CA7 on IJ Error: Jimenez-Aguilar v. Barr

Jimenez-Aguilar v. Barr

"A regulation requires an IJ to provide such notice when “an alien expresses fear of persecution or harm upon return” to his native land. 8 C.F.R. §1240.11(c)(1) (emphasis added). ... The Board held, however, that the regulation was irrelevant because Jimenez-Aguilar “had a reasonable opportunity to apply for asylum” without the need for a warning. That is not, however, what the regulation says. It does not ask whether an alien had a “reasonable opportunity” to seek asylum in the absence of advice from the IJ. It requires the IJ to give specified advice in defined circumstances—and advice from the IJ might have alerted Jimenez-Aguilar that he was entitled to seek more than one kind of relief. ... The IJ accordingly should have given the regulatory advice, which could have led to further evidence on topics such as whether the government is complicit in private violence. Jimenez-Aguilar asserts that he was unaware that he might be eligible for asylum or withholding of removal and seeks remand so he may apply for both forms of relief. This is enough to show that the immigration judge’s error prejudiced him. The petition for review is granted and the proceeding is remanded for a new removal hearing."

[Hats way off to Carla I. Espinoza!]