Not a Lexis+ subscriber? Try it out for free.

Immigration Law

CA5 on Cuba, Political Opinion, Evidence: Gutierrez Acosta v. Garland (unpub.)

Gutierrez Acosta v. Garland (unpub.)

"Gutierrez Acosta contends that the BIA erred in two respects. First, he challenges the BIA’s decision to give dispositive effect to the IJ’s finding that legitimate, non-political reasons could have motivated the harms he suffered. Even assuming the record supported that finding, he maintains that the mere existence of potential legitimate reasons does not in itself foreclose the possibility that the abuses were also politically motivated. “Other evidence in the record,” Gutierrez Acosta notes, “could still establish that [his] political opinions were ‘one central reason’ for the persecutory action.” But the BIA “ignored all the record evidence that supports a finding that the police were motivated by [his] political opinions.” Second, he contends that, having declined to review the IJ’s adverse credibility determination, the BIA erred in disregarding all of his testimony that suggested he was in fact persecuted on account of his political opinion. His arguments are persuasive. ... The BIA failed to consider any of the evidence suggesting that Gutierrez Acosta’s political opinions were one central reason for his mistreatment. Nor did the BIA contemplate the possibility or address the indications that purported justifications for actions taken against Gutierrez Acosta may have been pretextual. For these reasons, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND for the BIA to conduct further proceedings consistent with this opinion."

[Hats off to Daniel Horowitz for representing the petitioner pro bono publico!]