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Geoffrey Hoffman, Apr. 13, 2020
"I was moved this morning to write about a recent decision from the Fifth Circuit. This is an insightful and sensitive decision from the 2-person panel’s majority, Judges Dennis and King, with Judge Jones dissenting. The April 9th decision is Inestroza-Antonelli v. Barr.
In the very first paragraph, the essence of the decision is announced: “Without addressing the coup, the BIA found that any change in gender based violence was incremental or incidental and not material. Because this conclusion is not supported by the record, we grant the petition and remand." Id. at 1.
Procedurally, the case involved an in absentia order of removal from 2005. In 2017, the petitioner moved to reopen proceedings outside the 90-day deadline for such motions based on a change in country conditions in Honduras. The petitioner argued that in Honduras since the time of her original removal order there had been “a 263.4 percent increase in violence against women since 2005.” She submitted a trove of documents to support her motion. The Immigration Judge, and Board on appeal denied her motion to reopen.
As recounted in the panel’s decision, there had been a military coup in Honduras in 2009. Specifically, there were several principal changes in the country as a result: “(1) the Gender Unit of the Honduran National Police, established between 2004 and 2005, has been restricted in its operations, and access to the Unit is now limited or nonexistent; (2) the power of the Municipal Offices for Women to address domestic violence has been severely diluted, and officials have been removed from their positions for responding to women’s needs, especially those related to domestic violence; (3) institutional actors have targeted women for violence, including sexual violence, and threatened the legal status of over 5,000 nongovernmental women’s, feminist, and human rights organizations that have opposed the post-coup government’s policies; (4) the rate of homicides of women more than doubled in the year after the coup and has continued to steadily increase, ultimately becoming the second highest cause of death for women of reproductive age; and (5) in 2014, the status of the National Institute for Women was downgraded and other resources for female victims of violence were eliminated….”
The crux of the Immigration Judge’s decision in denying her motion to reopen was that the violence suffered by women in Honduras is an “ongoing problem” and the increase allegedly did not represent a “change in country conditions.” The Board, in its decision, did not even mention the coup, finding instead that the IJ had not clearly erred” because the evidence reflected only an “incremental or incidental,” rather than a “material” change in country conditions.
I would like to point out several noteworthy and instructive aspects of this excellent decision.
First, in analyzing her claim, the Fifth Circuit’s majority noted, as is usual, that the government had introduced “no conflicting evidence.” Indeed, they did not introduce any evidence of country conditions in Honduras at all. Instead, on appeal they “cherry-pick[ed]” excerpts from the evidence introduced by the petitioner. Most typically, the relied on a 2014 Department of State report describing the availability of “domestic violence shelters and municipal women’s offices.”
This first point is important because it accurately describes what is typical of these asylum proceedings. The government often relies on little beyond the State report, and introduces no other evidence of its own. The result sometimes leads to tortured arguments on appeal, nitpicking before the Board, or unfair conclusions before the immigration judge.
It is frustrating sometimes when we litigate these cases and we see parties attempt to shoehorn their conclusions into preconceived molds. This selective reasoning should be called out more often. Many times when confronted with a record that contains a treasure trove of material that is largely favorable to the immigrant, the government is at a loss about how to respond on appeal. Instead of agreeing to a remand, they are faced with defending a sparse record with support for their position. As such, they have to (assuming they do not agree to a remand) cull through the record to find anything to shore up the precarious reasoning in the administrative decisions below.
Second, the majority rejects reliance on a prior case where a petitioner had not presented sufficient evidence of changed country conditions. As astutely pointed out by the majority, it makes no sense to hold that the current petitioner is unable to meet her evidentiary burden merely because a prior petitioner had failed to do so. In the words of the majority, “to hold that Inestroza-Antonelli is precluded from proving that conditions changed as a factual matter during this period simply because a previous petitioner failed to do so would violate the ‘basic premise of preclusion’—i.e., ‘that parties to a prior action are bound and nonparties are not bound.’ Id. at 7 (citing 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4449 (3d ed. 2019)). It is refreshing to see a panel rely on the famous federal practice and procedure treatise.
Third, the decision does a wonderful job of elucidating the “substantial evidence” standard, which is used so often against the immigrant-petitioner. Here, the majority explains that this standard does not mean that the Court of Appeals reviews the BIA decision to determine whether “there theoretically could have been some unevidenced occurrence that would make its findings correct.” Id. at 5 (emphasis added). Instead, the “substantial evidence” standard just means what it says: whether a party has produced substantial evidence in support of their position. Here, the government - as noted - provided no evidence against the petitioner’s position. In fact, the record “compels” the conclusion that conditions have “significantly changed,” according to the majority.
Fourth, the decision takes to task the BIA’s lack of analysis in its decision, specifically the failure on the part of the agency even to mention the “coup” in Honduras. Instead, there was nothing but a conclusory statement that the Board had “considered [the petitioner’s] arguments.” We have seen, for example, other courts of appeals such as the Seventh Circuit, take to task the BIA in recent months. See Baez-Sanchez v. Barr (7th Cir. 2020) (Easterbrook, J.) . It is a very good sign that circuit courts are making searching inquiries, demanding compliance from the Board and EOIR, and not engaging in mere cursory review.
There was a frustration shown in that, as they noted, the Board evidenced a “complete failure” to address the “uncontroverted evidence” of a clear significant “turning point” in Honduras’ history. The majority characterized this failure as an abuse of discretion by the BIA. On a separate point concerning the Board’s rejection of an argument about her abusive husband’s return to Honduras in 2009, as a changed in country conditions, the majority stopped short of calling that argument’s rejection an “abuse of discretion.” In a footnote, the majority noted several sister circuits that agreed that such a change should be characterized as a change in “personal circumstances.”
The most notable thing about the panel’s 2-1 decision besides its well thought-out reasoning is the lack of any discussion involving Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018), anywhere in either the majority’s or dissent’s decisions. Arguably, A-B- is related and has been used (routinely) by the government to argue against relief for women who are similarly situated. Because this case turned on a denial of a motion to reopen in 2017, and there was no Attorney General’s decision until 2018, there was no occasion for the IJ and, later, the BIA rely on the AG’s A-B- decision. To the extent that AG Sessions in A-B- did not rule out all gender-based violence claims, the more important take away here is this: Matter of A-B- can be overcome and is no prohibition on relief, despite what a number of judges and BIA members may believe, so long as the petitioner can produce substantial evidence in support of his or her claims, as the petitioner did so well here. (Note, since this decision relates to a motion to reopen, the case will now be remanded to the BIA and IJ and the petitioner’s fight will continue on remand.)
Judge Edith Jones in her dissent, while never relying outright on A-B-, still takes affront at the perceived failure to “defer” to the BIA. In a telling passage, she states: “The majority has failed to defer to the BIA, which, hearing no doubt hundreds (or thousands) of cases from Honduras, must be far more familiar with country conditions than judges working from our isolated perch . . . . .” This is a scary position. While it is true the BIA has heard thousands of cases from Honduras, this cannot and should not form the basis for any rationale to blindly “defer” to the Board.
This type of deference and the attempted “rubber-stamping” that it engenders was exactly what Justice Kennedy warned about in his short but biting concurrence in Pereira v. Sessions. To quote Justice Kennedy, the “type of reflexive deference exhibited in some of these cases is troubling…it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018), Kennedy, J., concurring (emphasis added). Justice Kennedy was right. The dissent’s transparent and clearly forthright encapsulation of the arguments in favor of “deference” highlights the dangers inherent in such a position and shows just why Chevron must (and will) be reconsidered."
Geoffrey Hoffman, Clinical Professor, University of Houston Law Center, Immigration Clinic Director
(Individual capacity; Institution for identification only)