Jorge Valarezo-Tirado v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1705
_____________
JORGE LUIS VALAREZO-TIRADO,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
________________
On Petition for Review of a Final Order of
the Immigration Court
(Agency No. A208-449-401)
Immigration Judge: Pallavi S. Shirole
________________
Argued on March 10, 2021
Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit
Judges
(Opinion filed: July 17, 2021)

Judge Smith was Chief Judge at the time this appeal was
argued. Judge Smith completed his term as Chief Judge and
assumed senior status on December 4, 2021.
Charles W. Stotter, Esquire
Carlton Fields, P.A.
180 Park Avenue, Suite 106
Florham Park, New Jersey 07932
Robert D. Helfand, Esquire (Argued)
Office of the Connecticut State Comptroller
Retirement Services Division
165 Capitol Avenue
Hartford, CT 06103
Counsel for Petitioner
Jeffrey Bossert Clark, Esquire
Anthony C. Payne, Esquire
Lance J. Lolley, Esquire (Argued)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
________________
OPINION OF THE COURT
________________
McKEE, Circuit Judge
Jorge Luis Valarezo-Tirado petitions this Court for
review of an Immigration Judge’s reinstatement of his prior
order of removal. The IJ affirmed a Department of Homeland
Security (DHS) asylum officer’s determination that Valarezo-
Tirado did not have a reasonable fear of torture as required
for relief under the Convention Against Torture (CAT) or a
reasonable fear of persecution as required for asylum and
withholding of removal. Valarezo-Tirado appeals the IJ’s
denial of his CAT claim. For the reasons that follow, we will
grant the petition for review and vacate the IJ’s decision and
order and remand for further proceedings.
2
I.
A. Factual Background and Procedural History
Jorge Luis Valarezo-Tirado, an Ecuadorian citizen,
entered the United States illegally in 2017. He was
subsequently detained by DHS, and in January 2020, DHS
reinstated a prior order of his removal.1 However, before he
was actually removed, DHS conducted a reasonable fear
interview in front of an asylum officer because Valarezo-
Tirado claimed a fear of persecution if he were returned to
Ecuador. That interview began on February 20, 2020. At the
start of the interview, Valarezo-Tirado was twice informed of
his right to postpone the interview for up to 48 hours to
procure an attorney. He was also provided with a list of pro
bono and low-cost attorneys who may be willing to represent
him. However, both times he was asked, he declined, and
decided to proceed with the interview that day without an
attorney.
Valarezo-Tirado told the asylum officer that in 2016
he had a dispute with a neighbor, Enrique Villa, in his
hometown of Pedro Vicente Maldonado, Ecuador. Valarezo-
Tirado sold Villa a load of lumber. When Valarezo-Tirado
went to collect payment, Villa refused to pay. Valarezo-
Tirado then went to the local police to file a report about
Villa’s refusal, but the police allegedly told Valarezo-Tirado
not to file a police report. According to Valarezo-Tirado,
“they told me not to do anything, that he will pay me; that I
should leave it alon[e] [and] that he will pay me.”2 Officers
also told Valarezo-Tirado that Villa was “involved in some
dark business.”3 Villa was allegedly known in the community
to have ties to drug trafficking.
1
DHS had previously detained Valarezo-Tirado and issued a
Form I-860 Determination of Inadmissibility and Order of
Removal on September 6, 2015. DHS removed Valarezo-
Tirado to Ecuador on October 23, 2015. The events giving
rise to this appeal occurred after Valarezo-Tirado’s removal
in 2015.
2
App. 26.
3
Id.3
Valarezo-Tirado told the asylum officer that, based on
the inaction of the local police, he believed Villa “ha[d] some
kind of friendship with the police and the police would have
told [Villa] that I came to file a report against him.”4
Accordingly, Valarezo-Tirado did not file a police report.
However, as Valarezo-Tirado later told the IJ, he returned to
Villa’s house to demand his money a second time. Rather
than paying Valarezo-Tirado, Villa threatened him with a
pistol: “he told me to leave things alone or something will
happen to my family or me.”5
Fearing for his and his family’s safety, Valarezo-
Tirado fled to the United States with his family. Valarezo-
Tirado told the asylum officer that since he fled his
hometown, he “heard [Villa] was in jail one time, that he had
[a] problem with the police.”6 Valarezo-Tirado clarified that
he believed that the state or provincial police had detained
Villa. He told the asylum interviewer that the state and
provincial police were separate forces than the local police
who previously discouraged him from filing a police report.
The DHS asylum officer found that Valarezo-Tirado
was “credible,” meaning that his testimony was “consistent,
detailed, and plausible,”7 but that he did not establish a
reasonable fear of persecution or torture if removed to
Ecuador. As to past torture, the asylum officer concluded
“[t]he limited harm experienced by the applicant (verbal
threats of unspecified harm) does not rise to the level of
severe physical or mental pain required to constitute torture.”8
And “[t]he incident did not cause the applicant any physical
harm and there is no indication that the applicant experienced
any prolonged mental suffering from the experience.”9
As to the threat of future torture, the asylum officer
found that Valarezo-Tirado “failed to provide specific and
persuasive facts that a public official such as a corrupt police
4
Id.5
Id. at 24.
6
Id. at 25.
7
Id. at 29.
8
Id. at 31.
9
Id.
4
officer would specifically intend to inflict on him severe
harm.”10 The officer also concluded that Valarezo-Tirado
“failed to provide specific and persuasive evidence to
establish a reasonable possibility that a public official would
consent or acquiesce to his future harm by Mr. Villa.”11
Valarezo-Tirado appealed the DHS asylum officer’s
negative reasonable fear determination to an IJ. At the
beginning of the hearing before the IJ, the IJ had the
following exchange with Valarezo-Tirado about his right to
counsel:
IJ: You do have the right to be represented in this
hearing by an attorney but at no expense to the
Government. You previously received a packet
that listed your rights in these proceeding[s].
You also received a list of attorneys and
organizations that might be willing to represent
you at little or no cost. Do you remember getting
that list?
Valarezo-Tirado: Yes.
IJ: Okay. You don’t have an attorney here with
you today but because these are expedited
proceedings, I can’t give you any more time to
find an attorney. All right. Sir, have you
understood everything that I’ve explained to you
today?
Valarezo-Tirado: Yes.12
The IJ then summarized Valarezo-Tirado’s prior
testimony from the reasonable fear interview and allowed him
to expand on why he felt he could not report Villa to the
police. Valarezo-Tirado stated that he was afraid that Villa
had friends in the police department, and therefore did not file
a police report. The IJ concluded that she understood that
Valarezo-Tirado was afraid to return, “but the problem is that
10
Id.
11
Id.
12
Id. at 6–7.
5
in order . . . for you to be able to seek relief in this country
you have to fear persecution on account of a protected
ground.”13 She found “[t]he situation that you are facing
seems to be more of a personal matter. Because of that, sir, I
do not find that you’ve established a reasonable possibility
that you would be persecuted on account of one of these
protected grounds.”14 The IJ also stated that she “concur[red]
in [DHS’] reasonable fear determination.”15 Her written
opinion stated, in its entirety: “R not targeted on account of
protected ground. Government is willing to assist.”16
Valarezo-Tirado now petitions for review.17
II.
Valarezo-Tirado raises the following three arguments
on appeal: (i) the IJ’s conclusion that he did not have a
reasonable fear of torture was not supported by reasonable,
substantial, and probative evidence on the record as a whole;
(ii) the IJ violated his due process rights by failing to
“develop his testimony” as to his fear of torture if returned;
and (iii) the IJ violated his right to counsel.
13
Id. at 11.
14
Id.
15
Id.
16
Id. at 1.
17
Because Valarezo-Tirado was subject to a reinstated order
of removal, DHS had exclusive jurisdiction to consider
Valarezo-Tirado’s reasonable fear claim under 8 C.F.R. §
208.31(a) in the first instance. The IJ had jurisdiction to
review DHS’ negative reasonable fear determination under 8
C.F.R. §§ 208.31(a), (g). Where an “IJ concurs with the
asylum officer’s decision that the applicant did not establish a
reasonable fear of persecution or torture, . . . ‘[n]o appeal
shall lie from the [IJ]’s decision.’” Bonilla v. Sessions, 891
F.3d 87, 90 n.4 (3d Cir. 2018) (quoting 8 C.F.R. §
208.31(g)(1)). An IJ’s decision concurring with an asylum
officer’s negative reasonable fear determination is, therefore,
a final order of removal. Id. We have jurisdiction to review
final orders of removal under 8 U.S.C. § 1252. See also id.6
A.
In order to obtain relief under the CAT, Valarezo-
Tirado must show “that it is more likely than not that he
would be tortured upon return to his country”18 and that the
torture would occur “by, or at the instigation of, or with the
consent or acquiescence of, a public official . . . or other
person acting in an official capacity.”19 “Acquiescence of a
public official requires that the public official, prior to the
activity constituting torture, have awareness of such activity
and thereafter breach his or her legal responsibility to
intervene to prevent such activity.”20 It is the IJ’s
responsibility in the first instance to decide if Valarezo-
Tirado has demonstrated eligibility for CAT relief.21 We
review an IJ’s findings of fact under an “‘extraordinarily
deferential standard’ [and] we uphold the IJ’s findings if they
are ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’”22
Given the IJ’s less-than-terse explanation of her denial
of CAT relief, it becomes necessary to again stress that “the
availability of judicial review . . . necessarily contemplates
something for us to review.”23 This means that an IJ (or the
BIA) must explain a decision “with such clarity as to be
understandable.”24 And “[a]lthough we ask, in evaluating
whether an agency determination is supported by substantial
evidence, ‘whether a reasonable fact finder could make such a
determination based upon the administrative record,’ we will
not supply the basis for its decision where appropriate
18
Saravia v. Att’y Gen., 905 F.3d 729, 735 (3d Cir. 2018)
(internal citation omitted).
19
8 C.F.R. § 1208.18(a)(1).
20
Id. § 1208.18(a)(7).
21
8 U.S.C. § 1231(b)(3)(C) (The trier of fact, the IJ, “shall
determine whether the [noncitizen] has sustained the
[noncitizen’s] burden of proof.”).
22
Romero v. Att’y Gen., 972 F.3d 334, 340 (3d Cir. 2020)
(quoting Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir.
2011)).
23
Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001).
24
Wang v. Att’y Gen., 423 F.3d 260, 270 (3d Cir. 2005)
(quoting SEC v. Chenery Corp., 332 U.S. 194, 241 (1947)).
7
reasons are not set forth by the [IJ] itself.”25 Given the bullet
point-like checklist that purported to explain the IJ’s decision
here, we stress that, “[w]here the administrative decision fails
to consider or mention evidence that is on its face relevant
and persuasive, the proper course is to remand for further
consideration by the IJ.”26
Valarezo-Tirado alleges that the IJ’s conclusion that he
does not have a reasonable fear of torture if returned to
Ecuador is not supported by substantial evidence. We agree.
The entirety of the IJ’s written decision rejecting his claim
states: “R not targeted on account of protected ground.
Government is willing to assist.”27 With nothing more than
that bare conclusion—“[g]overnment is willing to assist”—
we have no way of determining what evidence, if any, the IJ
relied upon. “An IJ must support her factual determinations
with ‘specific, cogent’ reasons such that her conclusions
‘flow in a reasoned way from the evidence of record.’”28
Failure to provide such support “does not pass muster under
the substantial evidence rubric.”29
Valarezo-Tirado argues not only that there is no
evidence in the record to support the IJ’s conclusion; he
claims that the record evidence supports the opposite
conclusion. He believes this record supports the conclusion
that the police were unwilling or unable to assist. He points to
his testimony before the asylum officer and before the IJ. He
testified that the police told him not to file an official police
report because Villa was into “some dark business.”30 He told
the IJ: “when I went to report [Villa], they, the police [told]
me, don’t, don’t do it.”31 The government, on the other hand,
points to Valarezo-Tirado’s testimony before the asylum
officer in which he stated that, at one point after Valarezo-
25
Id. at 271 (citing Chenery Corp., 332 U.S. at 249)
(emphasis added).
26
Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007).
27
App. 1.
28
Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006)
(citing Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003)).
29
Id. (citing Dia, 353 F.3d at 254).
30
App. 9.
31
Id.8
Tirado fled his hometown, he heard that the provincial police
had detained Villa.
Therein lies the problem. 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.”32 “[W]e cannot give meaningful review
to a decision in which [an IJ] does not explain how it came to
its conclusion.”33 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,”34 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.35 The basis
for the IJ’s decision “can and should be addressed explicitly
by the [IJ] upon remand.”36
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.”37
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. We have
taken pains to note that the large number of cases on IJs’ and
the BIA’s dockets “impose[] practical limitations on the
length of the [IJ’s and] BIA’s written opinions.”38 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
32
Abdulai, 239 F.3d at 555.
33
Awolesi v. Ashcroft, 341 F.3d 227, 229 (3d Cir. 2003).
34
Pet’r’s Reply Br. at 15–16.
35
Voci v. Gonzales, 409 F.3d 607, 617 (3d Cir. 2005).
36
Id.37
Awolesi, 341 F.3d at 229.
38
Voci, 409 F.3d at 613 n.3.
9
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.”39 The
required review is simply not possible here when we are
provided with nothing more than the kind of one-line
checklist that is being relied upon. 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.”40
B.
Valarezo-Tirado also argues that the IJ had a duty to
develop his testimony about government acquiescence to
torture because that troubled the IJ and was dispositive in her
denial of his claim. He supports this argument by citing to our
line of cases requiring IJs to provide notice to a noncitizen
before denying his or her claim for a lack of corroboration. In
Toure, for example, we stated that the IJ “has a duty to
develop [the noncitizen’s] testimony, especially regarding an
issue that she may find dispositive, and . . . must adequately
explain the reasons for [her] decisions.”41 The IJ must also
“give the [noncitizen] notice of what corroboration will be
expected and an opportunity to present an explanation if the
[noncitizen] cannot produce such corroboration.”42 This “rule
derives principally from the fact that we cannot have
meaningful judicial review without giving the applicant
notice and an opportunity to corroborate.”43
39
Dia, 353 F.3d at 268 (Stapleton, J., dissenting) (citing
Chenery Corp., 332 U.S. at 196–97).
40
Abdulai, 239 F.3d at 555.
41
443 F.3d at 325 (internal citation omitted).
42
Chukwu, 484 F.3d at 192.
43
Saravia, 905 F.3d at 738.
10
As we have already discussed, however, the IJ did not
adequately explain the reasons for her decision.
Consequently, we cannot determine if the IJ erroneously
relied on a lack of corroborating evidence. On remand,
therefore, to the extent that the IJ concludes Valarezo-Tirado
must come forth with corroborating evidence, she must
reopen the proceedings, inform him of the evidence that
requires corroboration, and must give him an opportunity to
furnish such information or provide an explanation for its
absence.44
C.
Finally, Valarezo-Tirado argues that he was denied his
right to counsel and therefore requires a new hearing at which
counsel will be present. We cannot agree with that claim.
“[A]lthough the Fifth Amendment does not mandate
government-appointed counsel for [noncitizens] at removal
proceedings, it indisputably affords [a noncitizen] the right to
counsel of his or her own choice at his or her own
expense.”45 In removal proceedings, the right to counsel
imposes certain obligations on the IJ. She must “[a]dvise the
[noncitizen] of his or her right to representation, at no
expense to the government, by counsel of his or her own
choice . . . and require the [noncitizen] to state then and there
whether he or she desires representation.”46 She must also
“[a]dvise the [noncitizen] of the availability of pro bono legal
services for the immigration court location at which the
hearing will take place, and ascertain that the [noncitizen] has
received a list of such pro bono legal services providers.”47 If
an IJ fails to do so, the noncitizen is entitled to a new hearing
without a showing of prejudice.48
44
See id. (An IJ must provide the petitioner with “notice [of
the facts requiring corroboration and] an opportunity to
provide corroborating evidence or explain its
unavailability.”).
45
Leslie v. Att’y Gen., 611 F.3d 171, 181 (3d Cir. 2010).
46
Bonilla, 891 F.3d at 91–92 (quoting 8 C.F.R. §
1240.10(a)(1)–(2)).
47
Id. at 92 (quoting 8 C.F.R. § 1240.10(a)(1)–(2)).
48
See Leslie, 611 F.3d at 180.
11
Valarezo-Tirado argues that because there is a right to
counsel in removal proceedings, that same right should be
recognized in reviews of reasonable fear determinations. We
have recognized, however, that the reasonable fear interview
process differs from removal proceedings and, concomitantly,
so do the protections offered to noncitizens in either process.
In Bonilla, we recognized this difference and denied a
claim similar to the one Valarezo-Tirado now brings. That
case is instructive. There, petitioner Sorto Bonilla was
similarly subject to a reinstated removal order but expressed a
fear of returning to his home country.49 He appeared before
the asylum officer with counsel but was unsuccessful. He
appealed the asylum officer’s negative decision to an IJ.50
However, Sorto Bonilla appeared before the IJ without
counsel.51 The IJ agreed with the asylum officer’s negative
reasonable fear determination and ordered Sorto Bonilla
removed. Sorto Bonilla then petitioned for review in this
Court arguing that he was denied his right to counsel.52
We recognized that the regulations governing reviews
of reasonable fear determinations “state that [a noncitizen]
‘may be represented by counsel’ at the screening process’
first step—the interview with the asylum officer”—but found
that “the regulations are silent as to whether [a noncitizen]
may have counsel present at the second step of the screening
process before the IJ.”53 We concluded that Sorto Bonilla had
“not shown that the regulations explicitly invested him with a
right to counsel at the IJ’s review hearing, and we need not
reach the question [] whether he otherwise has such a right . .
. because Sorto Bonilla ‘was not denied the opportunity to
obtain the counsel of his choice.’”54 The same result obtains
here.
49
891 F.3d at 89.
50
Id.
51
Id. at 90.
52
Id.
53
Id. (quoting 8 C.F.R. § 208.31(c), (g)).
54
Id. (quoting Ponce-Leiva v. Ashcroft, 331 F.3d 369, 376 (3d
Cir. 2003)).
12
Valarezo-Tirado cannot show that he was denied the
opportunity to obtain counsel. Valarezo-Tirado was
specifically asked if he wished to stop the proceedings to
obtain counsel at his reasonable fear interview. In fact, as
quoted above, the hearing officer gave him that opportunity
twice and also offered a list of pro bono and low-cost lawyers
whom he could consult if he wished to briefly postpone the
hearing. He declined and stated that he wanted to proceed
with the interview that day.
His claim regarding the hearing before the IJ fares no
better. Valarezo-Tirado “was notified that the IJ may allow
him to be represented at the proceeding and instructed that his
counsel should be present if he wished to be represented,”55
but Valarezo-Tirado appeared at the hearing without counsel.
At the beginning of the hearing, the IJ asked Valarezo-Tirado
if he had received information at his reasonable fear interview
about his ability to have a lawyer for the hearing before the IJ.
He affirmed that he had. Also, as in Bonilla, “the IJ noted that
[Valarezo-Tirado] did not have counsel present, further
reflecting that the IJ was cognizant of the value of legal
counsel and did not deprive him of it.”56 Valarezo-Tirado
neither objected nor asked for a lawyer during the hearing
before the IJ. Accordingly, he has not shown that he was
denied counsel before the IJ.
III.
We realize, and “readily acknowledge that an IJ’s
position is an impossibly demanding and challenging one.”57
We have already commented on this above. Moreover, we
recognized in 2011 that “IJs [were] confronted with an
exponential growth in their caseloads,” noting that the
average immigration judge handled over 1500 cases in a
year.58 And the volume continues to increase.
55
Id. at 92.
56
Id.
57
Abulashvili v. Att’y Gen., 663 F.3d 197, 208 (3d Cir. 2011).
58
Id. at 208 & n.10.
13
A 2019 study found that “on average each
[immigration] judge currently has an active pending caseload
of over two thousand cases.”59 Nevertheless, we cannot allow
incredibly difficult logistics to give license to IJs to skirt their
responsibilities. This includes the obligation to inform the
petitioner of the reasons for the IJ’s decision and provide an
adequate explanation of the decision that does not require us
to parse through the testimony in search of evidence that
supports it. A two-sentence recitation on a bullet-point form
typically will not provide sufficient reasoning for a decision.
A decision, such as the one here, where the factual basis is
not stated and cannot be readily ascertained, will never
suffice. Because, here, the IJ’s decision was not supported by
substantial evidence, we will vacate the decision and order
and remand to the IJ for proceedings consistent with this
opinion.
59
Crushing Immigration Judge Caseloads and Lengthening
Hearing Wait Times, TRAC Immigration (Oct. 25, 2019),
https://trac.syr.edu/immigration/reports/579/.
14