justice argued that the decision of the immigration judge who reviewed an asylum officer’s determinations should be upheld because they were based on a “facially legitimate and bona fide reason,” a standard that the appeals court ruled was developed in the limited setting of denying visas, and thus inapplicable in an asylum case.
Judge Pamela Harris, writing for the 4th Circuit in its Feb. 2 opinion, said the government has yet to persuade a circuit to agree that courts should apply a more deferential standard than the usual substantial evidence standard in reasonable fear determinations.
“The government may not remove a noncitizen to a country in which there are substantial grounds for believing he would be tortured, or in which he faces a clear probability of persecution on account of a protected ground,” Harris wrote. “And if the noncitizen meets the relevant burden of proof, then both [Convention Against Torture] relief and withholding relief are mandatory—just as they are in the context of a full removal hearing, when we apply our already very deferential substantial evidence standard of review.”
I hear what you’re saying, but…
Adan De Jesus Tomas-Ramos first entered the U.S. without authorization in 2017 but was returned to Guatemala a month later. He returned to the U.S. in 2018 with his teenage son, and the U.S. Department of Homeland Security reinstated the previous removal order but allowed him to live in Virginia with electronic monitoring. When DHS sought to remove Tomas-Ramos in 2019, he requested a reasonable-fear interview, claiming that Guatemalan gang members had threatened to kill him and his family because he wouldn’t allow them to recruit his son. After agreeing to the interview, DHS mistakenly deported Tomas-Ramos but brought him back to the U.S. for a reasonable-fear hearing when he filed suit.
An asylum officer found Tomas-Ramos’ story credible but determined that he hadn’t established a reasonable fear of persecution or torture because though the threats could indicate that he was harmed on account of a particular social group of his son’s “immediate family members,” that group does not qualify as a “cognizable and protected” particular social group because it “lacks social distinction.” (Protected characteristics are race, religion, nationality, political opinion, and membership in a particular social group.)
The officer further found no evidence that Tomas-Ramos was being targeted because of his religious beliefs (he’d claimed that gangs would also target him as a churchgoer) and that he failed to establish a reasonable possibility that he would be persecuted by or with the consent or acquiescence of a public official, as required under the CAT.
In 2020, an immigration judge reviewed and upheld the ruling, finding no nexus to any protected ground. The judge also doubted that gang members would harm Tomas-Ramos for the reasons he expressed, and was skeptical about his claim that he couldn’t avoid harm by relocating within his country.
Regarding the government’s position that the “facially legitimate and bona fide reason” standard—laid out by the U.S. Supreme Court in 1972’s Kleindienst v. Mandel—should be applied, the court ruled that in the context of challenging the denial of visas, the executive branch has virtually unlimited discretion to make rules for the admission of noncitizens and that the decisions are generally not reviewable. But that “unfettered” discretion doesn’t translate to the ability to remove a noncitizen pursuant to a reinstated removal order where the individual believes he would be tortured or face the clear probability of persecution on account of a protected ground.
The court further found that had Mandel has no “sensible application” because Mandel claimed that officials had denied his visa because of his political views rather than the reasons stated, contrary to the legitimate and bona fide reason standard. Here, there was no suggestion that Tomas-Ramos was denied asylum for reasons other than those stated by the asylum officer.
The substantial evidence standard of review thus applied, and Tomas-Ramos established the requisite nexus to a protected ground in support of his claim of persecution. Harris noted that the asylum officer found his continued testimony regarding the reason gang members were threatening his life credible, and the 4th Circuit ruled in 2011’s Crespin-Valladares v. Holder that the family provides a “prototypical example” of a particular social group and that “the threat of death qualifies as persecution.”
Tomas-Ramos met his burden of showing a “reasonable possibility” that he would be persecuted on a protected ground if returned to Guatemala.
“The record compels a finding that Tomas-Ramos was persecuted at least in central part because of his family relationship to his son, which qualifies as a protected ground for withholding purposes,” Harris wrote.
Attacking the kinship ties issue was a “legal mistake,” said Jeremy McKinney, a North Carolina board-certified immigration law specialist with McKinney Immigration Law in Greensboro. McKinney is not involved in the case but commented on the ruling at the request of Lawyers Weekly. The mistake is one that immigration courts have made time and again, McKinney said, especially after the former administration’s justice department attempted to “walk back kinship ties” as a particular social group.
“Tomas-Ramos prevailed, like several others at the 4th Circuit in recent years, because the persecutors’ motivation for threatening him was the ‘relationship to his son—that is, on account of his membership in his son’s immediate family,’” McKinney wrote in an email.
Another safe place at home
The court also rejected the government’s argument that the immigration judge correctly held that Tomas-Ramos could safely relocate within his country because of the court’s finding of past persecution.
As the agency’s own manuals make clear, a showing of past persecution gives rise to a presumption of a reasonable fear of future persecution, and that presumption may be overcome only if it is established, by a preponderance of the evidence, that “under all the circumstances, it would be reasonable for the applicant to relocate,” Harris wrote.
Based on her incorrect belief that Tomas-Ramos hadn’t established past persecution, the immigration judge was unable to assess relocation under the proper framework of a man with a well-founded fear, the court determined.
The court also remanded Tomas-Ramos’ torture claim for further consideration because the immigration judge never mentioned it at the hearing or in her written order.
McKinney wrote that seeking review of a negative reasonable fear determination is rare because the noncitizen often accepts a quick deportation rather than enduring prolonged litigation or detention, something that Tomas-Ramos declined to do.
“Tomas-Ramos fought and won,” McKinney wrote.
Michael Lieberman of Kirkland & Ellis in Washington represented Tomas-Ramos. Patricia Bruckner of the U.S. Department of Justice represented the government. Neither attorney immediately responded to a message seeking comment on the case.
The 25-page decision is Tomas-Ramos v. Garland (Lawyers Weekly No. 001-025-22). The full text of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher