PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2131
EDWIN ALEXANDER ROMERO ZAMBRANO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: September 12, 2017 Decided: December 5, 2017
Before KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.
Petition for review granted; vacated and remanded by published opinion. Judge Gibney
wrote the opinion, in which Judge Keenan and Judge Wynn joined.
ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Rebecca Hoffberg Phillips, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Laura
Jacobsen, L&L IMMIGRATION LAW, PLLC, Alexandria, Virginia, for Petitioner.
Chad A. Readler, Acting Assistant Attorney General, John S. Hogan, Assistant Director,
Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
GIBNEY, District Judge:
Edwin Romero Zambrano appeals the decision of the Board of Immigration
Appeals (the “BIA”) to affirm an Immigration Judge’s (“IJ”) decision to deny his
application for asylum. Romero Zambrano claims that the BIA applied the wrong legal
standard in assessing his asylum eligibility and the wrong standard of review when
evaluating the IJ’s decision. As explained below, we agree that the BIA applied the
wrong legal standard for assessing asylum eligibility and therefore grant the petition for
review and remand to the BIA for further proceedings.
I.
Romero Zambrano, a native citizen of Honduras, joined the Honduran military
after high school and helped local police arrest gang members. After Romero Zambrano
left the army, members of the “Barrio Pobres” from the 18th Street gang tried to track him
down to get their revenge. Romero Zambrano moved frequently to avoid detection and
tried unsuccessfully to enter the United States five times. He finally managed to enter the
United States in August 2011.
The gang’s search for him continued. In 2012, armed men broke into the
apartments of Romero Zambrano’s sister and former girlfriend in San Pedro Sula,
Honduras, asking about his location. Gang members continued to threaten his friends
and family for more than a year after that.
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In early 2014, U.S. immigration authorities arrested the petitioner. The gang heard
about Romero Zambrano’s potential deportation and increased their efforts to find him.
In March 2014, gang members approached his family and friends in three different
Honduran cities. First, several gang members assaulted one of the petitioner’s brothers in
Elixir, Honduras. The members tied up the brother and his family while demanding to
know Romero Zambrano’s whereabouts. Next, masked gang members broke into the
home of the petitioner’s other brother in Choloma, Honduras, asking where Romero
Zambrano lived. Gang members also confronted the petitioner’s former girlfriend while
she visited San Pedro Sula and demanded to know where they could find the petitioner.
After his 2014 arrest by the immigration authorities, Romero Zambrano sought
asylum based on the new assaults on his family. Ordinarily, an alien must apply for
asylum within one year after entering the United States. Since the petitioner entered the
country in 2012, the deadline would fall sometime in 2013. But the deadline is flexible if
the alien can show “the existence of changed circumstances which materially affect the
applicant’s eligibility for asylum.” 8 U.S.C. §§ 1158(a)(2)(B), (a)(2)(D). If an applicant
can show changed circumstances, he must file for asylum within a “reasonable period.”
8 U.S.C. § 1252(a)(2)(D).
The legal meaning of “changed circumstances” is the central issue in this appeal.
Romero Zambrano argued to the IJ and the BIA that the 2014 attacks on his family
represented changed circumstances from the 2012 incidents due to the increased violence
against his family members and the new scope of the search for him spanning various
cities. The IJ rejected the petitioner’s argument and denied his application as untimely.
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The IJ held that more severe attacks cannot amount to changed circumstances.
Specifically, the IJ said that:
[T]he Respondent [Romero Zambrano] argues that the recent intensification of
threats and the ‘increasing proof’ of their basis constitute materially changed
circumstances. . . . This argument is unpersuasive. Two years ago, there was
substantial evidence that his family members were targeted and questioned.
Additional proof of pre-existing persecution is not a changed circumstance
materially affecting the Respondent’s eligibility for asylum.
J.A. 75. Thus, the IJ denied the petition. 1
Romero Zambrano appealed, but the BIA rejected his arguments and affirmed the
IJ’s decision. The BIA found that “the 2014 incidents were an escalation of the 2012
incidents.” Nevertheless, the BIA held that “we agree with the Immigration Judge that
additional proof of an existing claim does not establish changed circumstances.” J.A. 4.
II.
On appeal, the petitioner raises two issues: (1) whether circumstances that provide
additional proof in support of an existing asylum claim can satisfy the “changed
circumstances” exception to the one-year filing deadline; and (2) whether the BIA should
have applied de novo review rather than clear error review in evaluating the IJ’s
determination that the petitioner did not qualify for the changed circumstances exception.
1
Recognizing the danger in Romero Zambrano’s homeland, the IJ did grant withholding
of removal under 8 U.S.C. § 1231(b)(3). Under the Immigration and Nationality Act
(“INA”), aliens who fear persecution in their native countries may apply for two forms of
relief: asylum under 8 U.S.C. § 1158, and withholding of removal under 8 U.S.C. §
1231(b)(3). Asylum provides more benefits than withholding, such as the ability to apply
for lawful permanent residence and to petition for spouses and children to receive
asylum. Zuh v. Mukasey, 547 F.3d 504, 508 (4th Cir. 2008). In contrast, withholding
gives the alien a safe place to stay until the danger lifts.
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Because we find that the BIA misinterpreted the changed circumstances exception, we
need not reach the second issue of whether the BIA applied the incorrect standard of
review to the IJ’s decision.
A.
The petitioner’s claim raises the threshold question of this Court’s jurisdiction.
The courts generally lack jurisdiction to review the discretionary decisions of an IJ or the
BIA that an asylum applicant has failed to show changed circumstances. Gomis v.
Holder, 571 F.3d 353, 358–59 (4th Cir. 2009). The REAL ID Act of 2005, however,
grants this Court jurisdiction where a petitioner raises a colorable “question of law”
regarding the BIA’s determination. 8 U.S.C. § 1252(a)(2)(D); Gomis, 571 F.3d at 358–
59. A number of our sister courts have found that a reviewable question of law exists
where an agency used the wrong legal standard in coming to a discretionary
determination. See Mandebvu v. Holder, 755 F.3d 417, 426 (6th Cir. 2014) (exercising
jurisdiction where the petitioner sought to “determine as a matter of law whether the IJ
improperly required that they prove something not required by the statute”); Weinong Lin
v. Holder, 763 F.3d 244, 247 (2d Cir. 2014) (exercising jurisdiction where the petitioner’s
claim concerned the BIA’s categorical interpretation of the meaning of “changed
circumstances”). In other words, the factual question of what happened is unreviewable,
but the Court has jurisdiction to decide questions of law concerning the legal definition of
a changed circumstance.
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Romero Zambrano simply asks this Court to review the legal standard applied by
the IJ and the BIA. Specifically, the petitioner asks the Court whether the IJ and the BIA
improperly interpreted 8 U.S.C. § 1158(a)(2)(D) to mean that additional proof in support
of a pre-existing but unasserted asylum claim cannot, as a matter of law, satisfy the
changed circumstances exception. What the underlying circumstances are, and what
changes occurred, are unreviewable factual questions. But the definition of a changed
circumstance presents a distinctly legal question over which this Court may properly
exercise jurisdiction.
B.
Where the BIA has adopted and supplemented the IJ’s decision, a court on appeal
reviews both rulings. Barahona v. Holder, 691 F.3d 349, 353 (4th Cir. 2012). We
review legal determinations de novo, while giving proper deference to the BIA’s
interpretations of the Immigration and Nationality Act. Martinez v. Holder, 740 F.3d
902, 909 (4th Cir. 2014). For unpublished BIA opinions such as the one here, this Court
does not give the BIA’s statutory interpretations Chevron deference, but instead may look
to the BIA’s opinion as “guidance” based upon “the thoroughness evident in [the BIA’s]
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade.” Id. at 909–10
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1994)) (citations omitted).
“[T]he process of review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained.” Cordova v. Holder, 759
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F.3d 332, 338 (4th Cir. 2014) (internal quotation omitted). “[W]hen a BIA order does not
demonstrate that the agency has considered an issue, ‘the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.’”
Id. (quoting Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009)) (citations omitted).
i.
This Court has not had the opportunity to address whether facts that provide
additional proof in support of a pre-existing asylum claim can satisfy the changed
circumstances exception to the one-year filing deadline, but other circuits have addressed
the issue. In Vahora v. Holder, the Ninth Circuit reversed the BIA where the circuit court
determined that the IJ and BIA had interpreted “changed circumstances” as “requiring the
applicant to show that, prior to the change in circumstances, the applicant could not have
filed a meritorious application, and that the change in circumstances resulted in an
application that could succeed.” 641 F.3d 1038, 1044 (9th Cir. 2011). The Ninth Circuit
rejected that interpretation after looking at Congress’s intent in creating the exception.
Id. at 1045. Senator Orrin Hatch, one of the main proponents of the one-year deadline for
asylum applications, stated that he wanted to “ensure that asylum is available for those
with legitimate claims for asylum” and said:
[T]he exception is intended to deal with circumstances that changed after
the applicant entered the United States that are relevant to the applicant’s
eligibility for asylum. The changed circumstances provision will deal with
situations like those in which the situation in the alien’s home country may
have changed, [or] the applicant obtains more information about likely
retribution he or she might face if the applicant returned home.
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Id. at 1045 (quoting 142 Cong. Rec. S11838–40 (daily ed. Sept. 30, 1996) (statement of
Sen. Orrin Hatch)) (emphasis omitted). The Vahora court reasoned that “[a]n applicant is
not required to file for asylum when his claim appears to him to be weak; rather he may
wait until circumstances change and the new facts make it substantially more likely that
his claim will entitle him to relief.” 641 F.3d at 1044 (citing Fakhry v. Mukasey, 524
F.3d 1057, 1063 (9th Cir. 2008)). The changed circumstances exception applies even if
the applicant may have been eligible for asylum before the new information. Id. at 1047.
In Weinong Lin v. Holder, the Second Circuit determined that the BIA and IJ erred
where the BIA categorically held that “even if the facts about a person’s objective
circumstances change, when they are altered by actions driven by ‘the same reason’ that
led to a decision to emigrate, they cannot constitute changed circumstances.” 763 F.3d at
247. In Mandebvu v. Holder, the Sixth Circuit reversed the decisions of an IJ and the
BIA where they interpreted the changed circumstance exception to “require that an
asylum applicant, in order to excuse delay in filing beyond the one-year deadline,
demonstrate that he would not have been eligible for asylum had he applied before the
change in country conditions.” 755 F.3d at 426 (remanding because the BIA
categorically determined that “incremental change” (or change that strengthened an
applicant’s pre-existing fear of persecution) could not satisfy the changed circumstances
exception).
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ii.
This Court agrees with the logic of the Ninth, Second, and Sixth circuits. New
facts that provide additional support for a pre-existing asylum claim can constitute a
changed circumstance. These facts may include circumstances that show an
intensification of a preexisting threat of persecution or new instances of persecution of
the same kind suffered in the past. The Court remands to the BIA and leaves the
determination of whether the facts on record constitute changed circumstances which
materially affect the petitioner’s eligibility for asylum to the BIA’s sound discretion.
III.
The BIA erred when it categorically held that additional proof of an existing claim
does not establish changed circumstances. Accordingly, we grant the petition for review,
vacate the BIA’s order, and remand the case to the BIA for further consideration in light
of this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED
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