and Submitted February 15, 2018 San Francisco, California
Petition for Review of an Immigration Judge's Decision,
Agency No. A074-826-493
Siovhan Sheridan (argued), Sheridan Law Office P.C., Tucson,
Arizona, for Petitioner.
K. Canter (argued), Trial Attorney; Keith I. McManus and
Cindy S. Ferrier, Assistant Directors; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and
David C. Nye, [*] District Judge.
panel denied Tomas Bartolome's petition for review of an
immigration judge's decision affirming an asylum
officer's negative reasonable fear determination in
reinstatement removal proceedings, and granted and remanded
his petition for review of the immigration judge's
rejection for lack of jurisdiction of his motion to reopen
reasonable fear proceedings.
panel rejected Bartolome's contention that the asylum
officer deprived him of due process by providing him a
Spanish-language interpreter, rather than an interpreter in
his native language Chuj, because Bartolome advised the
asylum officer that he understood "a lot" of
Spanish, did not indicate that he had problems understanding
the interpreter, stated that the asylum officer's summary
of his testimony was correct, and had an opportunity to
correct any errors or submit additional evidence on review
before the IJ.
panel also rejected Bartolome's argument that the IJ
deprived him of due process, concluding that the IJ gave
Bartolome sufficient time to prepare for his hearing and
submit evidence, and adequately considered Bartolome's
testimony and the evidence he submitted both to the asylum
officer and the IJ. The panel noted that reasonable fear
review proceedings are expedited and not full evidentiary
hearings, and IJs are not required to provide detailed
decisions outlining all the claims raised by the alien. The
panel also rejected Bartolome's claim of IJ bias.
panel held that substantial evidence supported the IJ's
determination that Bartolome failed to demonstrate a
reasonable fear of persecution, due to the lack of nexus
between any harm and a protected ground, or a reasonable fear
panel held that the IJ abused his discretion in denying on
jurisdictional grounds Bartolome's motion to reopen
because the IJ failed to recognize that he had at least
sua sponte jurisdiction to reopen proceedings. The
panel remanded for the IJ to exercise discretion whether to
SMITH, CIRCUIT JUDGE.
subject to reinstated orders of removal are placed in
reasonable fear screening proceedings, if they express fear
of persecution or torture in their country of removal. 8
C.F.R. §§ 241.8(e), 1241.8(e). This process
consists of an interview before a United States Citizenship
and Immigration Services ("USCIS") asylum officer
to make a preliminary determination of reasonable fear. If
the asylum officer makes a negative reasonable fear
determination, the alien may request a de novo review hearing
by an immigration judge ("IJ") of the asylum
officer's determination. These reasonable fear
proceedings, as outlined in 8 C.F.R. §§ 208.31,
1208.31, are intended to provide a fair determination of
whether an alien has a reasonable fear of persecution or
torture, which fear would require the alien to be referred to
an IJ to review eligibility for withholding of removal or
relief under the Convention Against Torture
("CAT"). However, these reasonable fear proceedings
are to be streamlined, not intended to have full evidentiary
hearings, because the alien continues to be subject to the
expedited removal process used for previously removed aliens
with reinstated orders of removal. Thus, an IJ's failure
specifically to address all of the evidence and claims before
him or her (during the reasonable fear review proceedings)
does not violate the alien's due process rights.
Nevertheless, an IJ's failure to recognize that he or she
has sua sponte authority to reopen any
matter in which he or she made a decision (including
reasonable fear review hearings) is an abuse of discretion.
has authorized the expedited removal of aliens if "an
alien has reentered the United States illegally after having
been removed . . . under an order of removal." 8 U.S.C.
§ 1231(a)(5). Congress further directed that the
alien's prior removal order "is not subject to being
reopened or reviewed, the alien is not eligible and may not
apply for any relief under this chapter, and the alien shall
be removed under the prior order at any time after the
this directive, Congress has also recognized that it must
make exceptions for aliens who demonstrate a clear
probability of persecution or torture. See 8
U.S.C. § 1231(b)(3). Thus, even an alien subject to
expedited removal may still request withholding of removal or
relief under CAT. 8 C.F.R. §§ 241.8(e), 1241.8(e),
208.31(a), 1208.31(a). Accordingly, the Attorney General
established regulations to screen for aliens who may fall
into this category. See 8 C.F.R. §§ 208.31,
regulations provide that, if a previously removed alien
expresses a fear of persecution or torture, the Department of
Homeland Security ("DHS") shall refer the alien to
"an asylum officer for a reasonable fear determination.
In the absence of exceptional circumstances, this
determination will be conducted within 10 days of the
referral." Id. §§ 208.31(b),
1208.31(b). The statute outlines that an alien has "a
reasonable fear of persecution or torture if the alien
establishes a reasonable possibility that he or she would be
persecuted on account of his or her race, religion,
nationality, membership in a particular social group or
political opinion, or a reasonable possibility that he or she
would be tortured in the country of removal."
Id. §§ 208.31(c), 1208.31(c).
the reasonable fear determination, "[t]he asylum officer
shall conduct the interview in a non-adversarial manner,
separate and apart from the general public."
Id. After the interview, the asylum officer is
required to "create a written record of his or her
determination, including a summary of the material facts as
stated by the applicant, any additional facts relied on by
the officers, and the officer's determination of whether,
in light of such facts, the alien has established a
reasonable fear of persecution or torture." Id.
the reasonable fear determination, the asylum officer elicits
"all information relating both to fear of persecution
and fear of torture." Reasonable Fear of Persecution
& Torture Determinations, INS AOBT 8/6/2008 *21, 2008 WL
7226112 (Aug. 6, 2008). Based on this evidence, the asylum
officer determines whether there is a "reasonable
possibility" that the alien established he or she would
be persecuted on account of a protected ground or tortured in
his or her country of removal. Id. Thus, the asylum
officer must assess whether the alien "demonstrat[ed]
that he has a 'subjectively genuine and objectively
reasonable' fear of future persecution."
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062
(9th Cir. 2017) (en banc) (citation omitted). "The
subjective component is satisfied by credible testimony that
the applicant genuinely fears persecution." Zhao v.
Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008). "The
objective prong is satisfied either by . . . a showing of
past persecution, or by a showing of a good reason to fear
future persecution based on credible, direct, and specific
evidence in the record of facts that would support a
reasonable fear of persecution." Id. (internal
quotation marks and citation omitted). "Even a ten
percent chance of future persecution may establish a
well-founded fear." Id. at 1029-30.
asylum officer concludes that the alien has a reasonable
fear, the officer refers the alien to an IJ for a full
consideration of a withholding of removal claim. Id.
§§ 208.31(e), 1208.31(e). However, if the asylum
officer concludes that the alien does not have a reasonable
fear, the asylum officer "shall inquire whether the
alien wishes to have an [IJ] review the negative
decision." Id. §§ 208.31(f),
1208.31(f). If an alien requests review by an IJ, the IJ
shall be provided with "[t]he record of determination, .
. . the asylum officer's notes, the summary of the
material facts, and other materials upon which the
determination was based." Id. §§
208.31(g), 1208.31(g). The IJ should conduct the review
within ten days of the alien's request. Id.
"reasonable fear review hearing" is conducted by an
IJ. It "is not as comprehensive or in-depth as a
withholding of removal hearing in removal proceedings."
Immigration Court Practice Manual, ch.
7.4(e)(iv)(E). "[I]t is a [de novo] review of the
DHS asylum officer's decision." Id.; OPPM
No. 99-5 ¶ IV(D) (requiring de novo review).
"Either party may introduce oral or written statements,
and the court provides an interpreter if necessary."
Immigration Court Practice Manual, ch. 7.4(e)(iv)(E). After
this review hearing, the IJ may concur with the asylum
officer and return the case to DHS for removal. 8 C.F.R.
§§ 208.31(g)(1), 1208.31(g)(1). In that case, the
alien has no right to appeal the IJ's decision to the
Board of Immigration Appeals. Id. Nonetheless, the
alien may appeal the IJ's negative fear determination to
our court under 8 U.S.C. § 1252(a)(1), (5). See
Ayala v. ...