Monday, July 26, 2021

Third Circuit Spanks IJ and BIA for Failure to Explain Denial of Relief to Ecuadoran Fearing Persecution

In Valarezo-Tirado v. Attorney General, the U.S.. Court of Appeals for the Third Circuit, in an opinion by Judge Theodore McKee, chastised the immigration court and Board of Immigration Appeals (BIA) for explaining the denial relief to a noncitizen from Ecuador.  As described by Matthew Santoni for Law360 (login required), an "immigration judge's two-sentence, 13-word ruling denying an Ecuadorian man's request for asylum was too terse for the Third Circuit to meaningfully review, and the court's heavy workload was no excuse . . . ." (bold added).

Judge McKee explains the Third Circuit's decision to grant the petition for review, vacate the immigration judge and BIA rulings, and remand for further proceedings:

"The IJ’s failure to provide a citation or reference to anything in the record leaves us guessing at the evidence she relied upon and gives us `[nothing] to review.' [citation omitted]. `[W]e cannot give meaningful review to a decision in which [an IJ] does not explain how it came to its conclusion.' Valarezo-Tirado is correct when he argues that although the government  `suggests ways in which [Valarezo-Tirado’s] testimony might have supported [the IJ’s] conclusion,' the government can only guess whether the IJ even considered the evidence of Villa’s alleged arrest by provincial police. We fare no better. It `would be improper for us to speculate as to whether' the IJ considered such evidence, or how it factored into her conclusion. The basis for the IJ’s decision `can and should be addressed explicitly by the [IJ] upon remand.'

We have previously granted a petition for review in which the alleged basis for the BIA’s denial of relief was that `the evidence is insufficient' and `the arguments made by the [government] on appeal . . . are persua[sive]' because we could not `perform meaningful review of [such an] order.' Here, we have even less to work with.

We realize, of course, that the IJ and BIA have a tremendous caseload and very crowded dockets. . . . However, we will not permit crowded dockets or a backlog of cases to excuse an IJ or the BIA from providing a meaningful explanation of why someone has been denied relief under the asylum laws or the CAT. The most fundamental notion of due process must include an opportunity for meaningful judicial review. We reiterate that 'judicial review necessarily requires something to review and, if the agency provides only its result without an explanation of the underlying fact finding and analysis, a court is unable to provide judicial review.' The required review is simply not possible when we are provided with nothing more than the kind of one-line checklist that is relied upon here. We cannot allow an IJ or the BIA to dispense with an adequate explanation of a final decision merely to facilitate or accommodate administrative expediency.  Since `the [IJ]’s failure of explanation makes it impossible for us to review its rationale, we [will] grant [Valarezo-Tirado’s] petition for review, vacate the [IJ’s] order, and remand the matter to [the IJ] for further proceedings consistent with this opinion.'” (footnotes omitted).


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