United States Court of Appeals For the First Circuit
No. 17-1634
LUIS ELIAS SANABRIA MORALES,
Petitioner,
v.
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
Ilana Etkin Greenstein, American Immigration Lawyers' Association, Gregory Romanovsky, and Romanovsky Law Offices, on brief for petitioner. Enitan Omotayo Otunla, Trial Attorney, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Zoe J. Heller, Senior Litigation Counsel, on brief for respondent.
July 24, 2020 LYNCH, Circuit Judge. Luis Elias Sanabria Morales
petitions for review of a decision by the Board of Immigration
Appeals ("BIA") to deny his application for deferral of removal
under the United Nations Convention Against Torture ("CAT"). We
deny the petition.
I.
Sanabria was born in Venezuela on August 7, 1972. He
last entered the United States on November 5, 2012, and was
convicted of heroin trafficking in 2014.
On January 21, 2015, the Department of Homeland Security
("DHS") served Sanabria with a notice of intent to issue a final
administrative removal order that informed him that he was subject
to administrative removal under 8 U.S.C. § 1228(b). The notice
alleged that Sanabria was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony
as defined by 8 U.S.C. § 1101(a)(43)(B).
On February 2, 2015, Sanabria requested withholding of
removal under 8 U.S.C. § 1231(b)(3) or CAT protection. He
submitted a statement that claimed he feared that drug traffickers
who forced him to smuggle drugs to the United States would
retaliate against him if he returned to Venezuela. He also claimed
he feared persecution, torture, and death because of his earlier
membership in a Venezuelan opposition political party called
COPEI. On February 17, 2015, DHS issued a final administrative
- 2 - removal order and warrant of removal against Sanabria that found
him removable based on his aggravated felony conviction and
ineligible for any discretionary relief.
On June 30, 2016, a DHS asylum officer conducted a
reasonable fear interview of Sanabria. The officer found that
Sanabria's "testimony was sufficiently detailed, consistent and
plausible in material respects" and found it credible. Sanabria
was placed into withholding-only proceedings and referred to an
immigration judge ("IJ").
On August 29, 2016, the IJ gave Sanabria a two-week
continuance to file his application and suggested that he find a
lawyer. On September 14, 2016, the IJ gave Sanabria another two-
week continuance because he was still looking for a lawyer. On
September 28, 2016, Sanabria told the IJ that he "talked to one
attorney and he promised to visit me this week." The IJ gave
Sanabria another three-week continuance. On October 19, 2016, the
IJ asked Sanabria if he was still looking for a lawyer. Sanabria
answered, "I'm going to do this myself, your honor." He then
repeated, "I'm going to represent myself."
On the same day, Sanabria filed an asylum application
seeking withholding of removal and submitted documentation in
support of his application. On January 17, 2017, he submitted
further documentation. On January 26, 2017, an IJ heard the merits
of Sanabria's application. Although Sanabria had been provided a
- 3 - list of attorneys offering pro bono services and granted three
continuances to seek counsel, he represented himself.
At the outset of the hearing, the IJ noted that
Sanabria's application would be considered an application for CAT
deferral of removal because Sanabria's conviction made him
ineligible for withholding of removal, either statutory or under
the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.
§§ 1208.17(a), 1208.18(a)(1). Sanabria replied that he was trying
to withdraw his guilty plea and instead go to trial, but he did
not otherwise dispute the IJ's statement that the conviction
limited his application to deferral of removal.
At the hearing, Sanabria testified as follows. Since
1999, Sanabria owned an electronics and clothing store in San
Antonio, Venezuela, his hometown. He made numerous trips to the
United States to buy inventory for the store. He is married and
has one son.
In September 2012, Isaac Alcorcon, the owner of an auto
parts store in a nearby town, approached Sanabria to buy a laptop
and an iPad. Alcorcon then asked Sanabria if he wanted to work
as a drug trafficker. Sanabria refused. Alcorcon later bought
another iPad from Sanabria and then called Sanabria to tell him
that it was not working and to demand its repair or a refund.
When Sanabria went to Alcorcon's business for the repair, Alcorcon
was with two individuals, one named Jorge and one wearing a police
- 4 - uniform. When Sanabria began to use the supposedly broken iPad,
he saw that it had been loaded with photos of his wife and child.
Alcorcon told Sanabria that he should reconsider his refusal to
work as a drug trafficker.
Sanabria ultimately agreed to do so. Alcorcon told
Sanabria not to worry because "he own[ed] the police." Sanabria
did not report Alcorcon to the police because he believed the
police were corrupt and worked with criminals like Alcorcon.
On November 5, 2012, Sanabria traveled from Venezuela to
Boston via Aruba after ingesting balloons of heroin. Jorge drove
him to the airport in Caracas. Officers from the Venezuelan
National Guard escorted Sanabria to his gate so that he could avoid
security.
In Boston, an individual called Chiquito met Sanabria.
They checked into a hotel in Chelsea, Massachusetts, so that
Sanabria could expel the balloons of heroin. Before he had
expelled the balloons, Sanabria collapsed in the hotel room, where
hotel staff found him. While being taken to the emergency room
in an ambulance, Sanabria vomited plastic condoms containing
heroin.
Sanabria stayed in the hospital in a coma for four days.
After he woke up, he spoke to his wife in Venezuela, who passed on
instructions from Alcorcon that he was to waive his right to an
attorney, decline assistance from the Venezuelan consulate, and
- 5 - confess to the police that he had been carrying drugs. Sanabria
followed these instructions and was arrested. After his arrest,
Alcorcon contacted Sanabria's wife to say that she had done "the
right thing."
Sanabria's wife and son then moved twice within
Venezuela to hide from Alcorcon. Neither Alcorcon nor other drug
traffickers made contact with them after November 2012.
Sanabria was charged in Massachusetts court with
conspiracy to transport heroin. He attempted to plead guilty in
November 2013, but the plea was rejected when Sanabria raised the
possibility of a duress defense. Ultimately, on April 18, 2014,
he pleaded guilty to the lesser offense of trafficking in eighteen
grams or more of heroin and sentenced to not less than three and
a half years and not more than six years. He was the only one
arrested or prosecuted, either in the United States or Venezuela.
Shortly after Sanabria's conviction, in 2014, his
brother-in-law was killed at Sanabria's store, which was then
burned. Sanabria testified that he suspected the drug traffickers
killed his brother-in-law and burned his store to threaten him.
Sanabria testified that he feared that he would be
persecuted, tortured, or killed if he returned to Venezuela. He
said the drug traffickers would learn of his return to Venezuela
from connections at the airport.
- 6 - The IJ denied Sanabria's application. After carefully
recounting Sanabria's testimony, the IJ held that Sanabria's
conviction was an aggravated felony as defined by 8 U.S.C.
§ 1101(a)(43)(B) and presumptively a particularly serious crime
that barred him from withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(B)(ii).
With respect to deferral of removal, the IJ then held
that Sanabria had not established that it was more likely than not
that he would be tortured by or with the acquiescence of the
Venezuelan government if he were removed. He noted that Sanabria
was unaware of the location of Alcorcon and his collaborators and
that Sanabria's wife, son, and mother continued to live in
Venezuela, unharmed by drug traffickers or by the government. He
also noted that Sanabria had no evidence that Alcorcon was
responsible for burning Sanabria's store or killing his brother-
in-law, and that the drug traffickers had not contacted Sanabria
since his arrest in 2012. For these reasons, the IJ concluded
that Sanabria's claim that he would be tortured was speculative.
On February 27, 2017, Sanabria appealed to the BIA. On
the basis that his computer access in jail was limited, Sanabria
sought and received a one-month extension to file his brief with
the BIA. He did not ask for more time to find counsel and
ultimately filed his BIA brief pro se on May 8, 2017. He did not
argue that his conviction was not for a particularly serious crime
- 7 - or otherwise challenge the IJ's finding that his conviction
rendered him eligible only for deferral of removal. He argued
that his fear was not speculative, citing to the country condition
report's description of the Venezuelan government's ties to drug
cartels. He also submitted new evidence, including an email from
his tenant to his wife, recounting a January 2017 incident in which
three men in Venezuelan National Guard uniforms entered Sanabria's
apartment, asked about Sanabria's whereabouts, and beat the
tenant's husband; a police report lodged by the tenant's husband;
and a medical report about the husband's treatment after the
incident.
On May 24, 2017, the BIA dismissed Sanabria's appeal.
It held that Sanabria had not "meaningfully dispute[d] that, as a
result of a conviction for a particularly serious crime, he is
precluded from being granted either form of withholding of
removal." It then "agree[d] with the Immigration Judge that
[Sanabria] ha[d] not established eligibility for deferral of
removal under the CAT." It found that Sanabria's claim that he
would be tortured was "based upon a series of assumptions and
speculations." It found that his claims that drug traffickers had
burned his store and killed his brother-in-law and that his past
political activity would jeopardize his safety lacked support from
"any documentary evidence." It noted that his wife, son, and
mother continued to live unharmed in Venezuela. Although the BIA
- 8 - "recognize[d] that human rights abuses occur in Venezuela," it
found that Sanabria's own fear was "too speculative in nature and
insufficiently corroborated to establish that" he would be
tortured by, at the instigation of, or with the acquiescence of a
public official or someone acting in an official capacity.
As to Sanabria's new evidence, the BIA found that,
although it could support Sanabria's fear of returning to his
hometown, it did not establish that he could not avoid harm by
relocating within Venezuela, as his family had done. Finally, it
found that Sanabria's "speculation" that drug traffickers would
monitor his return to Venezuela was unsupported by the record. It
denied Sanabria's request to remand the record to the IJ for
consideration of the new evidence because it would not "affect the
outcome of [Sanabria's] case."
On June 2, 2017, Sanabria filed separate motions to
reconsider and remand with the BIA. The record does not establish
whether the BIA addressed these motions.
On June 22, 2017, Sanabria timely filed a petition for
review with this court. Sanabria filed his opening brief and
reply to the government's brief pro se. After counsel agreed to
represent Sanabria pro bono in August 2019, the parties filed a
round of supplemental briefing.
- 9 - II.
We must uphold the agency's factual findings as long as
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Thapaliya v.
Holder, 750 F.3d 56, 59 (1st Cir. 2014) (quoting Sunarto Ang v.
Holder, 723 F.3d 6, 10 (1st Cir. 2013)). Although "we review the
agency's legal interpretations de novo, subject to appropriate
principles of administrative deference," we may not entertain
arguments not made to the BIA, which "fail[] for lack of
exhaustion." Molina De Massenet v. Gonzales, 485 F.3d 661, 664
(1st Cir. 2007). Where, as here, "the BIA adopts and affirms the
IJ's ruling but also examines some of the IJ's conclusions, this
Court reviews both the BIA's and IJ's opinions." Perlera-Sola v.
Holder, 699 F.3d 572, 576 (1st Cir. 2012) (citing Matovu v. Holder,
577 F.3d 383, 386 (1st Cir. 2009)).
To be entitled to deferral of removal under the CAT, an
alien must show that it is "more likely than not that he or she
would be tortured if removed to the proposed country of removal."
8 C.F.R. § 1208.16(c)(2); Ruiz-Guerrero v. Whitaker, 910 F.3d 572,
575 (1st Cir. 2018). "As part of this showing, [the alien] must
establish that the harm would be 'inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.'" Ruiz-
Guerrero, 910 F.3d at 575 (quoting 8 C.F.R. § 1208.18).
- 10 - In his petition, Sanabria advances three challenges to
the BIA's decision. First, he filed new evidence with his opening
brief to this court that he argues demonstrates the likelihood
that he will be tortured. Second, he argues that the IJ failed
to conduct a mandatory factual analysis of whether Sanabria's
conviction was for a particularly serious crime and limited his
application to deferral of removal. Third, he argues that the IJ
misadvised him of the relevant law at his merits hearing by
conflating statutory withholding of removal, withholding of
removal under the CAT, and deferral of removal under the CAT.
The government urges that we lack jurisdiction to review
the BIA's denial of Sanabria's CAT claim, relying on 8 U.S.C.
§ 1252(a)(2)(C), which provides that "no court shall have
jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a [qualifying]
criminal offense." But, after briefing concluded, the Supreme
Court rejected this argument, holding that because "[a] CAT order
is distinct from a final order of removal and does not affect the
validity of a final order of removal[,] . . . §[] 1252(a)(2)(C)
. . . do[es] not preclude judicial review of a noncitizen's factual
challenges to a CAT order." Nasrallah v. Barr, 140 S. Ct. 1683,
1694 (2020). We have jurisdiction to review Sanabria's petition.
We conclude that the record does not compel the
conclusion that Sanabria demonstrated eligibility for deferral of
- 11 - removal under the CAT. See Morris v. Sessions, 891 F.3d 42, 48
(1st Cir. 2018) (taking the same approach). The two documents
Sanabria submitted for the first time with his opening brief in
this court are a September 1, 2017, letter to Sanabria from the
logistics director of COPEI, the opposition party with which
Sanabria was involved, and an internal organizational chart for
the international airport in Caracas that shows Jorge Alcorcon as
the chief of security.
It is clear that we cannot consider these documents.
Our review is limited to "the administrative record on which the
order of removal is based." 8 U.S.C. § 1252(b)(4)(A). We do not
consider documents that are not contained within that record.
See, e.g., Nantume v. Barr, 931 F.3d 35, 39 n.4 (1st Cir. 2019)
("[W]e are constrained to consider only the record that was before
the agency."); Cabas v. Barr, 928 F.3d 177, 181 n.1 (1st Cir. 2019)
(declining to consider materials submitted for the first time with
the opening appellate brief).
With respect to the administrative record itself, "we
focus our review on whether the record compels a contrary
conclusion to the one reached by the [BIA]." Ruiz-Guerrero, 910
F.3d at 575. We conclude that it does not. The BIA specifically
noted that Sanabria did not establish that he could not avoid harm
by relocating within Venezuela, as his wife, son, and mother
already had. Since 2012, the drug traffickers have not tried to
- 12 - make contact with Sanabria or his relocated family members, much
less to harm them. Although Sanabria offered evidence that men
wearing Venezuelan National Guard uniforms went to his house in
San Antonio, this does not undermine the IJ's finding that he could
avoid harm by relocating within Venezuela.
The BIA also correctly noted that Sanabria offered no
direct evidence to the IJ, beyond his conjecture that drug
traffickers would immediately become aware of his return to
Venezuela and would seek to harm him, that he would be tortured.
He admitted that he did not know who was responsible for the damage
to his store and murder of his brother-in-law, and provided no
evidence that it was drug traffickers. And he did not demonstrate
that any harm to him would be caused by or with the acquiescence
of the Venezuelan government. These shortcomings preclude a
conclusion that the record compels a finding that Sanabria is
eligible for deferral of removal under the CAT.
Second, there was no error in the BIA's conclusion that
the IJ properly found that Sanabria's conviction was for a
particularly serious crime. An alien "convicted . . . of a
particularly serious crime" is ineligible for withholding of
removal. 8 U.S.C. § 1231(b)(3)(B)(ii). The statute further
provides that
an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term
- 13 - of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.
Id. § 1231(b)(3)(B). The Attorney General has determined that an
aggravated felony conviction for drug trafficking is presumptively
a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii)
absent "circumstances that are both extraordinary and compelling."
Matter of Y-L-, 23 I&N Dec. 270, 274 (A.G. 2002). Although Y-L-
did not
define the precise boundaries of what those unusual circumstances would be, they would need to include, at a minimum: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles. Only if all of these criteria were demonstrated by an alien would it be appropriate to consider whether other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit) might justify departure from the default interpretation that drug trafficking felonies are "particularly serious crimes." . . . [S]uch commonplace circumstances as cooperation with law enforcement authorities, limited criminal
- 14 - histories, downward departures at sentencing, and post-arrest (let alone post-conviction) claims of contrition or innocence do not justify such a deviation.
Id. at 276–77.
The BIA noted that Sanabria did "not meaningfully
dispute" the IJ's conclusion that his conviction was for a
particularly serious crime in his appeal to the BIA. The only
discussion of his conviction in his brief to the BIA states:
The only criminal conviction I have is the very same reason for my [CAT] request. I would have never committed such a crime if it wasn't for the death threats against my family. This crime jeopardized my freedom and was opposed to the moral and values that are instilled in me. The Judge rejected my petition because he just saw the nature of the conviction without overlooking the acts in which I was obligated to commit.
Sanabria did not otherwise argue that the IJ should have concluded
that his conviction was not for a particularly serious crime or
specifically refer to that portion of the IJ's decision.
Even assuming arguendo that this argument is not waived
for failure to exhaust administrative remedies, Sanabria's
challenge fails on its merits. The IJ correctly recounted the
circumstances that led to Sanabria's conviction and invoked the
presumption that his conviction constituted a particularly serious
crime, referring specifically to Y-L-. The record does not compel
the conclusion that Sanabria's conviction was not for a
particularly serious crime under the test set forth in Y-L-.
- 15 - Sanabria agreed to carry the drugs on behalf of an international
drug smuggling ring. Although Sanabria was convicted of
trafficking in eighteen grams or more of heroin, evidence before
the IJ showed that the total drug weight exceeded 200 grams, a
much more significant drug quantity. The record also shows that
Sanabria received $8,000 as a payment for his services after
arriving in Boston. The Attorney General's decision in Y-L- makes
clear that "a very small quantity of controlled substance," "a
very modest amount of money paid for the drugs in the offending
transaction," "merely peripheral involvement by the alien in the
criminal activity," and "the absence of any organized crime or
terrorist organization involvement" are "all" required "at a
minimum" to qualify for the "extraordinary and compelling
circumstances" exception. 23 I&N Dec. at 276-77. Even assuming
arguendo that Sanabria's sentence of not less than three and a
half years but not more than six does not trigger the automatic
statutory inclusion of any conviction that resulted in a sentence
of at least five years, this record does not compel a conclusion
that Sanabria's conviction met each of these factors and
demonstrated "extraordinary and compelling circumstances." The
six factors give content to the "extraordinary and compelling
circumstances" test, and we must abide by them.
Sanabria further argues that the IJ failed to perform
the fact-bound analysis required by Y-L-. We assume arguendo that
- 16 - Sanabria sufficiently argued to the IJ that his conviction did not
render him ineligible for withholding of removal. Even so,
Sanabria's argument fails.
The IJ's decision thoroughly recited the facts from
Sanabria's testimony and then invoked the presumption in Y-L-.
The IJ was "not required to dissect in minute detail every
contention that" Sanabria advanced. Raza v. Gonzales, 484 F.3d
125, 128 (1st Cir. 2007). Rather, the IJ was required only to
"fairly consider[] the points raised by [Sanabria] and
articulate[] its decision in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
and the issues and reached a reasoned conclusion." Id. The IJ
was not required on this record to set forth a detailed analysis
of the "extraordinary and compelling circumstances" exception.1
Nor, as explained, did the BIA err by affirming the IJ's decision.
1 By analogy, in the context of clear error review, where a lower court has issued only a brief order in which "specific findings are lacking, we view the record in the light most favorable to the ruling, drawing all reasonable inferences in support of the challenged ruling." United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999). We do so because "in many situations, the [lower] court's findings or reasons can be reasonably inferred" despite an order's brevity. Cotter v. Mass. Ass'n of Minority Law Enf't Officers, 219 F.3d 31, 34 (1st Cir. 2000). Doing so here in the application of the similar substantive evidence standard, we conclude that the IJ's finding that the presumption was not rebutted was supportable for the reasons described above.
- 17 - Sanabria does not argue that the IJ's analysis of
Sanabria's conviction prejudiced Sanabria's ability to demonstrate
the likelihood that he would be tortured. Because the record does
not compel a finding that Sanabria's conviction was not for a
particularly serious crime, Sanabria's argument that the IJ should
have considered his eligibility for withholding of removal fails.
Finally, the record refutes Sanabria's argument that the
IJ misadvised him on the law. The IJ correctly advised Sanabria
that the application Sanabria had to file for deferral of removal
and both kinds of withholding of removal was the same. The IJ did
not tell Sanabria that the standards of proof were the same for
each kind of relief. Nor does this exchange suggest that the IJ
misapplied the standards when considering Sanabria's application.
III.
Sanabria's petition for review is denied.
-Dissenting Opinion Follows-
- 18 - THOMPSON, Circuit Judge, dissenting. Unlike my
colleagues in the majority, I see merit in Sanabria's preserved
argument that the IJ failed to evaluate properly whether Sanabria's
underlying conviction was for a "particularly serious crime," a
term of art in this context that, as the majority discussed and as
applied by the IJ and BIA here, had the effect of cutting Sanabria
off from certain relief he was pursuing. In my view, the IJ and
BIA erred by incorrectly applying the Matter of Y-L- test to assess
fully Sanabria's eligibility for relief. And so I write
separately to explain why I believe this matter should be
remanded.2
Before diving in, I want to briefly revisit the law that
is so central to my disagreement with my colleagues in the
majority. An aggravated felony conviction for drug trafficking
is presumptively a particularly serious crime under 8 U.S.C.
§ 1231(b)(3)(B)(ii), and that presumption is a rebuttable one
because it applies only absent "circumstances that are both
extraordinary and compelling." Matter of Y-L-, 23 I&N Dec. at
2 I pause briefly at the outset to note that, while my colleagues assume arguendo that this particular argument is properly before us, I would explicitly so find: both before the IJ and then on appeal to the BIA, Sanabria did plenty to raise, and thereby exhaust, the argument that the particularly-serious- crime designation should not apply due to his extraordinary and compelling circumstances. And, therefore, the BIA's conclusion that Sanabria had failed to "meaningfully dispute" the IJ's conclusion that he was ineligible for "either form of withholding of removal" was incorrect.
- 19 - 274. Put differently, the presumptive particularly-serious-crime
label automatically affixed to someone who committed an aggravated
felony like drug trafficking is not irremovable -- and the way to
peel it off is to show that the crime involved extraordinary and
compelling circumstances.
But neither the IJ first, nor the BIA later, bothered to
assess whether the particularly-serious-crime presumption had been
rebutted by Sanabria by way of his efforts to demonstrate
extraordinary and compelling circumstances. This, pure and
simple, was error. And not only was this error, but this was
error we cannot remedy from our appellate perch. I explain.
The IJ certainly was aware of the entirety of the Matter
of Y-L- test -- he cited it in his decision and purported to apply
it in rendering his decision. Even so, the IJ made no mention of
the extraordinary-and-compelling-circumstances piece of the Matter
of Y-L- test he relied on. Instead, he let the particularly-
serious-crime presumption stand without ever making any
extraordinary-and-compelling-circumstances determination, and, by
extension, certainly never weighed Sanabria's testimony and other
evidence to assess the six Matter of Y-L- considerations. He was
dutybound to make those findings because the case he cited required
him to do just that.3 His failure to do so constitutes error.
3 By the way, the government does not bother to dispute that the back end of the "presumptively particularly serious unless
- 20 - The same goes for the BIA, which applied the presumption
and went no further. Indeed, like the IJ's decision before it,
the BIA's decision offers no analysis at all on the extraordinary-
and-compelling-circumstances part of the Matter of Y-L- test.
Both simply applied the presumption that Sanabria's offense was a
particularly serious crime, took withholding of removal off the
table, and that was that. No reference to or discussion of the
rest of the Matter of Y-L- test and its caveat with respect to
extraordinary and compelling circumstances. And so, no conclusion
as to whether the showing had been made.
The majority writes that it was not necessary for the IJ
"to dissect in minute detail every contention that" Sanabria
advanced, but rather he needed only to "fairly consider[] the
points raised by [Sanabria] and articulate[] [a] decision in terms
adequate to allow a reviewing court to conclude that the agency
has thought about the evidence and the issues and reached a
reasoned conclusion." Raza, 484 F.3d at 128. I don't disagree
with any of this. The disconnect here is that the majority thinks
assessing the extraordinary-and-compelling-circumstances angle
(i.e., applying the Matter of Y-L- test in full, rather than just
the default particularly-serious-crime presumption) required some
extraordinary and compelling circumstances are shown" test was not undertaken by either the IJ or BIA, and that that failure does not constitute error. Instead, it simply states its position that such a showing of the requisite circumstances was not made below.
- 21 - legally unnecessary, painstaking dissection by the IJ, and that
engaging in that dissection would have amounted to more than was
necessary to give us enough to review. The majority then concludes
that the IJ wasn't required to provide "detailed analysis" of the
extraordinary-and-compelling-circumstances component of the test.
I, on the other hand, think the interplay of the particularly-
serious-crime presumption and extraordinary-and-compelling-
circumstances exception in the Matter of Y-L- test required only
the fair consideration and "articulat[ion of a] decision in terms
adequate to allow [us] to conclude that the [IJ and BIA] thought
about the evidence and the issues and reached a reasoned
conclusion," which is what Raza contemplates. 484 F.3d at 128.
In view of the extraordinary-and-compelling-circumstances prong
being completely ignored, it plainly got none of this: zero
consideration, and nothing even approaching a "reasoned
conclusion." Perhaps the IJ wasn't required to provide detailed
analysis -- but here, there is no analysis whatsoever, never mind
detailed analysis.
And very much tied to this is my colleagues' decision to
infer a no-extraordinary-and-compelling-circumstances finding by
the IJ that fuels their overall conclusion on this issue.
The majority explains that it's permissible to infer
that the IJ found "that the presumption was not rebutted."
Pointing analogously to clear-error situations in the district
- 22 - court, the majority explains that when "specific findings are
lacking [from the lower court's order], we view the record in the
light most favorable to the ruling, drawing all reasonable
inferences in support of the challenged ruling," Owens, 167 F.3d
at 743, and this makes sense to do because, "in many situations,
the [lower] court's findings or reasons can be reasonably
inferred," Cotter, 219 F.3d at 34, despite an order's brevity.
But here's the thing: Sanabria's case represents the
proverbial apples, and Owens and Cotter, taken together, along
with any other case out of the district court, are oranges. Both
Owens and Cotter involved the clear-error review of a district
court order; Sanabria's case doesn't involve a clear-error review
of a district court's fact decision, it involves a review of agency
action, meaning the IJ and BIA needed to give some reasoned
explanation for the conclusions they reached.
Indeed, we review immigration agency decisions quite
differently than we do district court decisions: "we apply
'normal principles of administrative law governing the role of
courts of appeals when reviewing agency decisions for substantial
evidence.'" Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) ("The
need for clear administrative findings is implicit in the statute
under which we review the BIA's decision." (quoting Cordero-Trejo
v. INS, 40 F.3d 482, 487 (1st Cir. 1994))). And "[w]hile the IJ
need not address each and every piece of evidence put forth by a
- 23 - petitioner, he must at least 'make findings, implicitly if not
explicitly, on all grounds necessary for decision.'" Sok v.
Mukasey, 526 F.3d 48, 54 (1st Cir. 2008) (quoting Un v. Gonzales,
415 F.3d 205, 209 (1st Cir. 2005)). This court "'must judge the
propriety of [administrative] action solely by the grounds invoked
by the agency,' and 'that basis must be set forth with such clarity
as to be understandable.'" Gailius, 147 F.3d at 44 (citing SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)). "Typically, we have
found the absence of specific findings problematic in cases in
which such a void hampers our ability meaningfully to review the
issues raised on judicial review." Renaut v. Lynch, 791 F.3d 163,
169 (1st Cir. 2015) (quoting Rotinsulu v. Mukasey, 515 F.3d 68, 73
n.1 (1st Cir. 2008)).
A driving principle behind all this is that it ensures
"that a reviewing court is able to provide intelligent review on
issues over which it has appellate jurisdiction." Tillery v.
Lynch, 821 F.3d 182, 185 (1st Cir. 2016) (citations omitted); see
also Chenery Corp., 332 U.S. at 196–97 ("We must know what [an
agency] decision means before the duty becomes ours to say whether
it is right or wrong." (quoting United States v. Chicago, M., St.
P. & P.R. Co., 294 U.S. 499, 511 (1935))); Harrington v. Chao, 280
F.3d 50, 61 (1st Cir. 2002) (vacating and remanding "is a proper
remedy when an agency fails to explain its reasoning adequately.").
In Tillery, this court explained that the BIA's decision didn't
- 24 - "adequately explain its conclusion" -- it provided the legal
framework, but then stated only a cursory conclusion with no
explanation or legal reasoning. 821 F.3d at 185. And so, in
vacating and remanding, the Tillery court concluded that "[i]t is
within the agency's realm to elucidate its rationale, and the BIA's
failure to do so hinders meaningful judicial review in this case."
Id. at 186-87. Indeed, as we've said, "we will accept less than
ideal clarity in administrative findings," but "we ought not to
have to speculate as to the basis for an administrative agency's
conclusion." Renaut, 791 F.3d at 171 (cleaned up).
For me, all of this comes together quite forcefully here
not only to support my own point that the IJ and BIA dropped the
ball in ignoring the extraordinary-and-compelling-circumstances
part of the Matter of Y-L- test, providing no analysis or mention
of it at all, but also to underscore the flawed analogy the
majority strives to make using Owens and Cotter.
Moreover, totally aside from the fact that Owens and
Cotter are horses of completely different colors by virtue of not
resulting from agency action, Cotter involved an order in which
"the district judge ma[de] no findings and [gave] no reasons" at
all, Cotter, 219 F.3d at 34; here, the same can hardly be said for
the IJ and BIA in Sanabria's case because the decisions issued by
those agencies did offer findings and reasons, just not on the
extraordinary-and-compelling-circumstances exception to the test
- 25 - each purported to deploy. And remember, in Tillery, we vacated
when the BIA had identified the legal framework for its analysis
but then offered only a cursory conclusion, failing to provide any
reasoning from there -- here, the IJ and BIA provided the legal
framework, but then didn't even offer a cursory conclusion on the
issue as in Tillery, which the court there still deemed inadequate.
821 F.3d at 185.
And beyond that, in Owens, this court, under the "view
the record in the light most favorable to the ruling, drawing all
reasonable inferences in support of the challenged ruling"
standard, inferred enough facts to connect the dots that allowed
affirmance of the denial of a motion to suppress evidence. 167
F.3d at 747. Here, the majority is doing far more than inferring
some connective facts to support a conclusion: rather, a minimum-
showing six-part test went totally ignored by the IJ and BIA, and
the majority performed its own analysis of that test, made its own
findings, and reached its own conclusion.4 That's a far cry from
deferentially reviewing the matter and upholding a district
court's denial of a suppression motion because "it is supported by
4 And to the extent my colleagues in the majority would be content to conclude the IJ had "implicitly if not explicitly" made findings on the extraordinary-and-compelling-circumstances issue here, Sok, 526 F.3d at 54, I still cannot get on board -- as I just wrote, this was a minimum-showing six-part list of factors that got no mention by the IJ and BIA, and chalking the ignorance of that part of the test by both the IJ and BIA up to an implicit finding is not something this caselaw contemplates.
- 26 - any reasonable view of the evidence," Owens, 167 F.3d at 743, and
in a case like this, it is not permitted, see Makieh v. Holder,
572 F.3d 37, 41 (1st Cir. 2009) (instructing that "we should 'judge
the action of the BIA based only on reasoning provided by the
agency, not on grounds constructed by the reviewing court,'" and
"we will remand if the agency fails to state with sufficient
particularity . . . legally sufficient reasons for its decision"
(emphasis added) (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 21
(1st Cir. 2004))). See also Sagaydak v. Gonzales, 405 F.3d 1035,
1040 (9th Cir. 2005) (reasoning that IJs and the BIA are not free
to ignore arguments raised, and so the IJ erred by failing to
consider extraordinary circumstances proffered to excuse an
untimely asylum application).
Along these lines, the majority delves into a discussion
of what Sanabria's evidence and testimony did and did not
demonstrate. In my view, on the facts of this case and in line
with the caselaw I've laid out to this point, this simply goes too
far -- it clearly was the IJ's and BIA's responsibility to do this,
not ours. As everyone seems to agree, we don't have any findings
at all on those circumstances, and it's not our role to jump in
and supply them. Nevertheless, the majority runs through the six
Matter of Y-L- factors, determining this minimum showing was not
met and, as a result, "this record does not compel a conclusion
that Sanabria's conviction met each of these factors and
- 27 - demonstrated 'extraordinary and compelling circumstances.'" The
majority elaborates: "The six factors give content to the
"extraordinary and compelling circumstances" test, and we must
abide by them."
Again, this goes much too far. For starters, as I've
said, we, as appellate judges, aren't in the business of making
findings that we then use as a springboard to craft the legal
analysis that should have been conducted below. It is completely
backwards -- and circular, too -- for us to make our own findings
so as to reach our own legal conclusion on an element, then use
that conclusion to determine that the record doesn't compel a
conclusion contrary to the IJ's and BIA's when, by our own
analysis, the IJ's and BIA's conclusions were incomplete. In
other words, we've supplied the complete conclusion to fill the
IJ's and BIA's void below -- that Sanabria had not shown
extraordinary and compelling circumstances -- and we use that to
then say the record below doesn't compel a different conclusion
than the IJ's and BIA's (incomplete) conclusion. This is
nonsensical. And not for nothing, but why is it that we must
"abide by" these six factors that "give content to the
'extraordinary and compelling circumstances' test," but condone
the IJ and BIA ignoring both the complete test and the six factors
- 28 - altogether?5 All in all, this approach undertaken by the majority
is very troubling.
In the end, I'd remand. As I've said: the IJ and BIA
erred by not determining whether Sanabria has shown extraordinary
and compelling circumstances, it's not for us to say whether he
made that showing, and we certainly shouldn't be getting into the
business of inferring findings in a case like this. We cannot say
whether the record compels a contrary conclusion on this issue
unless the conclusion we're given in the first place is complete
and offered with the support of analytical reasoning. Remand is
not only the appropriate route, but it is critical to the proper
remedy because it would ensure that each of Sanabria's possible
avenues to relief has been fairly assessed.
5 My colleagues in the majority also take the time to point out that Sanabria represented himself in the proceedings below. But this only helps his cause. Not only does it support my earlier- indicated position that I'd explicitly find this argument exhausted and properly before us, see, e.g., Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008) (noting that, "as a general rule, we are solicitous of the obstacles that pro se litigants face," so we apply "less demanding standards" to pro se litigants), but also prompts me to point out that his pro se status does not in any way lessen the immigration agencies' obligations to enunciate the reasons for rejecting, or in this case ignoring, his sufficiently raised arguments.
- 29 -