Pomavilla-Zaruma v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: April 2, 2024
• Docket: 20-3230
• Status: Unpublished

Opinion

20-3230 Pomavilla-Zaruma v. Garland

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of April, two thousand twenty-four.

PRESENT: MYRNA PÉREZ, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

Rosa Elvira Pomavilla-Zaruma

Petitioner,

v. No. 20-3230

Merrick B. Garland, United States Attorney General

Respondent.

_____________________________________ FOR PETITIONER: Reuben S. Kerben, Esq., Kerben Law Firm, P.C., Kew Gardens, NY.

FOR RESPONDENT: Liza S. Murcia (Brian M. Boynton, Acting Assistant Attorney General, Anthony C. Payne, Assistant Director, Melissa Neiman-Kelting, Assistant Director, W. Manning Evans, Senior Litigation Counsel, on the briefs), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (BIA) decision and petition for rehearing, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the petition for rehearing is

GRANTED, our prior decision is VACATED, and we REMAND the case for

further proceedings consistent with this order.

Petitioner Rosa Elvira Pomavilla-Zaruma, a native and citizen of Ecuador,

seeks review of an August 24, 2020 decision of the BIA affirming an August 29,

2018 decision of an Immigration Judge (IJ) denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).

In re Rosa Elvira Pomavilla-Zaruma, No. A 206 506 589 (B.I.A. Aug. 24, 2020), aff’g

2 No. A 206 506 589 (Immig. Ct. N.Y. City Aug. 29, 2018). After we issued our

opinion in this matter, Pomavilla-Zaruma v. Garland, 81 F.4th 145 (2d Cir. 2023), the

government petitioned for rehearing. In that petition, the government argued

that our application of circuit precedent impermissibly imposed judge-made

procedural rules on the agency. It also argued for the first time that this case

should be remanded to the BIA because the agency failed to apply its own

precedent. As explained below, the government misreads our earlier opinion

and we reject the contention that our Circuit’s precedent imposes additional

procedural rules on the agency. However, we agree that the agency overlooked

its own precedent in this case and agree with the government that remand is

warranted for the agency to apply its precedent properly in the first instance. We

therefore grant the government’s petition on that basis, vacate our previous

judgment, and issue the following order in this case. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal, to

which we refer only as necessary to explain our decision.

I. Background

In May 2013, Pomavilla-Zaruma attempted to enter the United States

without valid entry documents. Border patrol agents apprehended her and, by

3 her account, “started hitting [her] on the back with. . . something they carry on

their belts.” Certified Administrative Record (CAR) at 145. The following day,

border patrol agents interviewed her. When asked the “purpose for [her] entry

into the United States,” she answered “[t]o reside and seek employment and

continue my education.” Id. at 135. When asked whether she feared persecution

or torture if she was sent back to Ecuador, Pomavilla-Zaruma answered “[n]o.”

Id. at 136. She was placed in removal proceedings, conceded removability, and

timely applied for asylum, withholding of removal, and relief under the

Convention Against Torture.

The following year, in 2014, Pomavilla-Zaruma completed a credible fear

interview where she alleged that a man in her home country, whom she identified

by name, began pursuing her and trying to inappropriately touch her when she

was a child, and that he began raping her when she was a teenager. She further

alleged that the man had threatened her mother, that police would not protect her

because she was indigenous, and that she could not relocate because indigenous

people were not permitted to move freely in Ecuador.

The asylum officer asked Pomavilla-Zaruma whether she had indicated in

her border interview that she was not afraid to return to Ecuador. She answered

4 that she “couldn’t really understand” the border patrol officer because “[m]ost of

it was in English.” CAR at 29. She also told the asylum officer about her

experience entering the United States the day before the border interview,

explaining that she was “very scared” because “one officer had hit [her].” Id.

The asylum officer then found Pomavilla-Zaruma to have a credible fear of

persecution.

In 2018, Pomavilla-Zaruma testified before an IJ and echoed her claims from

her credible fear interview. The government cross-examined Pomavilla-Zaruma

about the border interview, specifically questioning why she had stated that she

came to the United States for employment and education. She explained: “Well,

to be honest with you, that day I was very nervous. I couldn’t really understand

much, and they were only talking in English.” Id. at 123. The IJ expressed

skepticism of that explanation, and Pomavilla-Zaruma’s counsel responded that

“she is somewhat confused and was confused at the time of the [border]

interview.” Id. at 129.

The IJ denied all relief because he found Pomavilla-Zaruma to be

noncredible on two grounds. First, the responses she gave during the border

interview about coming to the United States for employment and education and

5 not fearing persecution were inconsistent with her later account of fleeing to the

United States to escape persecution. Second, her testimony that the interview

was conducted in English was “simply unbelievable” because the record of the

interview stated that it was conducted in Spanish and because border interviews

are generally conducted in the interviewee’s native language. CAR at 88.

Pomavilla-Zaruma appealed to the BIA, which affirmed the IJ’s credibility

decision on similar grounds in 2020. In addition to challenging the adverse

credibility finding, Pomavilla-Zaruma claimed for the first time that the border

interview record was improperly admitted into evidence at the IJ hearing. The

BIA rejected that argument as waived and also rejected it on the merits.

Pomavilla-Zaruma timely petitioned this Court for review.

On August 30, 2023, we issued an opinion, Pomavilla-Zaruma v. Garland, 81

F.4th 145 (2d Cir. 2023), granting Pomavilla-Zaruma’s petition and remanding to

the BIA. We held that the BIA correctly determined that Pomavilla-Zaruma

waived any challenge to the admission of the border interview record. However,

we held that the agency had failed to adequately consider the reliability of the

border interview before relying on it to find her not credible, applying

Ramsameachire v. Ashcroft, 357 F.3d 169, 179-82 (2d Cir. 2004), which sets out certain

6 factors for evaluating the reliability of such interviews. In doing so, we clarified

the law of our Circuit, holding that an IJ is required to consider the Ramsameachire

factors if the record indicates that the factors are relevant. Because we could not

confidently predict that the agency would reach the same conclusion as to

Pomavilla-Zaruma’s credibility absent its error under Ramsameachire and its

progeny, we remanded.

The government then filed its petition for rehearing, arguing that our

application of Ramsameachire impermissibly imposed judge-made procedural

rules on the agency and overlooked intervening BIA precedent on the use of

border interviews in credibility determinations in light of statutory amendments

postdating Ramsameachire. The government noted—for the first time—that the

agency in this case never applied that BIA precedent and requested a remand for

the BIA to do so. As explained below, we are by no means persuaded that our

application of Ramsameachire would impose a judge-made procedural rule. But,

based on the government’s new argument, we do agree that the agency should

apply its own precedent regarding the reliability of border interviews in the first

instance and we remand for that purpose.

7 II. Border Interviews and Credibility Determinations After Matter of J-C-H-F-

Although, as explained below, we will remand to the agency for failing to

address its own precedent, we reject the Government’s argument that our Circuit’s

precedents regarding the agency’s obligations when relying on border interviews

in making credibility determinations have been abrogated. We maintain that the

agency must consider the Ramsameachire factors when they are relevant in a given

case. Providing this clarification requires some background on credibility

determinations, our Circuit’s precedents, and the Real ID Act of 2005.

On a petition for review of a BIA decision, we review the agency’s factual

findings, including adverse credibility findings, for substantial evidence, meaning

we require “that they be supported by reasonable, substantial and probative

evidence in the record when considered as a whole.” Hong Fei Gao v. Sessions, 891

F.3d 67, 76 (2d Cir. 2018) (cleaned up). Although we treat factual findings as

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary,” 8 U.S.C. § 1252(b)(4)(B), we do not “defer to unreasoned rulings, or

those based on legal error, faulty analysis, or misreadings of the record,” Dong Gao

v. Bd. of Immigr. Appeals, 482 F.3d 122, 127 (2d Cir. 2007) (quotation marks omitted).

8 Prior to the enactment of the Real ID Act of 2005, our Circuit developed case

law to guide IJs’ consideration of statements made in border interviews when

evaluating asylum applicants’ credibility. See Ramsameachire v. Ashcroft, 357 F.3d

169 (2d Cir. 2004). We recognized that there are inherent limitations in asylum

applicants’ willingness and ability to express their fear of persecution during

border interviews. Persons fleeing state-sponsored abuse in their home countries

may travel weeks to seek asylum in the United States, arriving travel-worn,

apprehensive of governmental authorities, and lacking English fluency, access to

legal counsel, or knowledge of our immigration laws. It is therefore unsurprising

that some asylum seekers feel intimidated, reluctant, or confused during the

interviews with border patrol officers that occur immediately after their arrival.

Moreover, because a border interview is not an interview for asylum, the

interviewing officers might not pose questions aimed at developing the details of

an asylum claim or record a verbatim transcript of the interviewee’s responses.

See id.at 179-80 (first citing Balasubramanrim v. I.N.S., 143 F.3d 157, 162–63 (3d Cir.

1998), and then citing Senathirajah v. I.N.S., 157 F.3d 210, 218–20 (3d Cir. 1998)).

For all these reasons, we held in Ramsameachire that when the inconsistencies

underlying an adverse credibility finding arise from an applicant’s statements in

9 a border interview, the IJ “must closely examine” the border interview to ensure

it is sufficiently reliable “to merit consideration.” 357 F.3d at 179. Nor are we

alone in this regard. Other circuits have similarly cautioned IJs against uncritical

reliance on statements made in border interviews, given the particular

circumstances of those interviews. See, e.g., Qing Hua Lin v. Holder, 736 F.3d 343,

353 (4th Cir. 2013); Lin Lin Tang v. United States Atty. Gen., 578 F.3d 1270, 1278–80

(11th Cir. 2009); Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1040–41 (9th Cir. 2008);

Moab v. Gonzales, 500 F.3d 656, 660–61 (7th Cir. 2007).

Recognizing the inherent problems in relying on border interviews, we

articulated four non-exhaustive factors in Ramsameachire that “provide the

analytical framework for assessing the reliability” of such interviews. 357 F.3d at

180. A border interview record is “inherently less reliable” if (1) the record

“merely summarizes or paraphrases the [noncitizen]’s statements” rather than

including “a verbatim account or transcript,” (2) “the questions asked are not

designed to elicit the details of an asylum claim, or the . . . officer fails to ask follow-

up questions that would aid the [noncitizen] in developing his or her account,”

(3) “the [noncitizen] appears to have been reluctant to reveal information to

[immigration] officials because of prior interrogation sessions or other coercive

10 experiences in his or her home country,” or (4) “the [noncitizen]’s answers to the

questions posed suggest that the [noncitizen] did not understand English or the

translations provided by the interpreter.” Id. (cleaned up).

We stated that “[i]n all cases,” “[t]hese aspects of the interview must be

deemed reliable before the [agency] uses the interview to assess the [applicant’s]

credibility.” Id. (emphasis added). After Ramsameachire, however, our Court’s

subsequent opinions left some uncertainty around whether consideration of the

Ramsameachire factors is actually required of IJs or simply best practice. See Latifi

v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005); Yun-Zui Guan v. Gonzales, 432 F.3d 391,

396 (2d Cir. 2005).

Soon after our decision in Ramsameachire, Congress enacted the Real ID Act

of 2005. See Div. B of Pub. L. No. 109-13, 119 Stat. 302 (Real ID Act). The Real ID

Act codified how IJs are to conduct their credibility determinations. As relevant

here, the Real ID Act broadly allows IJs to “base a credibility determination on . . .

the consistency between the applicant’s or witness’s written and oral statements

(whenever made and whether or not under oath, and considering the

circumstances under which the statements were made),” while making clear that

they should“[c]onsider[] the totality of the circumstances, and all relevant

11 factors[.]” 8 U.S.C. § 1158(b)(1)(B)(iii).

Seeking to reconcile our case law, we held in the prior opinion that “an IJ is

required to consider the Ramsameachire factors before relying on a border interview

for an adverse credibility determination if the record indicates the factors may be

relevant.” Pomavilla-Zaruma, 81 F.4th at 151 (emphasis in original). In its

petition for rehearing, the government argues that we failed to consider

intervening authority from the BIA: Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018),

a published decision regarding how IJs are to evaluate and use border interviews

in making credibility determinations. The government also argues that our

application of Ramsameachire imposed a judge-made procedural rule on the

agency, in violation of Garland v. Ming Dai, 593 U.S. 357, 365 (2021), and it further

contends that Ming Dai has abrogated any application of the Ramsameachire factors.

We disagree.

First, our understanding of an IJ’s obligations under Ramsameachire is

entirely consistent with Matter of J-C-H-F-. In that opinion, the BIA interpreted

Ramsameachire in light of Congress’s enactment of the Real ID Act. It interpreted

the Real ID Act to allow consideration of “statements made in border and airport

interviews, as long as the [IJ] takes into account any issues regarding the

12 circumstances under which they were made.” 27 I&N Dec. at 213. Noting that

our Court had adopted a set of factors in Ramsameachire for the IJ to assess in

determining whether a border interview was reliable, the BIA agreed that “the

factors listed in Ramsameachire are proper considerations for assessing the

reliability of an interview.” Id. at 215. However, the BIA clarified that an IJ

“should assess the accuracy and reliability of the interview based on the totality of

the circumstances, rather than relying on any one factor among a list or mandated

set of inquiries.” Id.

In reaching its conclusion, the BIA cited favorably to a First Circuit decision

that declined to adopt Ramsameachire. See id. (citing Ye v. Lynch, 845 F.3d 38, 44

(1st Cir. 2017)). The First Circuit’s decision rejected the idea that IJs must always

“undertake an inquiry into the reliability of initial interviews with Border Patrol

agents using specifically enumerated factors.” Ye, 845 F.3d at 44. And the BIA

agreed with the First Circuit insofar as it “declined to employ a checklist” or

impose on IJs “a list or mandated set of inquiries.” 27 I&N Dec. at 215.

However, that is beside the point; we do not read Ramsameachire to impose this

type of mandatory checklist. Contrary to the government’s argument, the BIA’s

analysis in Matter of J-C-H-F-, drawing on the reasoning of the First Circuit, does

13 not entail a repudiation of our Circuit’s case law.

Rather, the qualified reading of Ramsameachire this panel adopted is

consistent with Matter of J-C-H-F-, which itself acknowledges the continued

relevance of the Ramsameachire factors. As stated, we do not suggest that there is

a mandatory checklist of inquiries for the evaluation of border interviews in all

cases. In requiring consideration of the Ramsameachire factors only when there is a

basis for their relevance in the record, we would simply hold the agency to its

statutory obligation to “[c]onsider[] . . . all relevant factors” and “consider[] the

circumstances under which [border interview] statements were made.” 8 U.S.C.

§ 1158(b)(1)(B)(iii).

In other words, our understanding of the continued import of Ramsameachire

derives from statutory text. We agree, in short, with the Eleventh Circuit that

“when an IJ ‘consider[s] the circumstances’ of an airport interview, the IJ should

keep in mind that an airport interview is not an application for asylum.” Lin Lin

Tang, 578 F.3d at 1279 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii) and subsequently citing

Ramsameachire, 357 F.3d at 180). And we add that consideration of “all relevant

factors,” 8 U.S.C. § 1158(b)(1)(B)(iii), necessarily includes consideration of the

factors unique to border interviews that we identified in Ramsameachire—when

14 they are relevant in a given case.

The continued application of Ramsameachire thus does not impose any

“additional judge-made requirements on agencies that Congress has not

prescribed[.]” Ming Dai, 593 U.S. at 365 (citing Vt. Yankee Nuclear Power Corp. v.

Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978)). On the contrary, it merely

ensures that the agency is abiding by the governing statute and the law imposed

by Congress, which accords with our limited role in reviewing BIA decisions.

Consistent with Matter of J-C-H-F- and the REAL ID Act, when the BIA

applies its precedent upon remand and evaluates whether it should rely on

statements made in Pomavilla-Zaruma’s border interview to evaluate her

credibility, it should consider “all relevant factors” and “the circumstances under

which the statements were made.” 8 U.S.C. § 1158(b)(1)(B)(iii). Ramsameachire

sets out what some of those relevant factors and circumstances are for border

interviews. We would thus understand failure to consider those factors, if they

are relevant based on the record, to be error—under the BIA’s precedent, under

our precedent, and under the Real ID Act.

III. The BIA’s Failure to Address Its Precedent

Although we believe the BIA erred when it failed to consider certain

15 Ramsameachire factors that were relevant in this case, we remand on a narrower

ground. We have consistently held that the agency is required to follow its own

precedent, and we have remanded when it has failed to do so. See Paucar v.

Garland, 84 F.4th 71, 87 (2d Cir. 2023); Ojo v. Garland, 25 F.4th 152, 168 (2d Cir. 2022).

Here, as the government concedes, the agency in this case failed to address or

apply Matter of J-C-H-F-, which was directly relevant to its consideration of

Pomavilla-Zaruma’s interview and credibility. We therefore grant the

government’s request to remand for the agency to apply its own precedential

opinion in considering Pomavilla-Zaruma’s credibility. See Ojo, 25 F.4th at 168

(“[T]he agency’s failure to follow its own precedent . . . requires remand[.]”); cf.

Singh v. U.S. Dep’t of Justice, 461 F.3d 290, 296 (2d Cir. 2006) (“[A]n administrative

agency must adhere to its own regulations.”) (citing United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260 (1954)); 8 C.F.R. § 1003.1(g).

IV. Admission of the Border Interview Record

Finally, we again reject Pomavilla-Zaruma’s argument that her border

interview record was improperly admitted into evidence at her IJ hearing. When,

as in this case, the BIA declines to consider an issue because it is waived, “this

Court’s review is limited to whether the BIA erred in deeming the argument

16 waived.” Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015). “[T]he BIA

may refuse to consider an issue that could have been, but was not, raised before

an IJ,” id. at 555, and here, the BIA was correct as a factual matter that neither

Pomavilla-Zaruma nor her counsel objected to the border interview record’s

admission. Therefore, the BIA did not err in deeming Pomavilla-Zaruma’s

evidentiary argument waived. Moreover, Pomavilla-Zaruma did not address the

BIA’s waiver finding in her petition to this Court and thereby abandoned any

challenge to it. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).

* * *

For the foregoing reasons, the government’s petition for rehearing is

GRANTED, our prior decision is VACATED, and we REMAND the case for

further proceedings consistent with this order. This panel retains jurisdiction to

rule, if necessary, on the issues raised in a petition for review after the disposition

of the remand. See Shi Liang Lin v. DOJ, 416 F.3d 184, 192 (2d Cir. 2005) (retaining

jurisdiction to decide issues on appeal following remand to the BIA); cf. United

States v. Jacobson, 15 F.3d 19, 21–22 (2d Cir. 1994) (retaining jurisdiction while

remanding to the district court for supplementation of the record). Pomavilla-

Zaruma may return the case to this Court by notifying the Clerk of the Court

17 within thirty days of entry of a final BIA order on remand. Such notification will

not require the filing of a new notice of appeal. If notification occurs, the matter

will be referred automatically to this panel for disposition.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court