The petitioner, a Mexican citizen, was brought to the U.S. in 1977, when he was ten years old, and became a permanent resident but never applied for citizenship. He was convicted on a charge of indecent solicitation of a minor, a felony, lost his permanent resident status and was ordered to be removed to Mexico. He argued that as an openly gay HIV-positive man, he faced a risk of persecution or torture if deported to Mexico, and sought withholding of removal and protection under the Convention Against Torture (CAT). He persuaded the IJ, who granted both withholding relief under the statute and under the CAT, only to be reversed by the BIA. On remand, the IJ “adhered to his position,” but the BIA stubbornly adhered to its position, again reversing the IJ, and petitioner sought relief from the court of appeals.
The most recent BIA decision said that “the probability of future harm is a legal question that we review de novo” and “in assessing the probability of harm de novo, we may give different weight to the evidence than did the Immigration Judge.” The BIA accepted the IJ’s findings of “historical fact” but “disagreed with the IJ about the risk implied by those facts.” Most particularly, the IJ was convinced by expert testimony about murders of gay men in Mexico that there would be a substantial risk to the petitioner if he were deported. But the BIA looked at the same statistics and drew a different conclusion. The IJ was impressed that there were 148 documented hate crime murders of gays in Mexico between 1995 and 2006. The BIA looked at that number, did its own calculations, and concluded that this meant that it was “unlikely (a risk of no more than 1 in 100,000) that any given gay man would be killed in any given year.” Thus, the IJ’s conclusion that anti-gay murders were “frequent” did not impress the BIA, which found that petitioner failed to meet the burden of showing that there was a “clear probability” that he would be murdered if returned to Mexico.
Wrote Easterbrook, “The Board treated the risk of future harm” – which is a dispositive issue in this kind of case – “as a matter of legislative fact, and it took the view that decisions on mixed (or ‘ultimate’) questions are open to plenary decision” on review. The court agreed with the petitioner that “the Board made a legal error by engaging in this kind of review, pointing particularly to a regulation, 8 C.F.R. Sec. 1003.1(d)(3), that provides that “The Board will not engage in de novo review of findings of fact determined by an immigration judge,” which would include “findings as to credibility of testimony” which would be subject to a “clearly erroneous” standard for reversals. In this case, the BIA did not reject the IJ’s findings of fact, but took the position that the determination of whether petitioner would incur a probability of persecution was not the kind of factual finding to which it need defer.
Easterbrook noted that there is a split of authority among the circuit appeals courts about how to review such BIA decisions, and the 7th Circuit panel favored the authority represented by a 3rd Circuit decision, Kaplun v. Attorney General, 602 F.3d 260 (2010), holding that “the Board is entitled to adopt an independent view about whether a potential harm identified by an IJ amounts to ‘persecution’ or ‘torture,’ but that an IJ’s predictions (which it called the ‘present probability of a future event’) – such that a particular harm is ‘likely’ should an alien return to his native land – are ‘facts’ under clause (i) [of the regulation], and the Board’s role is limited to identifying clear error by the IJ.”
The question here, as Easterbrook puts it, is whether predictions about the probability of persecution depend primarily on country conditions, “not (necessarily) on facts unique to the alien.” If country conditions are the most important concern, there would be much less reason to defer to findings of historical fact concerning the alien in question in reaching a sound judgment about such probability. Easterbrook points to the concern that different IJs might reach sharply different conclusions about the probability that a gay man deported to a particular country would be subjected to persecution there, but notes the potential salience of historical facts, regardless of the overall country conditions. In this case, the petitioner contends that “he is at greater risk” than other gay men. “He is not only gay and HIV positive but also ‘out’ and planning to live openly with his partner. He contends, and the IJ found, that his family has disowned him and will not offer any support. He adds that, because he has lived in the United States most of his life and does not know contemporary Mexican customs, he will find it hard to avoid attracting attention from persons who might do him harm. And he stresses that injuries (and deprivation of economic opportunities) short of death may amount to persecution.”
The court decided that “the question for the Board on remand is thus not whether aggregate data imply that Rosiles-Camerana is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted.” That is not a question for the court to decide, but “for the Board in the first instance.” However, the court’s summary of the petitioner’s argument makes it sound like a strong claim for individualistic fact-finding. The court’s powers of review are limited by statute in light of the petitioner’s conviction of a felony, which leaves a large range of discretion to the Board. On the other hand, the regulation governing the Board’s appellate authority constrains it substantially in second-guessing IJ fact-finding, as this decision shows.