Edwin Romero Zambrano v. Jefferson B. Sessions III

878 F.3d 84
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 14, 2017
Docket16-2131
StatusPublished
Cited by7 cases

This text of 878 F.3d 84 (Edwin Romero Zambrano v. Jefferson B. Sessions III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwin Romero Zambrano v. Jefferson B. Sessions III, 878 F.3d 84 (4th Cir. 2017).

Opinion

Petition for review granted; vacated and remanded by published opinion. Judge Gibney wrote the opinion, in which Judge Keenan and Judge Wynn joined.

GIBNEY, District Judge:

Edwin Romero Zambrano appeals the decision of the Board of Immigration Appeals (the “BIA”) to affirm an Immigration Judge’s (“IJ”) decision to deny his application for asylum. Romero Zambrano claims that the BIA applied the wrong legal standard in assessing his asylum eligibility and the wrong standard of review when evaluating the I J’s decision. As explained below, we agree that the BIA applied the wrong legal standard for assessing asylum-eligibility and therefore grant the petition for review and remand to the BIA for further proceedings.

I.

Romero Zambrano, a native citizen of Honduras, joined the Honduran military after high school and helped local police arrest gang members. After Romero Zam-brano left the army, members of the “Barrio Pobres” from the 18th Street gang tried to track him down to get their revenge. Romero Zambrano moved frequently to avoid detection and tried unsuccessfully to enter the United States five times. He finally managed to enter the United States in August 2011.

The gang’s search for him continued. In 2012, armed men broke into the apartments of Romero Zambrano’s sister and former girlfriend in San Pedro Sula, Honduras, asking about his location. Gang members continued to threaten his friends and family for more than a year after that.

In early 2014, U.S. immigration authorities arrested the petitioner. The gang heard about Romero Zambrano’s potential deportation and increased their efforts to find him. In March 2014, gang members approached his family and friends in three different Honduran cities. First, several gang members assaulted one of the petitioner’s brothers in Elixir, Honduras. The members tied up the brother and his family while demanding to know Romero Zam-brano’s whereabouts. Next, masked gang members broke into the home of the petitioner’s other brother in Choloma, Honduras, asking where 1 Romero Zambrano lived. Gang members also confronted the petitioner’s former girlfriend while she visited San Pedro Sula and demanded to' know where they could find the petitioner.

After his 2014 arrest by the immigration authorities, Romero Zambrano sought asylum based on the new assaults on his family. Ordinarily, an alien must apply for asylum within one year after entering the United States. Since the petitioner entered the country in 2012, the deadline would fall sometime in 2013. But the deadline is flexible if the alien can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” 8 U.S.C. §§ 1158(a)(2)(B), (a)(2)(D). If an applicant can show changed circumstances, he must file for asylum within a “reasonable period.” 8 U.S.C. § 1252(a)(2)(D).

The legal meaning of “changed circumstances” is the central issue in this appeal. Romero Zambrano argued to the IJ and the BIA that the 2014 attacks on his family represented changéd circumstances from the 2012 .incidents due to the increased violence against his family members and the new scope of the search for him spanning various cities. The IJ rejected the petitioner’s argument and 'denied his application as untimely.

The IJ held that more severe attacks cannot amount to changed'circumstances. Specifically, the IJ said that:

[T]he Respondent [Romero Zambrano] argues that the recent intensification of threats and the ‘increasing proof of their basis constitute materially changed circumstances. ... This argument is unpersuasive. Two years ago, there was substantial evidence that his family members were targeted and questioned. Additional proof of pre-existing persecution is not a changed circumstance materially affecting the Respondent’s eligibility for asylum.

J.A. 75. Thus, the IJ denied the petition. 1

Romero Zambrano appealed, but the BIA rejected his arguments and affirmed the IJ’s decision. The BIA found that “the 2014 incidents were an escalation of the 2012 incidents.” Nevertheless, the BIA held that “we agree with the Immigration Judge that additional proof of an existing claim does hot establish changed circumstances.” J.A. 4.

H.

On appeal, the petitioner raises two issues: (1) whether circumstances that provide additional proof in support of an existing asylum claim can satisfy the “changed circumstances” exception to the one-year filing deadline; and (2) whether the BIA should have applied de novo review rather than clear error review in evaluating the IJ’s determination that the petitioner did not qualify for the changed circumstances exception. Because we find that the BIA misinterpreted the changed circumstances exception, wé need not reach the second issue of whether the BIA applied the incorrect standard of review to the IJ’s decision.

A.

The petitioner’s claim raises the threshold question of this Court’s jurisdic•tion. The courts generally lack jurisdiction to review the discretionary decisions' of an IJ or the BIA that an asylum applicant has failed to show changed circumstances. Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). The REAL ID Act of 2005, however, grants this Court jurisdiction where a petitioner raises a colorable “question of law” regarding the BIA’s determination. 8 U.S.C. § 1252(a)(2)(D); Gomis, 571 F.3d at 358-59. A number of our sister courts have found that a reviewable question of law exists where an agency used the wrong legal standard in coming to a discretionary determination. See Mandebvu v. Holder, 755 F.3d 417, 426 (6th Cir. 2014) (exercising jurisdiction where the petitioner sought to “determine as a matter of law whether the IJ improperly required that they prove something not required by the statute”); Weinong Lin v. Holder, 763 F.3d 244,. 247 (2d Cir. 2014) (exercising jurisdiction where the petitioner’s claim concerned the BIA’s categorical interpretation of the meaning of “changed circumstances”). In other words, the factual question of what happened is unreviewable, but the Court has jurisdiction to decide questions of law concerning the legal definition of a changed circumstance.

Romero Zambrano simply asks this Court to review the legal standard applied by the IJ and the BIA. Specifically, the petitioner asks the Court whether the IJ and the BIA improperly interpreted 8 U.S.C. § 1158(a)(2)(D) to mean that additional proof in support of a pre-existing but unasserted asylum claim cannot, as a matter of law, satisfy the changed circumstances exception.

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Bluebook (online)
878 F.3d 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwin-romero-zambrano-v-jefferson-b-sessions-iii-ca4-2017.