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Fourth Circuit holds that Immigration Judges have an obligation to create a record for appellate review.

Jun 17, 2021

Anyone who has ever tried to challenge a decision by an Immigration Judge or the Board of Immigration Appeals knows that it is difficult to overturn an unfavorable ruling, even under the best of circumstances. The deferential “substantial evidence” standard, which requires the Court of Appeals to affirm if there is evidence in the record that could support the agency’s decision, is nearly impossible to satisfy in most cases. Indeed, one judge has compared granting a petition for review to finding a unicorn.1

But the Fourth Circuit recently made challenges a little easier, holding that immigration judges have a legal obligation to create a record for appellate review.

Horrific Facts

Miguel Angel Arevalo Quintero was born in El Salvador in 1994 and forced, likely through threats of violence, to join the MS-13 gang as a teenager. Quickly realizing he made a mistake after he was forced to extort money and deliver drugs, he tried to leave the gang. In response, MS-13 members beat him and threatened to kill him, telling him death was the only way out.

In 2013, he decided that he had one other option: leave El Salvador. So Quintero fled to the United States. Once there, gang members continued to send threats over Facebook, asking where he was and saying things like, “we take some time, but we don’t forget.” Petitioner feared MS-13 would murder him if he returned to El Salvador.

He had good reason to be afraid. Two years after his escape, MS-13 members shot, dismembered, and beheaded one of his cousins for trying to leave the gang. More than that, they committed the crime in the open, in front of the cousin’s mother and 11-year-old sister.

Back in the U.S., Quintero supported himself by working construction jobs, but when he became homeless in 2017, he moved into a vacant apartment with three other young people. When police discovered them living there without authorization, all four were arrested and Quintero was turned over to ICE. The government then began removal proceedings.

Quintero sought asylum and protection under the Convention Against Torture. He appeared in immigration court without an attorney to explain why he feared returning to El Salvador. The immigration judge denied his claim.

She found Quintero’s testimony that he left MS-13 not to be credible and found no evidence he was entitled to relief. But her decision included no discussion (except a passing reference in a footnote) of whether Quintero was a member of a social group entitled to relief.

An Obligation to Explain

The Fourth Circuit majority began its opinion by noting that while the standards of review in immigration cases “demand deference, … they do not render [the courts’] review toothless.” It also noted that the Board of Immigration Appeals had assumed that Quintero’s testimony was credible (notwithstanding the immigration judge’s adverse finding), so the Fourth Circuit was required to do so as well.

The panel went on to hold, in keeping with the other Circuits to address the issue, that the immigration judge has a responsibility to develop a record for appeal. It based that conclusion first on the Immigration and Nationality Act’s instruction to “administer oaths, receive evidence, and interrogate, examine, and cross-examine” witnesses. But it went on to say that (as other circuits have held) the duty to develop the record is “an essential requirement of a full and fair hearing” under the due process clause of the Fifth Amendment. So, although this case is nominally a statutory one, there is an “inextricable connection between due process and the statutory protections provided in the [Immigration and Nationality] Act.”

The Fourth Circuit, splitting with several other circuits, rejected the idea that this obligation applied only in pro se cases. (Though, because this case involved a pro se attempt to secure relief, this is arguably dicta.) But the Court did go on to note that the obligation to develop the record is especially important in the pro se context given: (1) the complex nature of immigration law, (2) the disadvantages faced by uncounseled citizens (especially those who do not speak English), and (3) the gravity of the interests at stake. In support, the majority emphasized that noncitizens with counsel were 5.5 more likely to obtain relief from removal.

If the immigration judge fails to develop the record, the majority continued, the reviewing court should presume that the immigrant was prejudiced.

Conclusions Are Not Enough

The panel said that, in pro se cases, immigration judges have a duty to explain hearing procedures and legal requirements in plain English, including by providing guidance on how they may prove the elements of their claim. Immigration judges further have a duty to inquire of and elicit all facts relevant to the immigrant’s claim, and “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”

The panel explained that this duty is “analogous to and consistent with the duty of federal courts to liberally construe pro se complaints.” The immigration judge thus has a duty to help an immigrant articulate and to consider any potentially viable particular social group supported by the record.

The Fourth Circuit rejected the government’s claim that an earlier Board of Immigration Appeals decision (Matter of W-Y-C & H-O-B) applied in pro se asylum cases. In that case, the Board held that an immigrant forfeited her right to claim asylum in an appeal to the Board based on member ship in a particular social group unless she had made the same argument to the immigration judge. The Fourth Circuit relied on the same challenges faced by pro se immigrants discussed above to reject the government’s argument.

Here, the immigration judge did not probe into or attempt to clarify which groups Quintero might have belonged to. Nor did she try to help Quintero understand what he must do to show membership or ask other relevant questions. More than that, the immigration judge did not include any discussion of social groups in her written decision besides a passing remark in a footnote.

The Fourth Circuit also emphasized that “[i]t is an abuse of discretion for the Board to arbitrarily ignore relevant evidence. … Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present … will be fairly considered and weighed by those who decide their fate.” The immigration judge’s cursory acknowledgment of Quintero’s past sufferings in this case was not enough. Nor was it enough to make a conclusory reference to country conditions that was devoid of any citation to the record.

For all these reasons, the panel granted Quintero’s petition for review and remanded the case to the Board of Immigration Appeals with instructions to send the case back to an immigration judge for further fact finding.

Conclusion

The implications of this case may well extend beyond immigration law. The majority’s invocation of due process rights suggest that litigants before other administrative tribunals may be able to use the ruling to challenge skimpy administrative decisions in other contexts. The majority’s emphasis on the immigration judge’s failure to consider, in her written decision, all of the evidence presented is particularly relevant to other court-like administrative proceedings.

The case is Quintero v. Garland, 19-1904

The panel included Judges Motz, Wynn (author), and Floyd.

Judge Motz concurred separately.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

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