United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2455
___________
Rolando Hernandez, *
*
Petitioner, *
*
v. * On Petition for Review of an
* Order of the Board of
* Immigration Appeals.
1
Eric H. Holder, Jr., Attorney General *
of the United States of America, *
*
Respondent. *
___________
Submitted: March 10, 2009
Filed: September 1, 2009
___________
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Rolando Hernandez, a native and citizen of Guatemala, petitions for review of
a decision of the Board of Immigration Appeals (BIA), denying his application for
asylum, withholding of removal, protection under the Convention Against Torture
(CAT), and asylum on humanitarian grounds (“humanitarian asylum”), as well as his
request to administratively close or continue his case. We deny the petition in part,
grant the petition in part, and remand for further proceedings.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is automatically submitted for Michael B. Mukasey as Respondent.
I.
Rolando Hernandez was born in Quezaltenango, Guatemala, on August 20,
1965. Hernandez entered the United States without inspection on September 5, 1992,
after fleeing Guatemala to escape from the Organization for People in Arms (ORPA),
which had forced him into its service. In May 1993, the Immigration and
Naturalization Service (INS)2 issued an order to show cause against Hernandez,
alleging that he was deportable for having entered the United States without
inspection under former section 241(a)(1)(B) of the Immigration & Nationality Act
(INA), 8 U.S.C. § 1231(a)(1)(B).3 Hernandez conceded deportability but applied for
asylum under section 208 of the INA, 8 U.S.C. § 1158(a), and withholding of
deportation pursuant to former section 243(h) of the INA.4 He contended that he was
unable to return to Guatemala where he faced persecution by ORPA members because
of his public opposition to ORPA.
In June 1994, Hernandez had an individual merits hearing before Immigration
Judge Cuevas (“IJ Cuevas”). Hernandez testified through a translator. IJ Cuevas
found that Hernandez credibly established that he had been forcibly recruited into
ORPA by coercion and misrepresentations, that he had not supported the guerrillas,
and that, as soon as he became aware of their goals, he informed the leaders of his
disagreement with them and attempted to leave the group. IJ Cuevas concluded that
Hernandez was entitled to asylum because: (1) his credible testimony established a
2
The INS was abolished and its functions assumed by the Department of
Homeland Security (DHS) on March 1, 2003.
3
Deportation proceedings were commenced in Hernandez’s case prior to April
1, 1997, the effective date of the Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (IIRIRA) which repealed and renumbered portions of the
INA.
4
Post-IIRIRA, withholding of deportation is codified at INA § 241(b)(3), 8
U.S.C. § 1231(b)(3).
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well-founded fear of persecution by leaders of ORPA, who knew that he had deserted
ORPA after announcing his opposition to the group, and (2) Hernandez had
established that it would be more likely than not that he would be persecuted if he
returned to Guatemala. IJ Cuevas then granted Hernandez’s application for asylum
and withholding of deportation.
The INS appealed. In October 2000, the BIA held that Hernandez was
statutorily ineligible for asylum and withholding of deportation pursuant to the so-
called “persecutor bar,” under which any person who has “assisted or otherwise
participated in” persecution of any person on account of a protected ground is
ineligible for asylum and withholding of removal. See 8 U.S.C. § 1101(a)(42)
(ineligible for asylum); id. § 1231(b)(3)(B)(i) (ineligible for withholding of removal).
Therefore, the BIA ordered Hernandez deported as statutorily ineligible for relief from
deportation. The BIA did not overturn the credibility findings of IJ Cuevas and did
not reach the issue of whether, absent the persecutor bar, Hernandez was otherwise
entitled to asylum.
Hernandez petitioned this court for review, asserting that the BIA applied an
incorrect legal standard in determining that he had not met his burden of proving that
the persecutor bar did not apply. This court agreed and vacated the BIA’s order,
remanding “for its full consideration of the issue of eligibility for the type of relief
requested by Hernandez.” Hernandez v. Reno, 258 F.3d 806, 813, 815 (8th Cir.
2001).
On remand, the BIA held that Hernandez was not ineligible for asylum under
the “persecutor bar.” However, the BIA observed, “[T]hese events transpired 10 years
ago, in 1992. It is not clear on the record whether the guerillas would still be
interested in the respondent. Further, in 1996, the parties to the Guatemalan civil war
signed peace accords.” (App. 29.) Therefore, the BIA determined that “in light of the
passage of time and the changed circumstances in Guatemala, . . . the best course at
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this point is a remand to the Immigration Judge for a further hearing on the
respondent’s application for asylum.” (Id.)
On remand from the BIA, Hernandez’s case was assigned to Immigration Judge
Dierkes (“IJ Dierkes”). IJ Dierkes presided over Hernandez’s preliminary hearing on
October 29, 2002. At the hearing, Hernandez objected to the substitution of IJ Dierkes
and requested that IJ Cuevas’s 1994 order granting Hernandez asylum be reinstated.
Although he did not use the term “nunc pro tunc” at the hearing,5 Hernandez
characterizes this as a request for a grant of asylum nunc pro tunc. IJ Dierkes denied
the request.
On November 22, 2002, Hernandez filed a motion, requesting that IJ Cuevas
handle the remand of his case. IJ Dierkes presided at the next preliminary hearing
held on January 21, 2003, and stated that he had forwarded the motion to the Office
of the Chief Immigration Judge in Washington, D.C. Following the hearing, IJ
Dierkes issued an order denying the motion. The order stated:
5
“Nunc pro tunc, a Latin phrase meaning ‘now for then,’ refers to the power of
a court to treat something done now–typically a court order–as effective as of an
earlier date. . . . Nunc pro tunc relief is often granted where a court has itself made an
error such as failing to sign an order on an intended date, which it rectifies by labeling
the order ‘nunc pro tunc’ and making it effective as of the earlier date.”
Gutierrez-Castillo v. Holder, 568 F.3d 256, 261-62 (1st Cir. 2009). In the
immigration context, “the INA does not explicitly confer the power to issue nunc pro
tunc orders on the BIA, [but] the BIA has interpreted the INA to implicitly confer
such power.” Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); see Edwards v.
INS, 393 F.3d 299, 308 (2d Cir. 2004) (“The equitable remedy of nunc pro tunc
(literally ‘now for then’) relief has a long and distinguished history in the field of
immigration law. For more than sixty years, the Attorney General and the Board of
Immigration Appeals have recognized its importance in mitigating potentially harsh
results of the immigration laws.”).
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Judge Cuevas was on detail when he heard this matter in 1994. He no
longer comes to Minnesota on detail. This case was assigned to me
when it was remanded from the BIA. I have discussed the Respondent’s
motion with Assistant Chief Immigration Judge Michael Rahill, and he
has advised me that Judge Cuevas will not be coming to Minnesota for
further details. Accordingly, Judge Cuevas is considered “unavailable”
within the meaning of 8 CFR 240.1(b). The case will remain on my
docket.
(Id. at 57.)
As an alternative to his asylum application, Hernandez filed an application for
both suspension of deportation and cancellation of removal. On November 15, 2006,
Hernandez filed a motion for administrative closure and, in the alternative, a
continuance for purposes of repapering.6 The motion provides: “Respondent once
again respectfully restates his position that this Court has independent authority,
should it deny and/or pretermit Respondent’s I-589 and Suspension applications, to
postpone these proceedings for good cause while the proposed repapering rules are
6
“‘Repapering’ is the process by which the Attorney General may terminate
prior exclusion proceedings and instead initiate new removal proceedings. This
process allows aliens previously in exclusion proceedings to apply for cancellation of
removal, which would have otherwise been unavailable prior to the effective date of
IIRIRA.” Ming-Hui Wu v. Holder, 567 F.3d 888, 890 n.4 (7th Cir. 2009) (citation
omitted).
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finalized.”7 (App. 97.) The motion references a June 26, 2006, telephone
conversation between IJ Dierkes and DHS counsel.8 (Id. at 97-98.) The motion
further states:
[W]ith respect to the asylum application, we continue to insist that this
Court has ample basis for granting it, including on an equitable nunc pro
tunc basis given the extraordinary circumstances of the case and the
manifest injustice that denial would cause Respondent and his family.
As we have observed before, Mr. Hernandez could easily have been a
U.S. citizen by now but for the errors and delays caused by the
government in this case. See e.g. Edwards v. INS, 393 F.3d 299 (2d Cir.
2004).
(App. 97.)
On January 10, 2007, IJ Dierkes conducted Hernandez’s individual merits
hearing. IJ Dierkes asked DHS’s counsel to respond to the motion for administrative
closure and, alternatively, a continuance. DHS counsel responded,
[T]he government is not willing to agree to administrative closure, that’s
simply an attempt to indefinitely continue the proceedings and in light
of the lack of any re-papering regulations and frankly, being the same
7
On November 30, 2000, the INS and the Executive Office of Immigration
Review promulgated a proposed rule that allows aliens to apply for repapering. 65
Fed. Reg. 71,273 (proposed Nov. 30, 2000) (to be codified at 8 C.F.R. § 240.3). To
date, the repapering regulation has not been finalized.
8
On June 26, 2006, IJ Dierkes attempted to hold a teleconference with DHS
counsel and Hernandez’s counsel. Hernandez’s counsel was unavailable. IJ Dierkes
had a conversation with DHS counsel, a portion of which was recorded on
Hernandez’s counsel’s voice mail. Hernandez’s counsel attached a transcript of the
recording to the motion seeking administrative closure and, alternatively, a
continuance for purposes of repapering. (App. 98.)
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status as it has many years, the Government seeks the Court to fulfill its
duty and [go] forward with the adjudication of the case.
(App. 253.) IJ Dierkes rendered an oral decision at the hearing, denying Hernandez’s
applications for asylum and related relief because . . . there ha[ve] been
major changes in your country since you were there. . . . My ruling in
your case is in no way a negative reflection on you in any way. It’s just
that I think the situation in Guatemala has changed since you were there.
So I don’t want you to think that this is a matter of I don’t find you a
credible person. I found your testimony to be generally credible.
Sometimes these cases are overtaken by events.
(Id. at 256.) IJ Dierkes denied Hernandez’s alternative motions for administrative
closure and a continuance, observing that “the Court does not believe that it has
authority to administratively close this case on its own, without the consent of both
parties.” (Id. at 6.) IJ Dierkes further stated:
[T]he Court would reiterate that it does not believe that it has authority
on its own to administratively close this case for re-papering. The
proposed regulation makes it clear that it is entirely within the discretion
and authority of the Immigration Service to determine whether or not re-
papering should take place. The Government has consistently refused to
agree to administrative closure in this case, which reflects in my opinion
the attitude of the Department of Homeland Security towards whether or
not it should grant the discretionary relief of re-papering to this
respondent. . . . [T]his Court cannot on its own go ahead and
administratively close the case.
(Id. at 23-24.) IJ Dierkes did not separately address the request for a continuance
which was also premised on the finalization of the repapering regulations.
With regard to whether circumstances in Guatemala had changed since
Hernandez was granted asylum, IJ Dierkes stated:
-7-
[T]he Court believes that there have just been too significant changes in
Guatemala to allow the Court to find that this respondent still has a well-
founded fear of returning there. For these reasons, the Court will deny
the respondent’s application for asylum and withholding of deportation.
No evidence has been offered that the government of Guatemala or those
acting with the consent or acquiescence of the government would have
any reason to harm the respondent. Accordingly, the Torture Convention
claim [is] denied.
(Id. at 26.) IJ Dierkes also denied Hernandez’s application for suspension of
deportation. Finally, IJ Dierkes ordered Hernandez removed from the United States
to Guatemala.
Hernandez appealed to the BIA. The BIA rejected Hernandez’s contention that
the assignment of IJ Dierkes violated Hernandez’s due process rights, stating that
“[t]here is no due process right to adjudication by the Immigration Judge of one’s
choice” and “there is no evidence in the record supporting a conclusion that the
Immigration Judge’s decision was decided on some basis other than his understanding
and knowledge of the applicable laws and regulations and what he adduced from [his]
participation in the case.”9 (Id. at 2.) The BIA also affirmed the
denial of Hernandez’s motion for administrative closure and, alternatively, a
continuance for purposes of repapering, stating:
The Immigration Judge correctly ruled that he did not have the authority
to agree to administrative closure over the objection of [DHS]. An
Immigration Judge cannot administratively close deportation
proceedings over the objection of either party. Matter of Lopez-Barrios,
20 I&N Dec. 203, 204 (BIA 1990). The respondent argues on appeal
that the DHS opposition to administrative closure constitutes an abuse
9
The BIA specifically addressed the telephone conversation between IJ Dierkes
and DHS counsel that took place on June 26, 2006, and observed that Hernandez
“ha[d] drawn no connection between the informal conversation . . . and any improper
action or conclusion made by the Immigration Judge . . . .” (App. 2.)
-8-
of discretion. We have no jurisdiction over appeals from the DHS[’s]
exercise of discretion.
(App. 2.) The BIA further explained that “the Immigration Judge did not err in not
granting a continuance, as the possibility of a future promulgation of regulations that
might represent a favorable change to . . . one party or the other does not generally
constitute good cause for a continuance.” (Id. at 3.)
Concerning Hernandez’s argument that IJ Dierkes should have issued a decision
on the humanitarian asylum claim, the BIA determined:
Upon review of the record, we see no legitimate comparison between the
facts in this case and the facts in a case where a grant of humanitarian
asylum would be appropriate. See, e.g. Matter of Chen, 20 I&N Dec. 16
(BIA 1989). Thus, the respondent’s request for humanitarian asylum
does not constitute a basis for reversal of the Immigration Judge’s
decision or for a remand of the record.
(App. 3.)
The BIA denied Hernandez’s request for a nunc pro tunc grant of asylum,
observing that there were no “special considerations in this case which would warrant
such an extraordinary remedy.” (Id.) The BIA explained:
In a 2001 decision, the United States Court of Appeals for the Eighth
Circuit held that the Board did not apply the proper standard in
concluding that the respondent was barred from asylum as a persecutor.
See Hernandez v. Reno, 258 F.3d 806 (8th Cir. 2001). Upon remand, the
Board held that the respondent was not subject to the persecutor bar, but
did not make a finding that the respondent was otherwise eligible for
asylum. The record was remanded for further findings. See BIA
Decision, dated July 19, 2002; see also Immigration Judge’s written
order denying respondent’s motion to exclude evidence, dated February
23, 2004. The mere fact that the respondent is not an individual who is
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barred from asylum as a persecutor does not support, on its own, a
conclusion that he is eligible for asylum. There has been no point in
these proceedings where the respondent’s eligibility for asylum was not
contested by the DHS, and, more importantly, the respondent has never
benefitted from a final order determining that he fully met the standards
for eligibility for asylum. While we acknowledge that there have been
unfortunate delays in this case, we conclude that this case does not
present circumstances which would warrant the extraordinary measure
of a nunc pro tunc grant of relief.
(App. 3.) Finally, the BIA determined that Hernandez’s argument for suspension of
deportation was precluded by Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA
2000). Therefore, the BIA dismissed the appeal and adopted and affirmed IJ
Dierkes’s decision. Hernandez now petitions this court for review.
II.
In Hernandez’s petition for review, he asserts that: (1) the substitution of IJ
Dierkes violated 8 C.F.R. § 1240.1(b), the regulation applicable to the withdrawal and
substitution of immigration judges, and Hernandez’s due process rights, (2) the BIA
abused its discretion in rejecting his request for a grant of asylum nunc pro tunc, (3)
the BIA violated 8 C.F.R. § 1208.13(b)(1)(iii) and abused its discretion in denying
remand for consideration of Hernandez’s claim of humanitarian asylum, and (4) the
BIA abused its discretion and violated Hernandez’s due process rights by refusing to
administratively close his case for repapering or continue his deportation proceedings.
We address each in turn.
A.
Hernandez asserts that the substitution of IJ Dierkes for IJ Cuevas during
Hernandez’s remanded immigration proceedings violated 8 C.F.R. § 1240.1(b) and
Hernandez’s due process rights. 8 C.F.R. § 1240.1(b) provides that:
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The immigration judge assigned to conduct the hearing shall at any time
withdraw if he or she deems himself or herself disqualified. If an
immigration judge becomes unavailable to complete his or her duties,
another immigration judge may be assigned to complete the case. The
new immigration judge shall familiarize himself or herself with the
record in the case and shall state for the record that he or she has done so.
Although IJ Cuevas traveled to Minnesota on detail when he conducted Hernandez’s
hearing in 1994, IJ Cuevas no longer did so when Hernandez’s case was remanded by
the BIA in July 2002.10 (App. 57.) Accordingly, IJ Cuevas was “unavailable” within
the meaning of section 240.1(b). Therefore, the fact that IJ Dierkes was substituted
for IJ Cuevas was not in violation of section 240.1(b).
In addition, Hernandez cites no authority, and we have found none, establishing
that he had a due process right to a particular immigration judge. “The Fifth
Amendment’s due process clause mandates that removal hearings be fundamentally
fair.” Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004). “For a removal
hearing to be fair, the arbiter presiding over the hearing must be neutral . . . .” Tun v.
Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007); see Ahmed v. Gonzales, 398 F.3d
722, 725 (6th Cir. 2005) (“It is undisputed that petitioners in [immigration]
proceedings are entitled to an unbiased arbiter who has not prejudged their claims.”).
Thus, Hernandez has a due process right to an immigration judge who is fair and
impartial, but he does not have a due process right to a particular immigration judge.
The record in this case does not suggest that IJ Dierkes approached the case with a
closed mind or that he was not impartial. Therefore, the substitution of IJ Dierkes did
not violate Hernandez’s due process rights.
10
IJ Dierkes received this information about IJ Cuevas’s status from Assistant
Chief Immigration Judge Michael Rahill. Hernandez has provided us with no reason
to doubt the accuracy of Assistant Chief IJ Rahill’s representation to IJ Dierkes.
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B.
Hernandez asserts that the BIA abused its discretion in rejecting his request for
a grant of asylum nunc pro tunc because the equities his case presents demonstrate
that he is entitled to such relief. We note that we are not unmoved by the equities in
this case. IJ Cuevas did conclude that Hernandez had made the requisite showing for
asylum (although not in a final order), and this determination was rendered invalid by
the change in circumstances in Guatemala that took place in the ten years that passed
before the matter was revisited by IJ Dierkes. In addition, Hernandez has three
children who are United States citizens. Moreover, as when this court first considered
Hernandez’s asylum claim eight years ago, “[t]here is . . . nothing in the record apart
from his immigration status to suggest that Hernandez has been anything other than
a law abiding resident of this country since his entry in September 1992.” Hernandez,
258 F.3d at 811 n.5.
Hernandez states, without citation, that we review the BIA’s denial of his
request for a grant of asylum nunc pro tunc for abuse of discretion; the government
does not address the standard of review. The Ninth Circuit has stated that abuse of
discretion is the proper standard of review for the denial of an application to reapply
nunc pro tunc for admission into the United States and that the petitioner “has the
burden of establishing that he or she merits a favorable exercise of discretion.”
Dragon v. INS, 748 F.2d 1304, 1306 (9th Cir. 1984). However, Hernandez is not
seeking to apply for asylum but a grant of asylum, and Dragon does not address the
standard of review for the denial of such a request. Whatever the standard of review,
this case does not present the sort of circumstances where nunc pro tunc relief is
appropriate.
The federal courts have ordered nunc pro tunc relief, “[i]n the immigration
context, . . . where agency error would otherwise result in an alien being deprived of
the opportunity to seek a particular form of deportation relief.” Edwards, 393 F.3d at
310-11; see Iouri v. Ashcroft, 464 F.3d 172, 182 (2d Cir. 2006). In Edwards, the
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Second Circuit granted nunc pro tunc relief to aliens who were erroneously denied the
opportunity to apply for INA § 212(c) relief.11 393 F.3d at 312; see Snajder v. INS,
29 F.3d 1203, 1204-08 (7th Cir. 1994) (allowing petitioner to file applications for §
212(c) relief and adjustment of status, despite spending more than five years in prison,
because he had been eligible for relief during the time of his original hearing but the
IJ failed to properly advise him of his right to counsel and counsel would have advised
him to seek such relief); see also Batanic v. INS, 12 F.3d 662, 667-68 (7th Cir. 1993)
(ordering the BIA to allow the petitioner to apply for asylum to remedy the IJ’s error
in proceeding with hearing without the petitioner’s attorney present). This case is
distinguishable from Edwards, Snajder, and Batanic on the basis of the relief sought.
While the petitioners in those cases sought the restoration of a deprived opportunity
to apply for deportation relief, Hernandez seeks a grant of asylum. See Roman v.
INS, 233 F.3d 1027, 1033 (7th Cir. 2000) (distinguishing petitioners’ request for
asylum nunc pro tunc with relief sought in Batanic because there the petitioner “was
unequivocally barred from seeking asylum”).
Furthermore, the speculative nature of Hernandez’s request for asylum nunc pro
tunc demonstrates that he is not entitled to such relief. Hernandez argues that the BIA
should have granted him asylum nunc pro tunc because, but for agency error and the
11
Prior to the enactment of IIRIRA, Ҥ 212(c) . . . afforded a permanent resident
alien a discretionary waiver of deportation if he had lived in the United States for
seven consecutive years and had not been convicted of an ‘aggravated felony.’”
Munoz-Yepez v. Gonzales, 465 F.3d 347, 348-49 (8th Cir. 2006). The IIRIRA
“repealed § 212(c) . . . replacing the discretionary waiver of deportation with a more
limited and still discretionary cancellation of removal provision.” Id. at 349; see INA
§ 240A, 8 U.S.C. § 1229b(a) (providing that cancellation of removal is available to
an alien who has been a lawful permanent resident for at least five years, has resided
continuously in the United States for seven years, and has no conviction for an
expanded universe of aggravated felonies). The Supreme Court held that § 212(c)
relief remains available for aliens who pled guilty prior to the repeal of the statute and
who would have been eligible for § 212(c) relief at the time of their plea. I.N.S. v. St.
Cyr, 533 U.S. 289, 326 (2001).
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extraordinary delay caused by the agency, “Hernandez could have and would have
applied for permanent residence in 1995, and could easily have become a full-fledged
citizen years ago.” (Pet’r Br. 24) In Roman, “the [petitioners] argue[d] that the BIA’s
five-year delay in rendering its decision denied them due process and, as a
consequence, they should be granted asylum retroactively to the date of their
application.” 233 F.3d at 1033. The Seventh Circuit rejected this argument, noting
that the petitioners’ “argument that they would have been granted asylum had the BIA
rendered its decision earlier is no more than mere speculation.” Id. Similarly, the
Second Circuit stated that nunc pro tunc relief is not appropriate where a court “must
necessarily play the role of prognosticator, and divine whether, had the error not
occurred, the [petitioner] would have likely obtained immigration relief” but is proper
to where petitioners “were erroneously denied the opportunity to apply for . . . relief,
and that, but for nunc pro tunc relief, this denial would be irremediable.” Edwards,
393 F.3d at 311-12.
Under Roman and Edwards, nunc pro tunc relief is not appropriate in this case
where any argument that Hernandez would have ultimately received a grant of asylum
is speculative because, as the BIA observed, Hernandez “has never benefitted from
a final order determining that he fully met the standards for eligibility for asylum.”
(App. 3.) It is true that the BIA incorrectly applied the persecutor bar and did not
disturb IJ Cuevas’s determination that Hernandez had given credible testimony.
However, even absent the persecution bar and viewing Hernandez’s testimony as
credible, the BIA may have reversed the IJ’s grant of asylum. Therefore, Hernandez’s
speculation that he “could easily have become a full-fledged citizen years ago,” (Pet’r
Br. 24) does not warrant a grant of asylum nunc pro tunc.
C.
Hernandez next contends that he is entitled to humanitarian asylum because
there is a reasonable probability that he may suffer other serious harm upon removal
to Guatemala. 8 C.F.R. § 1208.13(b)(1)(iii) provides for humanitarian asylum in the
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absence of a well-founded fear of persecution.12 Subject to the decisionmaker’s
discretion, section 1208.13(b)(1)(iii) provides for asylum where: (1) “[t]he applicant
has demonstrated compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution,” 8 C.F.R. §
1208.13(b)(1)(iii)(A), or (2) “[t]he applicant has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal to that country,”
Id. § 1208.13(b)(1)(iii)(B).
Generally, we review the BIA’s denial of a petitioner’s request for humanitarian
asylum for abuse of discretion. Mambwe v. Holder, 572 F.3d 540, 550 (8th Cir.
2009); see 8 U.S.C. § 1252(b)(4)(D) (providing that we may overturn a discretionary
denial of asylum only if it is “manifestly contrary to the law and an abuse of
discretion”). Here, however, Hernandez does not argue that the BIA abused its
discretion in denying his humanitarian asylum claim. Rather, he asserts that: (1) the
BIA violated 8 C.F.R. § 1003.1(d)(3)(iv) in failing to remand the claim for further
factfinding as IJ Dierkes ignored the claim and (2) the BIA erred because it only
considered whether such relief would be appropriate under section
1208.13(b)(1)(iii)(A) which focuses on past harm, whereas he sought humanitarian
asylum under section 1208.13(b)(1)(iii)(B) in light of the future harm he alleges that
he faces if removed to Guatemala.
On April 16, 2004, Hernandez submitted a response to IJ Dierkes’s “request
that the parties direct attention to relevant evidence in the record.” (Admin. R. at
484.) In the response, Hernandez notes that he is restating his position at a prior
12
Alternatively, to be eligible for asylum, an applicant must show that she is
“unable or unwilling to” return to her country of origin “because of persecution or a
well-founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Hernandez does not seek review of the denial of his application for asylum based on
IJ Dierkes’s determination that he does not have a well-founded fear of persecution
if removed to Guatemala in light of changed circumstances.
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hearing that “the evidence in the record would also support a grant of asylum pursuant
to 8 C.F.R. § 208.13(b)(1)(iii) [sic], even in the absence of a well-founded fear of
persecution.”13 (Id.) Hernandez further states:
The evidence cited above would also support a humanitarian grant of
asylum under 8 C.F.R. § 208.13(b)(1)(iii) [sic] and consistent with the
principles of Matter of H, Int. Dec. #3276 (BIA 1996), and Matter of
Pula, 19 I&N Dec. 467 (BIA 1987). A humanitarian asylum grant is
justified by all of the evidence contained in Exhibits 15 and 19, and the
INS Resource Information Center [“INS RIC”] Question and Answer
Series report, Guatemala Hardship Considerations, at Exhibit 14, pages
54-80. The INS RIC report reflects the truly deplorable economic,
educational and social conditions that persist (and are worsening) in
post-war Guatemala. The consequences of these conditions for
Respondent and his family members, especially his three U.S. citizen
children, should be of the greatest concern to this court should it reach
this discretionary analysis. The Court should not fail to weigh the BIA’s
inexplicable, seven-year delay in deciding the INS appeal of 1994.
(Id. at 485-86.) Hernandez made no other submissions to IJ Dierkes with regard to
his claim for humanitarian asylum. IJ Dierkes did not issue a ruling on Hernandez’s
humanitarian asylum claim. The BIA determined that remand of the humanitarian
asylum claim was not warranted and that Hernandez was not entitled to such relief.
The BIA explained,
The respondent argues that his claim for humanitarian asylum should
have been assessed by the Immigration Judge. Upon review of the
record, we see no legitimate comparison between the facts in this case
and the facts in a case where a grant of humanitarian asylum would be
appropriate. See, e.g. Matter of Chen, 20 I&N Dec. 16 (BIA 1989).
Thus, the respondent’s request for humanitarian asylum does not
13
Although Hernandez cites 8 C.F.R. § 208.13(b)(1)(iii), he expressly seeks
humanitarian asylum which is available under 8 C.F.R. § 1208.13(b)(iii).
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constitute a basis for reversal of the Immigration Judge’s decision or for
a remand of the record.
(App. 3.)
Here, Hernandez asserts that he is entitled to humanitarian asylum under section
1208.13(b)(1)(iii)(B) because he would face “other serious harm” if returned to
Guatemala. “Other serious harm” means “harm that is not inflicted on account of
race, religion, nationality, membership in a particular social group, or political
opinion, but is so serious that it equals the severity of persecution.” See 65 Fed. Reg.
76,121, 76,127 (2000). This is clearly a very high standard for relief. See id.;
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, ____, 2009 WL 1789233, *3 (11th Cir.
2009) (per curiam) (providing that humanitarian asylum “is reserved for the most
extraordinary cases”); see also Cutaj v. Gonzales, 206 F. App’x 485, 492 (6th Cir.
2006) (unpublished) (“Given the high standard that must be met in order to justify a
grant of humanitarian asylum, we cannot say that the immigration judge abused his
discretion in denying such relief in this case. . . . Furthermore, the petitioner has not
established a reasonable possibility that she will suffer ‘other serious harm’ if she is
removed to Albania. No evidence exists in the record that her family has suffered
‘serious harm’ by remaining in their homeland or that her attackers would ever
resurface to harm her again. [The petitioner] has thus failed to meet her burden of
establishing her eligibility for humanitarian asylum.”).
It is undisputed that Hernandez raised a humanitarian asylum claim before IJ
Dierkes and that IJ Dierkes did not address the claim. The BIA acknowledged
Hernandez’s humanitarian asylum claim but denied it. In denying the claim,14 the BIA
14
We note that the reasoning of the BIA in denying the humanitarian asylum
claim does not indicate any improper factfinding. See 8 C.F.R. § 1003.1(d)(3)(iv)
(providing that the BIA is precluded from “engag[ing] in factfinding” and that “[i]f
further factfinding is needed in a particular case, the Board may remand the
proceeding to the immigration judge”). Rather, the BIA determined that the facts
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cited only one only case, Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989), where the
BIA granted humanitarian asylum on the basis of the severity of the past persecution
the petitioner had suffered. See id. at 19 (determining that an alien may have suffered
such atrocious forms of persecution by a former regime that it would be inhumane to
require the alien to return to his home country “even if there is little likelihood of
future persecution”). Hernandez’s claim, however, is not based on the severity of the
past persecution he endured, see 8 C.F.R. § 1208.13(b)(1)(iii)(A), but the severity of
the harm he faces if returned to Guatemala, see id. § 1208.13(b)(1)(iii)(B). Therefore,
neither IJ Dierkes nor the BIA addressed the humanitarian claim as Hernandez
actually presented it, and we thus have nothing to review.
Furthermore, even if the BIA’s decision could be characterized as rejecting
Hernandez’s humanitarian asylum claim under section 1208.13(b)(1)(iii)(B), this case
would be analogous to Brucaj v. Ashcroft, 381 F.3d 602 (7th Cir. 2004). There, the
IJ did not discuss humanitarian asylum as a basis for relief in his opinion, despite the
fact that the petitioner had raised such a claim. Id. at 606. The petitioner appealed to
the BIA, and the BIA rejected the humanitarian asylum claim, stating that “[a]lthough
the respondent suffered harm amounting to persecution, she has failed to present any
evidence to support her assertion that she would suffer severe psychological harm if
she were to return to Yugoslavia.” Id. (quotation omitted). On appeal to the Seventh
Circuit, the petitioner claimed “that the BIA’s stated justification for denying her
humanitarian asylum was insufficient.” Id. at 609. The Seventh Circuit agreed,
stating that the BIA’s decision did not address the humanitarian asylum claim “with
the requisite degree of clarity necessary [for the Seventh Circuit] to conduct [its]
review.” Id. at 610. The court explained that “the precise basis for the BIA’s decision
cannot be gleaned from the single-sentence explanation included in the Board’s order.
. . . At a minimum, a more plenary consideration is certainly appropriate.” Id. at 611.
Accordingly, the court “grant[ed] [the] petition and remand[ed] the case to the BIA
for clarification regarding the basis for denying [the petitioner’s] humanitarian asylum
alleged by Hernandez were insufficient to warrant the relief sought.
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claim.” Id. As in Brucaj, the IJ did not address Hernandez’s humanitarian asylum
claim, and the BIA’s denial of the claim leaves us unsure as to “the precise basis for
the BIA’s decision . . . .” See id.
In sum, we grant Hernandez’s petition as to his section 1208.13(b)(1)(iii)(B)
“other serious harm” humanitarian claim and remand the case to the BIA for
proceedings consistent with this opinion because: (1) based on the BIA’s reasoning
in rejecting the claim, the BIA improperly characterized it as a “past persecution”
humanitarian asylum claim under section 1208.13(b)(1)(iii)(A) such that Hernandez’s
actual claim has never been reviewed and (2) even if the BIA did consider it as an
“other serious harm” claim, the BIA’s explanation is so vague that we are unsure as
to the reason for the denial.
D.
Hernandez argues that the BIA abused its discretion in denying his alternative
requests for administrative closure and a continuance and violated his due process
rights. Hernandez also asserts that his case must be remanded because IJ Dierkes only
addressed Hernandez’s request for administrative closure and ignored his request to
continue his deportation proceedings.
On November 15, 2006, Hernandez sought administrative closure and, in the
alternative, a continuance for purposes of repapering. In the alternative motions,
Hernandez asserted the same “good cause” for both requests, the finalization of the
proposed repapering rules. (App. 97.) At the January 10, 2007, hearing, DHS
declined to join Hernandez’s request for administrative closure. (Id. at 253.) IJ
Dierkes denied the alternative motions, observing that he lacked the authority to grant
such relief “without the consent of both parties.” (Id. at 6.) IJ Dierkes did not
separately address his reasoning for denying the request for continuance. The BIA
affirmed the denial of both motions, finding that: (1) the IJ correctly concluded that
he lacked the authority to grant administrative closure in light of DHS’s objection, (2)
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it lacked jurisdiction to consider Hernandez’s argument “that the DHS[’s] opposition
to administrative closure constitute[d] an abuse of discretion[,]” and (3) the IJ properly
denied Hernandez’s request for continuance “as the possibility of a future
promulgation of regulations that might represent a favorable change to . . . one party
or the other does not generally constitute good cause for a continuance.” (Id. at 2-3.)
With respect to the denial of Hernandez’s request for continuance, controlling
precedent establishes that this court lacks jurisdiction to review the discretionary
decision to deny a continuance of an alien’s removal hearing. Castro-Pu v. Mukasey,
540 F.3d 864, 869 (8th Cir. 2008). Thus, unless the denial of Hernandez’s motion for
continuance “result[s] in . . . procedural unfairness as to implicate due process” or
presents “a question of law reviewable under 8 U.S.C. § 1252(a)(2)(D),”15 we cannot
consider it. Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005); see Castro-Pu, 540
F.3d at 869. Although Hernandez contends that this is not the typical discretionary
denial because the IJ failed to specifically address his continuance request and, in turn,
violated his due process rights, the BIA’s denial of the continuance is a discretionary
determination over which we lack jurisdiction. See Castro-Pu, 540 F.3d at 869; Grass,
418 F.3d at 879; see also Lovan v. Holder, No. 08-2177, 2009 WL 2341822, *1 (8th
Cir. July 31, 2009) (“We review the BIA’s decision as the final agency action,
including the IJ’s findings and reasoning to the extent they were expressly adopted by
the BIA.” (quotation omitted)); Marroquin-Ochoma v. Holder, No. 08-2760, 2009 WL
15
8 U.S.C. § 1252(a)(2)(D), entitled “Judicial review of certain legal claims,”
provides that:
Nothing in subparagraph (B) or (C) [of this section 1252], or in any other
provision of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance with this
section.
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2225808, *2 (8th Cir. July 28, 2009) (“Where, as here, the BIA adopts the decision
of an IJ but adds additional reasoning, we review both decisions.”).
We also lack jurisdiction to consider the denial of Hernandez’s motion for
administrative closure for two reasons. First, “[t]he decision to administratively close
a case is, in th[e] [immigration] context, not distinguishable from a continuance[,]”
Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007), and, as previously
stated, we generally lack jurisdiction to review denials of continuances, see Castro-Pu,
540 F.3d at 869; Grass, 418 F.3d at 879. Second, there is no sufficiently meaningful
standard for evaluating the IJ’s or the BIA’s decision not to close a case. See Diaz-
Covarrubias v. Mukasey, 551 F.3d 1114, 1118 (9th Cir. 2009); Lin v. Att’y Gen. of
U.S., 127 F. App’x 36, 39 (3d Cir. 2005) (unpublished). As the Ninth Circuit
explained,
[T]here is no statutory basis for administrative closures. Nor is there any
regulatory basis for administrative closures. Moreover, the BIA has not
set forth any meaningful standard for exercising its discretion to
implement an administrative closure. Under the handful of cases
considering administrative closures, the BIA has stated only that
administrative closure is an “administrative convenience,” and “[a] case
may not be administratively closed if opposed by either of the parties.”
This language does not provide any guidance to the BIA regarding when
it should exercise its discretion to grant administrative closure.
Diaz-Covarrubias, 551 F.3d at 1118 (quoting In re Gutierrez-Lopez, 21 I. & N. Dec.
479, 480 (BIA 1996)); see Lin, 127 F. App’x at 39 (“Like decisions to sua sponte
reopen a case, decisions to administratively close cases are decisions that are purely
committed to the BIA’s or IJ’s discretion. Accordingly, for these types of cases there
are no meaningful standards by which this Court could review that exercise of
discretion.”). Thus, we lack jurisdiction over the denial of Hernandez’s motion for
administrative closure.
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Even if we had jurisdiction to consider Hernandez’s request, “[a]dministrative
closure is a procedural convenience that may be granted if both parties to the removal
proceedings agree, but it does not constitute a final order. Rather, administrative
closure of a case temporarily removes a case from an immigration judge’s calendar
or from the Board’s docket.” Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st Cir.
2007) (citations omitted). “Under BIA precedent, a case may not be administratively
closed if either party opposes.” Id. (citing In re Gutierrez-Lopez, 21 I. & N. Dec. 479,
480 (BIA 1996); In re Peugnet, 20 I. & N. Dec. 233, 234 n.1 (BIA 1991); In re
Munoz-Santos, 20 I. & N. Dec. 205, 207 (BIA 1990)). “Thus, neither an Immigration
Judge nor the BIA may administratively close a case where . . . DHS objects.”
Lopez-Reyes, 496 F.3d at 21. Here, it is undisputed that DHS objected to
Hernandez’s request for administrative closure. Therefore, both the IJ and the BIA
lacked discretion to grant the motion.
III.
For the foregoing reasons, we deny the petition insofar as it relates to the
substitution of IJ Dierkes, Hernandez’s request for a grant of asylum nunc pro tunc,
and his motion for administrative closure and, alternatively, a continuance. However,
we grant the petition insofar as it concerns Hernandez’s humanitarian asylum claim.
We remand to the BIA for further proceedings consistent with this opinion.
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