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BIA must interpret, clarify its precedent

Where the government and an applicant for cancellation of removal disputed whether a prior decision of the Board of Immigration Appeals, or BIA, required remand in this case, and that prior decision was unclear on the basis for the remand, this case was remanded to the BIA to interpret its precedent and then address the applicant’s argument in the first instance.

Background

On March 13, 2020, the immigration judge, or IJ, issued a written decision denying Rodolfo Josue Tinoco Acevedo’s application for cancellation of removal. Tinoco Acevedo appealed to the Board of Immigration Appeals, or BIA, and, among other things, argued that his case should be remanded to a new IJ because the initial IJ failed to meet the high standard expected under Matter of Y-S-L-C-. The BIA affirmed the IJ’s decision. 

Jurisdiction

The court lacks jurisdiction to review final orders of removal against noncitizens who are “removable by reason of having committed a criminal offense covered in 1182(a)(2).” It also lacks jurisdiction to review the denial of a discretionary form of relief such as cancellation of removal. But it retains jurisdiction over constitutional claims and questions of law. Because Tinoco Acevedo has raised both such challenges here, the court has jurisdiction to consider his petition for review.

Tinoco Acevedo must also have exhausted all available administrative remedies. Tinoco Acevedo presented the BIA with two general issues. One was that the BIA should remand the record to a different IJ because the initial IJ’s conduct failed to meet “the high standards expected of [IJs,]” and suggested that the IJ could not serve as an impartial decisionmaker. In support of this challenge, Tinoco Acevedo began his argument by citing to Matter of Y-S-L-C-. The court thus finds that Tinoco Acevedo sufficiently exhausted his claim that this case should be remanded to a new IJ under Matter of Y-S-L-C-.

Merits

In Matter of Y-S-L-C-, the BIA vacated and remanded the IJ’s decision after determining that it could not “condone the [IJ’s] treatment of the respondent through this questioning.” Under Tinoco Acevedo’s interpretation of Matter of Y-S-L-C-, a noncitizen in removal proceedings is entitled to a new hearing before a new IJ when the initial IJ fails to conduct the initial hearing “in a manner that meets the high standards expected of [IJs].”

The government understands the BIA’s decision to remand in Matter of Y-S-L-C- as contingent upon a finding that the IJ’s behavior violated the applicant’s right to due process. However the government’s analysis glosses over one key point: the BIA in Matter of Y-S-L-C- never definitively concluded that—or fully analyzed whether— the IJ’s actions constituted a due process violation. The BIA in Matter of Y-S-L-C- never specified that its decision to remand was tethered to a finding that the IJ’s conduct violated the applicant’s right to due process. The court declines to adopt such an interpretation now.

That being said, the BIA in Matter of Y-S-L-C- emphasized both that applicants are entitled to a full and fair hearing as a matter of due process and that an IJ’s hostile behavior toward an applicant could be found to constitute a due process violation. But rather than apply that analysis to explain how the IJ’s behavior did in fact prejudice the applicant—and therefore violated his right to due process—the BIA simply concluded that the “hearing was not conducted in a manner that meets the high standards expected of [IJs].”

The court notes that the BIA in Matter of Y-S-L-C- included citations to due process cases when discussing the IJ’s conduct. But these citations alone cannot replace a clear statement finding that the IJ violated the applicant’s right to due process, nor do they explain the absence of the prejudice analysis. And while the government is correct that no circuit court has yet interpreted Matter of Y-S-L-C- as entitling a noncitizen to a new hearing outside the due process context, the three circuits that have addressed Matter of Y-S-L-C- have only done so by citing to the case without analysis.

Rather than opine as to the exact grounds on which the BIA decided that the applicant was entitled to a new hearing before a new IJ in Matter of Y-S-L-C-, the court remands for the BIA to interpret its precedent and address Tinoco Acevedo’s argument in the first instance.

Petition for review granted. Vacated and remanded.

Tinoco Acevedo v. Garland, Case No. 20-2048, Aug. 11, 2022. 4th Cir. (Gregory), from Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner. Kathleen Kelly Volkert for Respondent. VLW 022-2-201. 167 pp.

VLW 022-2-201

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