- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 03-17-2023
- Case #: 19-70964
- Judge(s)/Court Below: Bennett, C.J. for the Court; Watford, C.J.; & Friedland, C.J.
- Full Text Opinion
Petitioner sought review of a Board of Immigration Appeals (BIA) order affirming denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner also challenged the BIA’s decision not to terminate his proceeding due to a defect in the Notice to Appear (NTA) and the BIA’s claim that it “lacked authority to administratively close his case.” Petitioner entered the United States unlawfully in 2012, after his father’s murder and an attempt on his brother’s life. The Department of Homeland Security (DHS) began removal proceedings against him after he provided an interview to show credible fear of returning home to El Salvador. In 2017, the Immigration Judge (IJ) denied his application for asylum, withholding of removal, and protection under CAT. After the BIA affirmed, Petitioner timely appealed. The Court dismissed the defective NTA challenge, reasoning that when Petitioner raised a new legal argument in this Petition for Review, the BIA had not been provided notice under the new legal theory. The Court remanded the question of whether the BIA could administratively close the case due to an intervening decision by the Attorney General allowing the BIA to grant administrative closure in some instances. On the withholding of removal and asylum claims, the Court focused on the Petitioner’s second argument: the BIA had applied a clear error standard instead of the proper de novo standard in its review. Whether a protected ground meets the required nexus standard is a legal determination that the BIA is required to review de novo under 8 C.F.R. §1003.1(d)(3)(ii). The Court reasoned that if the BIA considered the IJ’s dismissal of evidence in the record under a “de novo” review, they might find a likelihood of persecution to support Petitioner’s appeal. On the CAT claim, the Court affirmed the BIA’s conclusion that Petitioner failed to present evidence that proved the government’s acquiescence to future torture. DISMISSED IN PART, GRANTED IN PART, DENIED IN PART, and REMANDED.