holding that the Board must review for clear error even “ultimate” facts that are based on other subsidiary facts
How later courts described this case
- holding that the Board must review for clear error even “ultimate” facts that are based on other subsidiary facts
- collecting cases and explaining that predictive findings are factual findings
- reversing and remanding a Board decision based on Board’s “independent appellate decision on facts ”
- likelihood of torture reviewed for clear error
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11-‐‑3086
MIGUEL A. ROSILES-‐‑CAMARENA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
____________________
Petition for Review of the Decision of the
Board of Immigration Appeals
____________________
ARGUED MARCH 26, 2012 — DECIDED AUGUST 21, 2013
____________________
Before EASTERBROOK, Chief Judge, and BAUER and WOOD,
Circuit Judges.
EASTERBROOK, Chief Judge. Miguel Rosiles-‐‑Camarena, a
citizen of Mexico, was admitted to the United States for
permanent residence in 1977, when he was ten years old. He
did not use his opportunities to become a citizen. Following
his felony conviction for indecent solicitation of a minor, his
permanent-‐‑residence status was revoked, and he has been
ordered removed to Mexico.
No. 11-‐‑3086 2
Rosiles-‐‑Camarena is homosexual and HIV positive. He
contends that gays are persecuted in Mexico (at least outside
of cosmopolitan Mexico City) and that gays infected by HIV
face extra risk. Although he is not eligible for asylum (the
deadline for seeking that relief expired long ago), he applied
for withholding of removal under 8 U.S.C. §1231(b)(3), and
relief under the Convention Against Torture, implemented
by 8 C.F.R. §§ 1208.16 to .18. To be eligible for either benefit,
an alien must show a clear probability that persecution (for
withholding of removal) or torture (for the Convention) is
more likely than not in the alien’s native country.
The immigration judge and the Board of Immigration
Appeals disagree about whether Rosiles-‐‑Camarena satisfies
these requirements. The IJ initially granted his application
for relief under both the statute and the Convention, finding
on the basis of statistics and expert testimony that Rosiles-‐‑
Camarena probably would be killed or injured in Mexico as
a result of his sexuality and disease. The BIA remanded, but
the IJ adhered to his position on remand. The BIA then re-‐‑
versed and, after a remand (by consent) from this court, ad-‐‑
hered to its position. The most recent decision states that
“[t]he probability of future harm is a legal question that we
review de novo” and that, “[i]n assessing the probability of
harm de novo, we may give different weight to the evidence
than did the Immigration Judge.” The BIA proceeded to do
just that. It accepted all of the IJ’s findings of historical fact
but disagreed with the IJ about the risk implied by those
facts.
For example: the IJ found that Rosiles-‐‑Camarena is at
substantial risk because 148 persons were murdered in Mex-‐‑
ico, between 1995 and 2006, because of their sexual orienta-‐‑
3 No. 11-‐‑3086
tion. But the Board observed that this amounts to 12 or 13
killings a year in a population exceeding 110 million, at least
2% of which is homosexual, making it unlikely (a risk of no
more than 1 in 100,000) that any given gay man would be
killed any given year. Expert testimony establishing that “at-‐‑
tacks on homosexuals are frequent” does not show the mag-‐‑
nitude of risks, any more than expert testimony that “auto
accidents are frequent” would imply that a given driver
(even one in a high-‐‑risk group, such as men under 25) is
more likely than not to be injured. The Board stated that the
IJ did not commit clear error in crediting the statistics and
the expert’s testimony but added: “as atrocious as it is to
have 12 or 13 such killings per year, that fact does not show
a clear probability that [Rosiles-‐‑Camarena] will be killed or
otherwise persecuted.” The Board treated the risk of future
harm as a matter of legislative fact, and it took the view that
decisions on mixed (or “ultimate”) questions are open to
plenary decision. Rosiles-‐‑Camarena contends that the Board
made a legal error by engaging in this kind of review.
He also contends that the Board’s decision lacks substan-‐‑
tial evidence in the record, but we lack jurisdiction to ad-‐‑
dress that subject. He has been convicted of an aggravated
felony, and as a result 8 U.S.C. §1252(a)(2)(C) forbids judicial
review of the removal decision, except to the extent that the
alien presents legal arguments (statutory or constitutional).
See 8 U.S.C. §1252(a)(2)(D). A contention that the agency’s
decision is not supported by enough evidence is not a “le-‐‑
gal” argument for this purpose. See Jiménez Viracacha v.
Mukasey, 518 F.3d 511 (7th Cir. 2008); Paez Restrepo v. Holder,
610 F.3d 962 (7th Cir. 2010). Section 1252(a)(2)(C) applies to
applications for relief based on §1231(b)(3). See Moral-‐‑Salazar
v. Holder, 708 F.3d 957 (7th Cir. 2013). Although Moral-‐‑
No. 11-‐‑3086 4
Salazar expresses a reservation for CAT claims, we need not
explore in this litigation what sort of arguments under CAT
§1252(a)(2)(C) allows us to consider.
A regulation specifies the extent to which the Board may
review or supplement factual decisions by immigration
judges. It provides:
(i) The Board will not engage in de novo review of findings of
fact determined by an immigration judge. Facts determined by
the immigration judge, including findings as to the credibility of
testimony, shall be reviewed only to determine whether the find-‐‑
ings of the immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion, and
judgment and all other issues in appeals from decisions of im-‐‑
migration judges de novo.
…
(iv) Except for taking administrative notice of commonly known
facts such as current events or the contents of official documents,
the Board will not engage in factfinding in the course of deciding
appeals. A party asserting that the Board cannot properly re-‐‑
solve an appeal without further factfinding must file a motion
for remand. If further factfinding is needed in a particular case,
the Board may remand the proceeding to the immigration judge
or, as appropriate, to the Service.
8 C.F.R. §1003.1(d)(3). An argument that the Board has ex-‐‑
ceeded the scope of review permissible under this regulation
is a legal one, for the purpose of §1252(a)(2)(D). See Rotinsulu
v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008).
Matter of V– K–, 24 I&N Dec. 500 (2008), on which the
Board relied here, concludes that §1003.1(d)(3)(i) does not
prevent it from disagreeing with an IJ’s predictions about
the likelihood of future harm. V– K– gives two principal rea-‐‑
sons. First, clause (ii) authorizes the Board to “review ques-‐‑
5 No. 11-‐‑3086
tions of law, discretion, and judgment”—and if the probabil-‐‑
ity of harm is an issue of fact, it is also one of “law” (to the
extent the Board must choose “how probable is probable
enough?”) and of “judgment” (because evaluating the prob-‐‑
ability of harm requires the application of judgment to his-‐‑
torical facts). Second, the Board observed that the explana-‐‑
tion issued with the adoption of §1003.1(d)(3) reveals that
the resolution of a mixed question of law and fact is not itself
a “fact” for the purpose of clause (i). The commentary stated
that clause (ii) covers “judgments as to whether the facts es-‐‑
tablished by a particular alien amount to ‘past persecution’
or a ‘well founded fear of persecution.’” 67 Fed. Reg. 54,878,
54,890 (Aug. 26, 2002).
The first circuit has held that the approach articulated in
V– K– is within the Board’s authority. See Rotinsulu, 515 F.3d
at 73; Sicaju-‐‑Diaz v. Holder, 663 F.3d 1, 5 (1st Cir. 2011). The
third circuit, by contrast, set aside V– K– on petition for re-‐‑
view. Kaplun v. Attorney General, 602 F.3d 260, 269–71 (3d
Cir. 2010) (CAT). In En Hui Huang v. Attorney General, 620
F.3d 372, 381–87 (3d Cir. 2010), it applied Kaplun to applica-‐‑
tions for withholding of removal. Four other circuits have
agreed with the third. See Hui Lin Huang v. Holder, 677 F.3d
130 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523 (4th Cir.
2012); Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Zhou Hua
Zhu v. Attorney General, 703 F.3d 1303 (11th Cir. 2013). The
third circuit concluded 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
No. 11-‐‑3086 6
clause (i), and the Board’s role is limited to identifying clear
error by the IJ.
The Board’s decision in our case adds some rationales in
the course of explaining why it finds Kaplun and En Hui
Huang unpersuasive. The Board’s principal concern is that
its legal views won’t have much significance if all predic-‐‑
tions are facts. It observed that “‘predictive’ findings, partic-‐‑
ularly regarding the level of harm that is likely to be inflict-‐‑
ed, may preordain resolution of the legal question regarding
whether such harm rises to the level of persecution or tor-‐‑
ture.” The Board added: “any such predictive findings are
likely to be based on written reports of country conditions
over which a trier of fact has no particular expertise or ad-‐‑
vantage, in contrast to issues of credibility, resolution of con-‐‑
flicting testimony, or questions of historical fact.”
In other words, the Board thought that the category of
predictions identified by the third circuit often concerns leg-‐‑
islative rather than adjudicative facts. A sound prediction
depends on country conditions, not (necessarily) on facts
unique to the alien. For example, Rosiles-‐‑Camarena has
lived in the United States since he was 10 and has visited
Mexico only briefly. Many of the IJ’s predictions concern
conditions in Mexico. The Board thinks it unacceptable to
have one IJ assert that conditions in Mexico are horrible,
while another deems them fine, and to have both conclu-‐‑
sions immune to effective review.
Immigration judges display substantial disparity in eval-‐‑
uating claims for asylum or withholding of removal. See Ja-‐‑
ya Ramji-‐‑Nogales, Andrew I. Schoenholtz & Philip G.
Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60
Stan. L. Rev. 295 (2007). The Board thinks that it is entitled to
7 No. 11-‐‑3086
curtail IJs’ divergent approaches and believes that it can do
so by determining whether particular countries are, or are
not, hostile to particular political or social groups. Indeed,
we have urged the Board to make categorical decisions. E.g.,
Banks v. Gonzales, 453 F.3d 449, 453–55 (7th Cir. 2006); Xiu
Ling Chen v. Gonzales, 489 F.3d 861, 862 (7th Cir. 2007); Chun
Hua Zheng v. Holder, 666 F.3d 1064, 1068 (7th Cir. 2012). The
Board fears that, under Kaplun and similar decisions, every IJ
may maintain a personal view about the risks in each nation.
Both the Board and the courts of appeals (reviewing it)
would have their hands tied. Rosiles-‐‑Camarena would bene-‐‑
fit from such a limit on review, but aliens whose claims are
denied by other IJs would lose; neither the Board nor a court
of appeals could conclude that country conditions are more
hazardous than the IJ found.
The Board has interpreted §1003.1(d)(3)(i) in a way that it
believes makes clauses (i) and (ii) harmonious by relying on
the longstanding distinctions between adjudicative and leg-‐‑
islative facts, and between historical (case-‐‑specific) facts and
those aspects of discretion or judgment that concern coun-‐‑
try-‐‑wide conditions—subjects on which the Board thinks
that the United States should be able to speak with one
voice, rather than through a cacophony of immigration
judges. The problem is that the Board’s arguments would be
better as reasons to revise the regulation than as reasons to
interpret it differently from the similar language that gov-‐‑
erns relations between federal trial and appellate courts.
Appellate courts are bound by Fed. R. Civ. P. 52(a)(6),
which says that district judges’ findings of fact must not be
set aside unless clearly erroneous. See also Anderson v. Bes-‐‑
semer City, 470 U.S. 564 (1985). Rule 52(a)(6) may have been
No. 11-‐‑3086 8
the inspiration for §1003.1(d)(3)(i). The Rule does not allow
plenary appellate review of district judges’ characterizations
based on historical facts. A finding on an “ultimate” fact (a
conclusion based on the application of legal rules to histori-‐‑
cal facts) often is treated as one of fact. See, e.g., Pullman-‐‑
Standard v. Swint, 456 U.S. 273 (1982) (whether the plaintiff is
a victim of “discrimination” is a question of fact); Icicle Sea-‐‑
foods, Inc. v. Worthington, 475 U.S. 709 (1986) (whether the
plaintiff is a “seaman” is a question of fact). When a decision
is person-‐‑specific, there is rarely a good reason for having
three judges substitute their views for the assessment of the
trial judge. See, e.g., Mars Steel Corp. v. Continental Bank N.A.,
880 F.2d 928, 933–34 (7th Cir. 1989) (en banc); Mucha v. King,
792 F.2d 602, 605–06 (7th Cir. 1986). When a decision de-‐‑
pends on the characteristics of non-‐‑litigants, however, and
establishes a rule with broad scope, the appellate role can be
more substantial. For example, in American Needle, Inc. v. Na-‐‑
tional Football League, 560 U.S. 183 (2010), the Supreme Court
gave no weight to a district judge’s conclusion that the Na-‐‑
tional Football League should be characterized as a single
firm for the purpose of antitrust law. But even that sort of
review, which concerns legal consequences, differs from an
entitlement to make an independent appellate decision on
facts just because they are “legislative” in nature.
Kaplun observed that many predictions are facts, in the
sense that they rest on subsidiary facts and can be true or
false. It gave this example: “It is likely that it will take less
than 3 hours to drive the 100 miles to grandmother’s house
next week.” 602 F.3d at 269. Likewise, a medical prediction
about whether a victim of injury will recover is factual, even
though it rests on the application of medical knowledge to
subsidiary facts. Id. at 270. These illustrations show how per-‐‑
9 No. 11-‐‑3086
son-‐‑specific circumstances (adjudicative facts) can give rise
to predictions that also are sensibly treated as facts. That is
as true when a prediction depends on country conditions as
when it depends on what happened to a particular alien. We
therefore agree with Kaplun and similar decisions.
Perhaps the Board’s view that it may make independent
decisions about predictions is a consequence of giving itself
too little leeway to find IJs’ predictions clearly erroneous. A
federal court of appeals would be inclined to think it a clear
error, correctible under Rule 52, for a district judge to say
that a 1-‐‑in-‐‑100,000 chance of death meets a more-‐‑likely-‐‑than-‐‑
not burden of persuasion. But that’s not what the Board did.
Instead it claimed a right to substitute its judgment for that
of the IJ without finding a clear error. That is a mistake under
the regulation. A court is limited to the agency’s stated
grounds of decision and cannot enforce an order on a basis
that the agency did not include among its reasons. Our task,
having corrected a legal error, is to remand to the Board ra-‐‑
ther than make our own decision. See, e.g., Gonzales v. Thom-‐‑
as, 547 U.S. 183 (2006).
To say that the regulation leaves the Board free to declare
an IJ’s findings clearly erroneous is not at all to say that it
would be appropriate for the Board to do so in this case. For
although we have mentioned so far only the statistical risk of
death for homosexuals as a group, Rosiles-‐‑Camarena con-‐‑
tends that he is at greater risk. 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
No. 11-‐‑3086 10
it hard to avoid attracting attention from persons who might
do him harm. And he stresses that injuries (and deprivations
of economic opportunities) short of death may amount to
persecution. The question for the Board on remand is thus
not whether aggregate data imply that Rosiles-‐‑Camarena is
likely to be killed, but whether the IJ clearly erred in finding
that he is more likely than not to be persecuted. That ques-‐‑
tion is for the Board in the first instance; we do not express
an opinion on it.
The petition for review is granted, and the matter is re-‐‑
manded to the Board for proceedings consistent with this
opinion.