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Sixth Circuit’s Asylum Ruling Vacates Board of Immigration Appeals Decision Under High Abuse of Discretion Standard

Adding to the growing list of courts ruling on immigration cases this month, the Sixth Circuit recently vacated a Board of Immigration Appeals (“BIA”) decision to deny a woman’s motion to reopen her immigration proceedings. In a unanimous opinion, Judge John Bush held that the Board of Immigration Appeals had abused its discretion by discrediting evidence presented by the woman that she would be singled out for persecution and that circumstances in her native country had changed.  The decision sheds lights on how the Sixth Circuit intends to review similar cases in the future and provides a roadmap for practitioners and their clients attempting to ascertain which information may help or hurt them during their own immigration proceedings. 

In Trujillo Diaz v. Sessions, the petitioner, Maribel Trujillo Diaz, is a Mexican citizen who was apprehended by Immigration and Customs Enforcement (“ICE”) and placed in removal proceedings in 2007.  At her merits hearing, Trujillo Diaz sought asylum, withholding of removal under the Immigration and Nationality Act, withholding of removal under the Convention Against Torture, and voluntary departure.  During this hearing, Trujillo Diaz testified that she feared for her safety in Mexico because she believed the drug cartel La Familia would seek revenge against her and her family for her brother’s refusal to work for them and his subsequent flight to the United States.  The immigration judge found that Trujillo Diaz’s asylum application was untimely filed, rendering her ineligible for asylum.  As a result, she had to meet the higher burden of proof required for withholding that she establish a clear probability of future persecution.  The immigration judge held that she could not meet that burden because the cartel had not threatened her or anyone else in her immediate family besides her brother and subsequently denied her application for asylum and withholding of removal.  However, Trujillo Diaz remained in the United States under an ICE order of supervision. 

In February 2017, Trujillo Diaz learned that her father had been kidnapped by the Knights Templar, another drug cartel, who then threatened him that they would hurt the rest of the family if they could not get their hands on Trujillo Diaz and her brother. Based on this new information, Trujillo Diaz filed a motion to reopen her immigration proceedings based on changed country conditions and a motion to stay removal. 

For asylum and withholding of removal, one of the statutory requirements for eligibility is that the applicant show a “well-founded fear of persecution” for asylum or the applicant’s “life or freedom would be threatened” for withholding of removal. For both categories, the applicant must also show that the persecution is on account of her race, religion, nationality, membership in a particular social group, or political opinion.  In addition, this showing must be established by a likelihood of the applicant being “singled out individually” for persecution based on a protected ground.  Evidence of general persecution in the applicant’s country of removal, without some connection to the applicant herself, is not enough.

To prove these elements, Trujillo Diaz submitted a declaration from her father that detailed the cartel’s threats to hurt the family if they could not find Trujillo Diaz and her brother, as well as an expert witness’s declaration about the threat of future harm to her. The Board of Immigration Appeals discredited the declarations and denied Trujillo Diaz’s motions, finding that the declaration was “speculative and conclusory,” and finding no correlation between her father’s kidnapping and La Familia’s attempt to recruit her brother.

On appeal, the Sixth Circuit reversed and remanded, finding that the BIA had abused its discretion in summarily discrediting Trujillo Diaz’s father’s affidavit. Contrary to the BIA, the Sixth Circuit found the declaration to contain “concrete, factual assertions as to the familial motivation behind [the] kidnapping and threat of harm to Trujillo Diaz” and “explicitly link[ed]” the kidnapping and threats of harm to Trujillo Diaz to her familial ties with her father and brother.  According to the Sixth Circuit, the BIA abused its discretion by discrediting the declaration despite the absence of any assertions which were “inherently unbelievable.”  Thus, because the BIA’s decision rested entirely on the declaration being discredited, the Sixth Circuit remanded the case back to the BIA to consider evidence about whether Trujillo Diaz feared specific persecution on account of her familial relationship. [1].

The Sixth Circuit’s decision in Trujillo may be indicative of future immigration cases before the court, demonstrating that the Court intends to examine the BIA closely to ensure that the rationale behind its decisions are more than conclusory, and will not hesitate to overturn the BIA’s ruling even under the stringent “abuse of discretion” standard.  Accordingly, practitioners and their clients attempting to reopen immigration proceedings should ensure that specific and detailed evidence is submitted before the BIA in order to lay the groundwork for a potential, and hopefully successful, appeal.

[1] The Sixth Circuit additionally rejected the BIA’s findings regarding Trujillo Diaz’s arguments under Convention Against Torture for similar reasons.

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