Ojo v. Garland ( 2022 )

19-3237
Ojo v. Garland
United States Court of Appeals
for the Second Circuit
_____________________________________
August Term 2020
(Argued: December 16, 2020 Decided: February 9, 2022)
No. 19-3237
_____________________________________
OLUKAYODE DAVID OJO, AKA DAVID OLUKAYODE OJO, AKA OLUKAYODE OJO,
Petitioner,
— v. —
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, *
Respondent.
_____________________________________
Before: CHIN, BIANCO, AND MENASHI, Circuit Judges.
Olukayode David Ojo, a native of Nigeria, seeks review of a September 27,
2019 decision of the Board of Immigration Appeals affirming an April 15, 2019
decision of an immigration judge, which denied asylum, withholding of removal,
and relief under the Convention Against Torture. See In re Olukayode David Ojo,
No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444-553 (Immigr. Ct. N.Y.C.
Apr. 15, 2019).
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States Attorney
General Merrick B. Garland is automatically substituted for former Attorney General
William P. Barr as Respondent.
We grant Ojo’s petition for review and vacate the agency’s denial of Ojo’s
claims for asylum, withholding of removal, and CAT protection because those
determinations were permeated with several legal and procedural errors. First,
insofar as Ojo’s request for asylum was rejected as untimely, the agency applied
the wrong legal standard to his claim of changed circumstances and the agency’s
alternative discretionary determination failed to indicate the requisite examination
of the totality of the circumstances. Second, with respect to Ojo’s application for
withholding of removal, the agency erred when it incorrectly categorized his
federal conviction for wire fraud and identity theft as “crimes against persons,”
and concluded that they fell within the ambit of “particularly serious crimes”
without evaluating the elements of the offenses as required under the agency’s
own precedent. Finally, with respect to his CAT claim, the agency erred in
concluding that Ojo lacked a reasonable fear of future persecution or torture in
Nigeria due to his status as a criminal deportee without even addressing the
declaration of his expert supporting his claim.
Accordingly, the petition for review is GRANTED, the BIA’s decision is
VACATED, and the case is REMANDED to the BIA for further proceedings
consistent with this opinion.
JUDGE MENASHI dissents in a separate opinion.
BENJAMIN L. NELSON, Monroe County
Public Defender’s Office, Rochester,
New York, for Petitioner.
ARIC A. ANDERSON, TRIAL ATTORNEY
(Holly M. Smith, Senior Litigation
Counsel, on the brief), for Brian M.
Boynton, Acting Assistant Attorney
General, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
2
_____________________________________
JOSEPH F. BIANCO, Circuit Judge:
Petitioner Olukayode David Ojo, a native of Nigeria, seeks review of a
September 27, 2019 decision of the Board of Immigration Appeals (the “BIA”)
affirming an April 15, 2019 decision of an immigration judge (the “IJ”, together
with the BIA, the “agency”), which denied Ojo’s claims for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). See In re
Olukayode David Ojo, No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444-
553 (Immigr. Ct. N.Y.C. Apr. 15, 2019).
We grant Ojo’s petition for review and vacate the agency’s denial of Ojo’s
claims for asylum, withholding of removal, and CAT protection because those
determinations were permeated with several legal and procedural errors. First,
insofar as Ojo’s request for asylum was rejected as untimely, the agency applied
the wrong legal standard to his claim of changed circumstances and the agency’s
alternative discretionary determination failed to indicate the requisite examination
of the totality of the circumstances. Second, with respect to Ojo’s application for
withholding of removal, the agency erred when it incorrectly categorized his
federal conviction for wire fraud and identity theft as “crimes against persons,”
and concluded that they fell within the ambit of “particularly serious crimes”
3
without evaluating the elements of the offenses as required under the agency’s
own precedent. Finally, with respect to his CAT claim, the agency erred in
concluding that Ojo lacked a reasonable fear of future persecution or torture in
Nigeria due to his status as a criminal deportee without even addressing the
declaration of his expert supporting his claim.
Notwithstanding these errors, the government urges this Court to deny
review in deference to the broad discretion afforded to immigration courts in these
administrative determinations. That broad discretion, however, does not allow an
agency to apply an improper legal standard, ignore its own precedent, and fail to
assess material expert evidence in support of one of the claims. Such fundamental
defects in the agency’s reasoning in this case deprived this Court of the ability to
conduct meaningful judicial review of the agency’s exercise of its discretion, and
they do not allow us to reasonably discern and evaluate the reasons for the
agency’s decision. Moreover, when a court speculates as to how the agency would
have decided the claim if it had operated under the correct legal standard or
assumes that it considered and rejected key evidence on some unknown ground,
it improperly usurps the adjudicatory role entrusted to the agency in the first
instance by Congress and also subjects one of the most important decisions in our
4
legal system – namely, whether an individual has the right to remain in the United
States – to judicial guesswork. Our prior precedents do not support such an
approach and, instead, require remand to allow the agency to assess the factual
record under the proper legal standard and sufficiently articulate the reasons for
its discretionary decision. In doing so here, we express no view as to how the
agency should resolve these issues on the merits as they relate to Ojo’s claims.
Accordingly, the petition for review is GRANTED, the BIA’s decision is
VACATED, and the case is REMANDED to the BIA.
I. BACKGROUND
Ojo, a native and citizen of Nigeria, entered the United States on October 4,
2010, as a non-immigrant visitor for pleasure with authorization to remain for six
months, but never left.
A. Criminal Proceedings
In February 2014, Ojo was convicted of (1) conspiracy to commit wire fraud,
in violation of 18 U.S.C. §§ 1343, 1349, and (2) conspiracy to knowingly possess,
with intent to use unlawfully, identification documents, in violation of 18 U.S.C.
§ 1028(a)(3), (b)(2)(B), (c)(3)(A), (c)(3)(B), (f). 1 After early release before the
1
This Court affirmed Petitioner’s conviction in November 2015.
5
completion of his thirty-seven-month sentence, he was arrested and detained by
Immigration and Customs Enforcement in connection with these removal
proceedings. In March 2014, the Department of Homeland Security charged Ojo
with removability under Section 237(a)(1)(B) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), as an alien who, after admission, remained
in the United States for longer than permitted.
B. Application for Immigration Relief
In April 2014, Ojo filed an application for asylum, withholding of removal,
and protection under the CAT. Ojo claimed he was afraid to return to Nigeria
because, as a Christian, he would face persecution and/or torture from Boko
Haram, and as a criminal deportee, he would face persecution and/or torture from
the police and other individuals. Ojo also asserted that his computer business in
Nigeria would suffer on account of his conviction.
Ojo participated in a number of hearings in immigration court throughout
2014. He supplemented his application for relief with various exhibits to support
his assertion that, if denied relief by the agency, he would face persecution and
torture in Nigeria based on his status as a criminal deportee. In particular, through
his counsel, Ojo submitted the sworn declarations of two of his sisters that
6
articulated their concern, based upon conversations with others in the community,
that Ojo would be imprisoned and subject to torture in Nigeria as a criminal
deportee. In addition, Ojo provided news articles corroborating the practice of
Nigerian officials to detain criminal deportees. Moreover, Ojo submitted the
sworn Declaration of Basil Ugochukwu (the “Ugochukwu Declaration”). Based
upon his curriculum vitae, Dr. Ugochukwu is a Nigerian human rights lawyer and
lecturer who is an expert on the Nigerian justice system. The Ugochukwu
Declaration, after setting forth Dr. Ugochukwu’s qualifications and experience
with the Nigerian justice system, describes the mistreatment of criminal deportees
when they return to Nigeria. Specifically, Dr. Ugochukwu opined that Ojo “will
be targeted by the Nigerian police and prison officials for particularly severe abuse
because he will be a criminal deportee.” Cert. Admin. R. at 859. He further
explained that “there is a high probability that [Ojo] will be held and detained
indefinitely by the Nigerian police and prison system” where he “will face
deplorable and life-threatening conditions.” Cert. Admin. R. at 859.
7
C. The IJ’s April 15, 2019 Decision
After hearings at which Ojo testified, the IJ ruled on the merits of his claims
for immigration relief. The IJ found that Ojo was credible in his testimony, but
denied all forms of immigration relief requested.
First, with respect to Ojo’s asylum claim, the IJ determined that Ojo did not
merit an exception to the one-year bar because his purported “changed and
extraordinary circumstances” were “intentionally created by him through his own
action or inaction” in that he caused his criminal conviction to occur. Cert. Admin.
R. at 49 (citing 8 C.F.R. § 1208.4(a)(5)). The IJ also concluded that Ojo’s fear of Boko
Haram did not increase as a result of Boko Haram’s designation as a terrorist
organization, and thus he could not show changed circumstances as to his
religious persecution claim. Cert. Admin. R. at 49. As an alternative holding,
while the IJ found Ojo’s testimony credible, the IJ refused to exercise his discretion
because Ojo’s crime involved moral turpitude and denied his asylum application.
Second, the IJ held that Ojo was convicted of a “particularly serious crime,”
and thus ineligible for withholding of removal, because his conviction involved “a
crime against persons, which brings it into the ambit of a particularly serious
crime.” Cert. Admin. R. at 50. The IJ noted the facts of Ojo’s particular crimes –
8
namely, the number of victims and total loss – supported the ultimate
determination that “his conviction [for] a particularly serious crime” disqualified
him from withholding of removal. Cert. Admin. R. at 50–51. In fact, as discussed
further below, Ojo was not per se convicted of a particularly serious crime. Cert.
Admin. R. at 50.
Finally, the IJ denied CAT protection, finding that Ojo failed to meet his
burden of proof to demonstrate that he would more likely than not be tortured in
Nigeria. After noting that the IJ must consider all available evidence, the IJ relied
upon the International Religious Freedom Report and the Department of State
Country Report to reject his CAT claim based on his religion. With respect to his
claim that he would be arrested, detained, and tortured in Nigeria as a criminal
deportee, the IJ referenced Ojo’s testimony about another criminal deportee being
tortured in Nigeria and found “[i]t is speculative that the same would happen to
[Ojo].” Cert. Admin. R. at 52. Thus, without addressing any other evidence in the
record on this issue (including the Ugochukwu Declaration), the IJ concluded that
Ojo “failed to meet his high burden of proof to show that he would be tortured in
Nigeria by or with government acquiescence.” Cert. Admin. R. at 52.
9
D. The BIA’s September 27, 2019 Decision
Petitioner, appearing pro se, appealed to the BIA. He argued, inter alia, the
following: (1) the “IJ’s decision was based on the erroneous denial of the exception
to the one-year filing deadline”; (2) the IJ erred in determining his conviction was
“particularly serious” barring withholding of removal; and (3) the IJ overlooked
the Ugochukwu Declaration. Cert. Admin. R. at 41–42.
In September 2019, the BIA dismissed Ojo’s appeal. 2 The BIA affirmed the
denial of asylum on the two alternative grounds found by the IJ. In particular, the
BIA concluded that Ojo’s arrest and subsequent detention could not constitute
changed or extraordinary circumstances “because these events were caused by his
own criminal conduct.” Cert. Admin. R. at 5 (quoting 8 C.F.R. § 1208.4(a)(4)–(5)
for the proposition that the burden rests with the applicant to establish that the
circumstances were not created by him). Moreover, the BIA observed that the
applicant for asylum bears the burden of establishing that a favorable exercise of
discretion is warranted and that Ojo did not “meaningfully challenge[]” the IJ’s
discretionary denial. Cert. Admin. R. at 5. As to the withholding of removal, the
2
Although the September 2019 decision by the BIA also addresses Ojo’s arguments in
connection with a prior IJ’s July 17, 2018 decision finding him removable, this opinion
confines its summary of the BIA’s decision to the rulings and findings relevant to the
instant appeal.
10
BIA found that the IJ “examined the individualized characteristics of [Ojo’s]
offenses and determined that – based on the nature of the convictions and the
underlying circumstances of the case – [Ojo] had been convicted of a particularly
serious crime,” Cert. Admin. R. at 6 (observing that the IJ accounted for the type
of crimes, the number of victims, and the restitution owed), but did not comment
on the categorization of his conviction as including a crime against persons.
Finally, with respect to the CAT claim, the BIA stated that “the record reflects that
the Immigration Judge used the correct standard of review, reviewed the entire
record, and did not clearly err in making his determination that it is not more likely
than [not] that [Ojo] would be tortured if removed to Nigeria.” Cert. Admin. R. at
7.
This appeal followed.
II. DISCUSSION
A. The Standard of Review
The standards of review are well established. Where, as here, “the BIA
adopt[s] and affirm[s] the IJ’s decision, we review the two decisions in tandem.”
Ruqiang Yu v. Holder, 693 F.3d 294, 297 (2d Cir. 2012). We review all questions of
law, including the application of law to facts, de novo. Scarlett v. Barr, 957 F.3d 316,
11
326 (2d. Cir. 2020). In contrast, we apply the deferential substantial evidence
standard of review to the agency’s factual findings, Islam v. Gonzales, 469 F.3d 53,
55 (2d Cir. 2006); that is, we uphold the agency’s factual findings if “they are
supported by ‘reasonable, substantial and probative evidence in the record,’”
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (quoting Lin Zhong v. U.S.
Dep’t of Just., 480 F.3d 104, 116 (2d Cir. 2007)). That standard requires “a certain
minimum level of analysis from the IJ and BIA, as well as some indication that the
IJ considered material evidence supporting a petitioner’s claim.” Manning v. Barr,
954 F.3d 477, 484 (2d Cir. 2020) (quoting Castro v. Holder, 597 F.3d 93, 99 (2d Cir.
2010)). “This Court will vacate and remand for new findings . . . if the agency’s
reasoning or its factfinding process was sufficiently flawed.” Id. (internal
quotation marks omitted); see also Beskovic v. Gonzales, 467 F.3d 223, 225 (2d Cir.
2006) (“When the BIA or IJ has failed to apply the law correctly, we retain
substantial authority to vacate BIA or IJ decisions and remand for consideration
or rehearing.” (internal quotation marks omitted)). In conducting this analysis, we
recognize that “a reviewing court must ‘uphold’ even ‘a decision of less than ideal
clarity if the agency’s path may be reasonably discerned.’” Garland v. Ming Dai,
12
141 S. Ct. 1669, 1679 (2021) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974)).
B. Exhaustion
As a threshold matter, although the government concedes that Ojo
adequately raised the argument that is the subject of this appeal with respect to his
CAT claim (i.e., the failure to consider and address the Ugochukwu Declaration),
the government contends that Ojo failed to exhaust the following arguments that
he has raised with respect to his other claims: (1) Ojo’s argument that his
conviction was a changed circumstance warranting excusal of the one-year bar to
the filing of his asylum claim; (2) Ojo’s challenge to the IJ’s refusal to exercise
discretion as to his asylum claim; and (3) Ojo’s assertion that the agency erred
when it failed to analyze the elements of his offenses before reviewing the facts
and circumstances particular to his conviction. We disagree.
Before a petitioner can seek judicial review of his removal decision, the INA
requires that he exhaust all administrative remedies available to him. 8 U.S.C.
§ 1252(d) (“A court may review a final order of removal only if . . . (1) the alien has
exhausted all administrative remedies available to the alien as of right . . . .”). We
have emphasized that “we construe ‘generously’” an applicant’s pro se brief to the
13
agency. Steevenez v. Gonzales, 476 F.3d 114, 118 (2d Cir. 2007). Moreover, “we have
never held that a petitioner is limited to the exact contours of his argument below”;
rather, the exhaustion requirement is satisfied when the issue raised on appeal is
either a “specific, subsidiary legal argument[]” or “an extension of [an] argument
. . . raised directly before the BIA.” Gill v. I.N.S., 420 F.3d 82, 86 (2d Cir. 2005)
(internal quotation marks omitted); accord Lin Zhong, 480 F.3d at 122. In addition,
where the BIA addressed a claim not raised on appeal, the claim may be deemed
exhausted and reviewed by this Court. See Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d 289, 296–97 (2d Cir. 2006); see also Gashi v. Holder, 702 F.3d 130, 136 (2d
Cir. 2012) (rejecting the government’s argument that the applicant forfeited a
particular claim because he “did not explicitly raise this point in his brief to the
BIA” and “the BIA chose nonetheless to address the issue in its decision and relied
on an incorrect legal standard in making its decision”).
Before the BIA, Ojo contended that the IJ erred when denying the exception
to the one-year deadline for his asylum claim and when finding Ojo’s conviction
to be particularly serious as to his application for withholding of removal.
Although Ojo did not explicitly note that he was challenging the discretionary
denial of asylum, he did raise a number of challenges to the IJ’s determinations
14
surrounding his convictions and also recounted how the IJ ignored favorable
evidence. Thus, the challenges that he raises now are both “specific, subsidiary
legal arguments” and “extension[s] of argument[s] . . . raised directly before the
BIA.” Gill, 420 F.3d at 86 (internal quotation marks omitted). Moreover, the BIA
actually reviewed and decided the various components of the IJ’s decision that
cover the specific challenges being raised on this appeal, including the “changed”
circumstance analysis, the discretionary denial of asylum, and the application of
the “particularly serious crime” standard. See Cert. Admin. R. at 5–6 (“Contrary
to the respondent’s arguments on appeal, we agree with the Immigration Judge’s
determination that his arrest and subsequent detention do not constitute changed
or extraordinary circumstances . . . . We also affirm the third Immigration Judge’s
decision to deny the respondent’s application for asylum in the exercise of
discretion . . . . [T]he Immigration Judge examined the individualized
characteristics of the respondent’s offenses and determined that – based on the
nature of the convictions and the underlying circumstances of the case – the
15
respondent had been convicted of a particularly serious crime.” (emphasis
added)). 3
Under these circumstances, especially in light of Ojo’s pro se status before
the BIA and the agency’s adjudication of the claims at issue here, we find that the
record is sufficient to demonstrate exhaustion below of the arguments raised in
this appeal. See Adams v. Holder, 692 F.3d 91, 96 n.2 (2d Cir. 2012) (rejecting the
government’s argument that the pro se applicant failed to exhaust an issue before
the BIA where the applicant “implicitly made the point” through another
argument and the BIA decided the issue).
C. Asylum
“To establish eligibility for asylum, a petitioner must show that he satisfies
the statutory definition of a ‘refugee,’ i.e., that he has suffered past persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion, or that he has a well-founded fear of future persecution on one
of these grounds.” Wu Zheng Huang v. I.N.S., 436 F.3d 89, 94 (2d Cir. 2006). Under
3Even though the BIA affirmed the discretionary denial of asylum based on its view that
Ojo had not “meaningfully challenged” that decision, Cert. Admin. R. at 5 (emphasis
added), we conclude that Ojo’s discussion in his Notice of Appeal regarding favorable
evidence that was ignored by the IJ as to his conviction and the circumstances in Nigeria
was a meaningful challenge to all of the denied grounds for relief, including the
discretionary denial.
16
8 U.S.C. § 1158(a)(2)(B), an alien is ineligible for asylum “unless the alien
demonstrates by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the United States.” An
application submitted outside the deadline may be considered, however, “if the
alien demonstrates . . . either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay,” 8 U.S.C. § 1158(a)(2)(D) (emphasis added),
and the application is filed within a reasonable time period given the changed or
extraordinary circumstances, 8 C.F.R. § 1208.4(a)(4)(ii), (5). Our jurisdiction to
review findings regarding the timeliness of an asylum application and the
circumstances excusing untimeliness is limited to “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D); see id. § 1158(a)(3).
Here, Ojo contends that the agency committed legal error by incorporating
a requirement for demonstrating “extraordinary circumstances” for the delay in
filing – namely, that the delay was not created by him – to the separate standard
for “changed circumstances” affecting his eligibility for asylum. Ojo had
independently asserted, apart from any explanation for the delay in filing, that
“changed circumstances” existed based upon his new status as a criminal deportee
17
and Boko Haram’s increased violence against Christians like himself. We have
jurisdiction to consider this question of law, Khan v. Gonzales, 495 F.3d 31, 35 (2d
Cir. 2007), and we agree with Ojo that the agency applied the incorrect legal
standard in assessing his argument regarding changed circumstances.
Section 1208.4(a)(5) of the agency’s regulations provides that, in the context
of demonstrating extraordinary circumstances for the delay, “[t]he burden of proof
is on the applicant to establish . . . that the circumstances were not intentionally
created by the alien through his or her own action or inaction.” 8 C.F.R.
§ 1208.4(a)(5). However, no such requirement exists for the alternative grounds of
demonstrating changed circumstances affecting his eligibility for asylum. See id.§ 1208.4(a)(4) (changed circumstances). Notwithstanding this clear distinction in
the applicable legal standard, the IJ found that Ojo could not meet his burden
under the exception for either changed or extraordinary circumstances because he
caused his criminal conviction to occur. This was clear error as it related to the
“changed circumstances” standard. 4 The BIA repeated that same error in
4
The government argues that the IJ’s late-filing determination could still be upheld
because he “did not rely on [the ‘intentionally created’] language when he rejected Ojo’s
claim that an increase in violence in Nigeria constituted changed circumstances.”
Appellee’s Br. at 24. However, the IJ did rely upon this erroneous, non-existent
requirement in rejecting Ojo’s other argument (separate from the alleged increased
18
upholding the IJ’s decision. See Cert. Admin. R. at 5 (“Contrary to the respondent’s
arguments on appeal, we agree with the Immigration Judge’s determination that
his arrest and subsequent detention do not constitute changed or extraordinary
circumstances because these events were caused by his own criminal conduct.”).
The government does not dispute that, unlike the “extraordinary
circumstances” standard, the applicable regulation does not preclude
consideration of “changed circumstances” that arise from the applicant’s own
conduct. See Appellee’s Br. at 23–24 (“Respondent does not disagree that the
regulatory language underlying Ojo’s argument – ‘that the circumstances were not
intentionally created by the alien through his or her own action or inaction’ – is
included in 8 C.F.R. § 1208.4(a)(5) and not in 8 C.F.R. § 1208.4(a)(4).”). Indeed, the
government acknowledges that the BIA’s decision “might have been a little
clearer” regarding the applicable standard, but nevertheless asserts that “[t]he
Board’s decision is clear enough.” Id. at 24. The only thing that is clear to this
Court is that the BIA’s decision is based on the wrong legal standard for changed
circumstances and the only reason given by the BIA for sustaining the IJ’s decision
violence against Christians by Boko Haram) that his criminal conviction and targeting as
a criminal deportee constituted “changed circumstances.” Therefore, the legal error was
the sole basis for rejecting at least one of his independent grounds for “changed
circumstances.”
19
– that is, that the applicant caused his changed circumstances – does not preclude
consideration of such circumstances. Accordingly, the “changed circumstances”
analysis contains an error of law that cannot form the basis of the denial of Ojo’s
asylum claim on timeliness grounds.
To be sure, we recognize that criminal conduct is certainly material to the
merits of the asylum determination itself. See Wu Zheng Huang, 436 F.3d at 98.
However, we more narrowly hold that the fact that the changed circumstances
were created by the applicant’s conduct does not act as an automatic bar to
consideration of those changed circumstances by the BIA on the merits.
Notwithstanding the agency error, the dissent argues that Ojo is still ineligible
because “criminal deportees are not a social group entitled to asylum,” post at 5
n.1, 9, 5 and that such additional reasoning “is already reasonably discernable from
the agency’s opinions,” id. at 8 (internal quotation marks omitted). The sole
ground, however, provided by the agency for finding no “changed circumstances”
that could affect eligibility was that Ojo caused the changed circumstances. The
government does not even raise this alternative ground on appeal. In short, we
5The dissent’s observation that “criminal deportees are not a social group entitled to
asylum” is, of course, true, and we do not suggest otherwise. At the same time, as we
discuss below, it is fundamental that not all convictions preclude relief.
20
respectfully disagree that any other reason for rejecting the asylum claim can be
reasonably discerned from this record based upon the agency’s own explanation
of its decision. 6 Under well-established law, Ojo has a right to know why his claim
was barred by the agency as untimely, as opposed to this Court substituting its
own alternative ground. Therefore, we conclude that this legal error requires
remand.
We recognize that remand is not required if it would be futile such as where
the agency provided alternative grounds for denying relief uninfected by the
error, the error is tangential to the ultimate ruling, or overwhelming untainted
evidence supported the finding. Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 338
(2d Cir. 2006). However, we decline to uphold the agency’s decision on a separate
legal ground not relied upon by the agency (nor argued by the government on
appeal), especially where the BIA also failed to address the IJ’s ruling regarding
“changed circumstances” on the different ground related to Boko Haram. See
Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (“[R]espondent argues [in the
alternative] that the incidents to which [the petitioners] testified are not
6
Moreover, the BIA entirely failed to address Ojo’s separate argument that he showed
changed circumstances related to his claim that Boko Haram would target him as a
Christian.
21
persecution as a matter of law. We, however, must review the findings the IJ
actually made and not seek out bases for denying review on which the IJ did not
rely.”); Passi v. Mukasey, 535 F.3d 98, 100 (2d Cir. 2008) (“[O]ur review is confined
to those reasons for denying relief that were adopted by the BIA.”).
The government argues that remand is still unwarranted because the
agency’s alternative denial of asylum as a matter of discretion is independently
dispositive. After an applicant demonstrates eligibility for asylum, “the decision
whether to grant a particular application is . . . within the discretion of the Attorney
General.” Diallo v. I.N.S., 232 F.3d 279, 284 (2d Cir. 2000) (internal quotation marks
omitted). However, we have similar concerns regarding the IJ’s discretionary
denial because there is no indication that the IJ examined “the totality of the
circumstances” or balanced “favorable and adverse factors.” Wu Zheng Huang, 436
F.3d at 98 (“[T]he danger of persecution will outweigh all but the most egregious
adverse factors. . . . Other favorable considerations include general humanitarian
reasons, . . . such as his or her age, health, or family ties.” (internal quotation marks
omitted)). Although we are deferential in our review of an agency decision, the
agency abuses its discretion when it fails to conduct the requisite legal analysis
22
and instead provides a conclusory statement. See Ke Zhen Zhao v. U.S. Dep't of Just.,
265 F.3d 83, 93 (2d Cir. 2001).
On its face, the April 15, 2019 decision reflects that the only factor the IJ
considered was Ojo’s criminal history. As noted above, the IJ certainly may
consider criminal convictions as one factor, Wu Zheng Huang, 436 F.3d at 100 n.12,
and there is no need to evaluate every factor enunciated by case law, see, e.g., Zuh
v. Mukasey, 547 F.3d 504, 510–11 (4th Cir. 2008); but, even when an applicant has
been convicted of a crime involving moral turpitude, we still require a “balancing
of the equities for and against a petitioner,” Wu Zheng Huang, 436 F.3d at 100. Not
only did the IJ not mention any factor other than the criminal conviction, the IJ did
not reference the legal standard requiring consideration of mitigating factors. In
fact, the IJ found Ojo’s testimony to be credible, but also did not discuss that factor
in its discretionary denial. In short, we have emphasized that “[d]espite our
generally deferential review of IJ and BIA opinions, we require a certain minimum
level of analysis from the IJ and BIA opinions denying asylum, and indeed must
require such if judicial review is to be meaningful.” Poradisova v. Gonzales, 420 F.3d
70, 77 (2d Cir. 2005). The agency’s analysis for the discretionary denial fails to
meet that minimum level of analysis as it relates to the legal standard and
23
consideration of the relevant factors. 7 See Wu Zheng Huang, 436 F.3d at 99 (vacating
IJ’s denial of asylum and remanding because the IJ “entirely failed to undertake
the examination of the totality of the circumstances as mandated by the case law”).
The above-referenced precedent holds that the failure to provide sufficient
reasoning under the proper legal standard is an abuse of discretion. And, because
the failure to provide sufficient reasoning is contrary to our well-settled precedent
articulated in numerous other published decisions such as Wu Zheng Huang,
Poradisova, and Ke Zhen Zhao, it is also “manifestly contrary to the law.” 8 U.S.C. §
1252(b)(4)(D). 8 In any event, remand is independently required because the
procedural error identified with respect to the withholding of removal claim
(discussed infra) – that is, the analysis regarding Ojo’s conviction constituting a
7
In addition to the danger of persecution, Ojo raised a series of mitigating factors to
support the granting of asylum in the exercise of discretion, including the following:
(1) he “came to [the United States] to visit his sisters”; (2) “[u]pon arrival, he began
volunteering at his sister Sandra’s food bank”; (3) “[h]e has been a reliable family member
and church volunteer”; (4) “Mr. Ojo does not represent a danger to the community”
because he “has never been charged with any violent offenses and there is nothing in his
record to indicate a history of violence”; and (5) “while Mr. Ojo was in detention, he
earned his GED and various other certificates in an effort to better himself.” Cert. Admin.
R. at 1296 (citations omitted).
8The dissent’s contention, post at 12 n.5, that there is some category of cases in which an
agency could abuse its discretion by providing insufficient reasoning (or perhaps no
reasoning at all), but still have its decision upheld because it is somehow not also
“contrary to the law,” is legally untenable under our case authority.
24
“particularly serious crime” – could, depending upon how that issue is resolved
on remand, impact the discretionary analysis regarding the “changed
circumstances” on the asylum claim.
In sum, with respect to the denial of asylum on either independent ground
– the one-year statutory bar or the IJ’s exercise of discretion – we direct the agency
on remand to fully consider the arguments and evidence under the proper legal
standards and explain its reasoning under such standards.
D. Withholding of Removal
Ojo argues that the agency failed to follow its own precedent regarding the
legal framework for determining whether his federal convictions were
“particularly serious crimes” that barred him from withholding of removal. We
agree.
A noncitizen is barred from withholding of removal if he has “been
convicted by a final judgment of a particularly serious crime.” 8 U.S.C.
§ 1231(b)(3)(B)(ii). Ojo’s conviction was not per se particularly serious because he
was sentenced to less than five years’ imprisonment. Id. § 1231(b)(3)(B)(iv). If the
crime is not per se particularly serious, the agency “examine[s] the nature of the
conviction, the type of sentence imposed, and the circumstances and underlying
25
facts of the conviction” to determine if it is particularly serious. In re N-A-M-, 24
I. & N. Dec. 336, 342 (B.I.A. 2007); see also Nethagani v. Mukasey, 532 F.3d 150, 154
n.1, 155 (2d Cir. 2008) (discussing the factors to be considered and accepting the
BIA’s interpretation that a particularly serious crime determination no longer
requires a separate danger to the community analysis).
In making that assessment, the agency’s own precedent requires a two-step
analysis. First, the adjudicator considers whether the elements of the offense
“potentially bring the crime into a category of particularly serious crimes.” In re
N-A-M-, 24 I. & N. Dec. at 342. “[C]rimes against persons are more likely to be
particularly serious than are crimes against property.” Nethagani, 532 F.3d at 155.
“If the elements of the offense do not potentially bring the crime into a category of
particularly serious crimes, the individual facts and circumstances of the offense
are of no consequence, and the alien would not be barred from a grant of
withholding of removal.” In re N-A-M-, 24 I. & N. Dec. at 342. However, “once
the elements of the offense are examined and found to potentially bring the offense
within the ambit of a particularly serious crime, all reliable information may be
considered in making a particularly serious crime determination, including the
conviction records and sentencing information.” Id. The ultimate decision to
26
categorize an offense as a particularly serious crime after weighing relevant facts
is a matter of discretion. However, contrary to the government’s assertions,
whether the IJ applied the correct legal standard in making his determination is a
matter of law, which we have held is reviewable by this Court. See Nethagani, 532
F.3d at 154–55.
We conclude that the agency failed to apply the correct legal standard at
step one of the analysis in its determination that Ojo’s conviction involved a
particularly serious crime. More specifically, the IJ’s step-one analysis, at best, was
limited to its conclusion that “[Ojo] was alleged to have committed a crime against
persons, which brings it into the ambit of a particularly serious crime.” Cert.
Admin. R. at 50. However, it is axiomatic that conspiracy to commit wire fraud
and identity theft are “crimes against property,” not “crimes against persons.” As
defined by Black’s Law Dictionary, “crimes against persons” constitute “[a]
category of criminal offenses in which the perpetrator uses or threatens to use
force,” such as “murder, rape, aggravated assault, and robbery,” while “crimes
against property” fall within “[a] category of criminal offenses in which the
perpetrator seeks to derive an unlawful benefit from – or do damage to – another’s
27
property without the use or threat of force,” such as “burglary, theft, and arson.” 9
Black’s Law Dictionary (11th ed. 2019). Ojo’s crimes of conspiracy to commit wire
fraud and conspiracy to possess false identification documents do not have as an
element use or threatened use of force. See 18 U.S.C. §§ 1028(a)(3), 1343. The
government suggests that “it is not clear that fraud and identity theft offenses
cannot fairly be called crimes against persons” based upon the fact that identity
theft is a threat to the community. Appellee’s Br. at 33. That definition of a “crime
against persons” is inconsistent with the plain meaning of that term, as well as the
use of that term by courts, in every other context. See, e.g., Zhong Qin Yang v.
Holder, 570 F. App’x 381, 384–85 (5th Cir. 2014) (per curiam) (observing that
conspiracy to commit access device fraud and aggravated identity fraud did not
constitute “crimes against persons”). We are not aware of any court that has
9
This dichotomy reaches far beyond the immigration context and falls along similar
definitions in all areas of law. Compare United States v. Trejo-Galvan, 304 F.3d 406, 407 (5th
Cir. 2002) (“[A] ‘crime against the person’ is an offense, that by its nature, involves a
substantial risk that the offender will intentionally employ physical force against another
person.” (emphasis added)), with United States v. Collins, 854 F.3d 1324, 1331 (11th Cir.
2017) (holding “that various types of fraud, and their attendant false or misleading
representations, are offense[s] against property” and noting that crimes against property
“include[] offenses in which the defendant intends to damage another’s property, . . .
situations where the defendant seeks to derive an unlawful benefit from another’s
property or otherwise deprive a person of his property, therefore acting in opposition to
or contrary to the classic property rights of ownership and possession” (internal
quotation marks omitted)).
28
categorized wire fraud or identity theft as a “crime against persons.” 10 In short,
there is no indication in the agency’s decisions that it intended to adopt this novel
and virtually limitless definition of a “crime against persons.” Instead, the
decision simply reflects a legal error.
Although the IJ also proceeded to quote from Ojo’s indictment, the
indictment was not then analyzed under step one; rather, the quote appears to be
– along with the reference to the judgment of conviction and restitution order –
part of the “totality of the circumstances” analysis at step two. Even assuming
arguendo that the quote to the indictment could be construed as an implicit part of
the step-one analysis, the erroneous classification of Ojo’s crimes as a “crime
against persons” still would have infected that analysis because the IJ cited case
law from this Court for the proposition that “[c]rimes against persons are more
likely to be particularly serious than are crimes against property,” Cert. Admin. R.
10The dissent similarly attempts to explain away the use of “crimes against persons” by
suggesting that the IJ may have used the term as a colloquial phrase “to emphasize that
Ojo’s economic crimes should be taken seriously because those crimes have real victims.”
Post at 22. That interpretation requires us to presume that the agency was using this legal
term of art in some colloquial manner even though the phrase is cited by the IJ and the
BIA in this case as part of its statement of law. We decline to adopt that speculative and
implausible reading. Indeed, the dissent acknowledges that “crimes against persons” is
a “term of art” and concedes the possibility that the IJ may have incorrectly used that
term. Id. at 23.
29
at 50 (citation omitted), and thus would have been analyzing and weighing the
elements through that flawed lens.
Moreover, this definitional error was not corrected by the BIA. Although it
correctly cited the two-part legal framework, the BIA skipped immediately to its
explanation for agreeing with the IJ’s step-two analysis, without analyzing step
one at all. 11 See Cert. Admin. R. at 6 (“[T]he Immigration Judge examined the
individualized characteristics of the respondent’s offenses and determined that –
based on the nature of the convictions and the underlying circumstances of the
case – [Ojo] had been convicted of a particularly serious crime.”). Hence, as a
result of its decision to summarily categorize Ojo’s offenses as “crimes against
persons,” contrary to law, the agency failed to adequately explain its rationale for
finding, at step one, that Ojo’s convictions were potentially in the ambit of
particularly serious crimes.
The government’s attempts to have the Court overlook this legal error are
unpersuasive. First, the government notes that federal courts have routinely
11
We also note that, in articulating the legal standard, the BIA (like the IJ) cited case
authority that “[c]rimes against persons are more likely to be categorized as ‘particularly
serious crimes.’” Cert. Admin. R. at 6 (citation omitted). Therefore, even if the BIA
implicitly considered the elements at step one, that citation suggests that the BIA was
operating under the same legal error that impacted the IJ – namely, the erroneous view
that Ojo’s criminal convictions were “crimes against persons.”
30
upheld findings by the agency that a wire fraud offense is a particularly serious
offense. Second, the government argues that a categorical approach is not
required under the law at the first step of the analysis. Both arguments miss the
point.
We recognize that the agency on remand might reasonably consider crimes
against property, such as fraud or identity theft, particularly serious. See, e.g.,
Arbid v. Holder, 700 F.3d 379, 382 (9th Cir. 2012) (mail fraud); Zhong Qin Yang, 570
F. App’x at 384–85 (device fraud and identity theft); Valerio-Rameriz v. Sessions, 882
F.3d 289, 299 (1st Cir. 2018) (identity theft). The issue here, however, is not
whether the agency can reach such a conclusion, but rather its failure to follow its
own precedent which sets forth the framework under which such a determination
should be made. See Johnson v. Ashcroft, 378 F.3d 164, 171 (2d Cir. 2004) (The
agency “acts arbitrarily and unlawfully when it simply ignores established
holdings.”).
Additionally, although not requiring a categorical match to any particular
statute or to any list of enumerated criteria, the BIA’s own precedent requires the
first step of the analysis to consist of an elements-only examination of the crime at
issue to determine whether such elements “potentially bring the crime into a
31
category of particularly serious crimes.” See In re N-A-M-, 24 I. & N. Dec. at 342;
see also Luziga v. Att'y Gen., 937 F.3d 244, 254 (3d Cir. 2019) (remanding because
“rather than considering the elements of conspiracy to commit wire fraud, the BIA
described a hybrid of the elements and facts of [petitioner’s] conviction” to decide
that petitioner’s “offense potentially f[e]ll within the ambit of a particularly serious
crime”).
The dissent asserts that “[t]his two-step procedure is based on the court’s
own interpretation of Matter of N-A-M-,” post at 17, and that we are failing to defer
to the agency’s interpretation of its own precedent, see id. at 22. However, here,
the IJ quoted the applicable language from In re N-A-M-, and similarly concluded
(contrary to the dissent’s alternative interpretation) that it requires a two-step
process, with the first step consisting of an elements-only analysis. See Cert.
Admin. R. at 50 (“The Immigration Judge should first determine whether ‘the
elements of the offense . . . potentially bring the crime into a category of
particularly serious crimes.’ If not, ‘the individual facts and circumstances of the
offense are of no consequence,’ and the applicant is not barred from asylum.”
(quoting In re N-A-M-, 24 I. & N. Dec. at 342)). The BIA quoted the standard in
similar language. Cert. Admin. R. at 6. However, having articulated the two-step
32
analysis demanded by the agency’s own precedent, the IJ then failed to conduct a
step-one analysis. In remanding, we simply are requiring the agency to follow its
own interpretation of its precedent, which was clearly set forth in In re N-A-M-.
See 24 I. & N. Dec. at 342. 12
To the extent the IJ even arguably purported to follow its precedent, the
analysis was based on a legally erroneous premise regarding “crimes against
persons,” and the BIA failed to address this requisite step at all. Despite the
government’s apparent suggestion that “acknowledg[ing] the steps of N-A-M-”
suffices, Appellee’s Br. at 30, compliance with In re N-A-M- required more than
mere “acknowledge[ment]”; it required the actual undertaking of the necessary
12The dissent cites two out-of-circuit decisions, as well as an unpublished decision from
this Court, to suggest that our reading of In re N-A-M- is unusual. Post at 18–20.
However, in Anaya-Ortiz v. Holder, the petitioner did not challenge the IJ’s particularly
serious crime determination with respect to the elements of the crime. 594 F.3d 673 (9th
Cir. 2010). Whether the agency followed step one of In re N-A-M- was not raised, and so
the Ninth Circuit did not address the issue. In Mbendeke v. Garland, we upheld the
agency’s application of In re N-A-M, because “[t]he IJ’s decision stated the threshold
question and the elements of the offense of conviction before considering the individual
factors” and there was “no indication that the agency misapprehended the offense
elements.” No. 19-19766, 2021 WL 2026082, at *1 & n.1 (2d Cir. 2021). Here, in contrast
to Mbendeke, the IJ did not separately state the elements before considering the individual
factors. Also, unlike in Mbendeke, the IJ misapprehend the elements by classifying the
offense as a “crime against persons.” Similarly, although the dissent cites Bare v. Barr, the
Ninth Circuit distinguished Luziga on the ground that, unlike here, the record did not
suggest that the agency misapprehended the elements in any way. 975 F.3d 952, 963 (9th
Cir. 2020).
33
evaluation devoid of any legal error. See Luziga, 937 F.3d at 254 (remanding
because, although the BIA “cited N-A-M- and even stated that it would consider
the ‘elements’ of [petitioner’s] offense,” it did not complete the requisite analysis).
Accordingly, the agency’s failure to follow its own precedent for
determining whether Ojo’s conviction involved a “particularly serious crime”
requires remand of the application for withholding of removal.
E. CAT Protection
To receive protection under the CAT, an applicant must “establish that it is
more likely than not that he . . . would be tortured if removed.” 8 C.F.R.
§ 1208.16(c)(2). “Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person . . . at the
instigation of, or with the consent or acquiescence of, a public official acting in an
official capacity or other person acting in an official capacity.” Id. § 1208.18(a)(1).
As relevant here, the IJ denied CAT protection, finding that Ojo “failed to show
that he would more likely than not be tortured in Nigeria as a criminal deportee”
because it was speculative that he would face persecution by the police. Cert.
Admin. R. at 52. In dismissing the appeal, the BIA essentially repeated the IJ’s
finding that Ojo’s assertion was “speculative.” Cert. Admin. R. at 7. Ojo argues
34
that the agency erred when it failed to analyze unrebutted evidence, including an
expert declaration, that was material to his claim. We agree.
As noted supra, to facilitate meaningful judicial review of a decision by the
agency, we “require a certain minimum level of analysis from the IJ and BIA
opinions.” Poradisova, 420 F.3d at 77 (collecting cases). We therefore expect “some
indication that the IJ considered material evidence supporting a petitioner’s
claim.” Id. (citing Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005)); see also
Tanusantoso v. Barr, 962 F.3d 694, 699 (2d Cir. 2020) (holding that the agency “must
address a petitioner’s primary evidence, particularly when that evidence is
credible and points toward a conclusion contrary to that reached by the [agency]”).
“[F]ailure to consider material evidence in the record is ground for remand.”
Delgado v. Mukasey, 508 F.3d 702, 709 (2d Cir. 2007); see also Scarlett, 957 F.3d at 329–
31 (remanding where the agency did not appear to give reasoned consideration of
all relevant evidence); Yan Chen, 417 F.3d at 275 (remanding for failure to consider
country conditions reports); Ramsameachire v. Ashcroft, 357 F.3d 169, 186 (2d Cir.
2004) (remanding “because the INS’s regulations require the agency to consider
all evidence relevant to the CAT claim”).
35
The IJ concluded that Ojo’s claim that he would face torture if returned to
Nigeria on account of his status as a criminal deportee was “speculative,” Cert.
Admin. R. at 52, but, in reaching that decision, the IJ failed to address probative
and potentially dispositive evidence supporting Ojo’s claim. More specifically, the
agency did not address Ojo’s other evidence, including an expert declaration from
Dr. Ugochukwu, related to his claim that he would face torture as a criminal
deportee. Neither the IJ nor the BIA mentioned any evidence beyond Ojo’s
“credible” testimony, and so it is entirely unclear whether the agency even
considered, inter alia, the unrebutted Ugochukwu Declaration in denying Ojo’s
CAT claim. Such evidence, which described the detention of criminal deportees
and the squalid conditions and severe abuse faced by the same, may have
rendered Ojo’s claim non-speculative and supported an agency finding that Ojo
was likely to suffer persecution as a result of his status as a criminal deportee.
The government argues that the IJ should be presumed to have considered
and reviewed the declaration because, in March 2015, the IJ had “relied on the
report as a reason why the case should be adjourned until after Ojo’s criminal
appeal was resolved.” Appellee’s Br. at 38. This argument is unpersuasive. First,
we note that, by the time Ojo’s case was returned to the IJ, over four years had
36
passed since the IJ had referenced the report. Thus, we question whether it is
reasonable to presume, notwithstanding the complete silence regarding this
material evidence in the decision, that the IJ had recalled the declaration from over
four years earlier and had tacitly dismissed what he had earlier referred to as “on
the papers, [a] good expert opinion,” Cert. Admin. R. at 285, for some
unarticulated reason. The fact that, as the government and the dissent contend,
the written decision contains a generalized statement that the IJ “familiarized
himself with the entire record of proceedings,” Cert. Admin. R. at 47, provides
insufficient support to such an awareness of this particular piece of evidence under
these circumstances. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011) (“When
nothing in the record or the BIA’s decision indicates a failure to consider all the
evidence, a general statement that [the agency] considered all of the evidence
before [it] may be sufficient. But, where there is any indication that the BIA did
not consider all of the evidence before it, a catchall phrase does not suffice, and the
decision cannot stand. Such indications include misstating the record and failing
to mention highly probative or potentially dispositive evidence.” (alterations in
original) (internal quotation marks and citation omitted)).
37
More importantly, even assuming such awareness and consideration of the
expert declaration could be presumed, the agency is not excused from providing
its reasoning for rejecting that material evidence. See Guan Shan Liao v. U.S. Dep’t
of Just., 293 F.3d 61, 68 (2d Cir. 2002) (“When the Board decides a case, as here,
using summary language with little explanation for the conclusion reached,
intelligible appellate review is made difficult.”). The IJ’s failure to provide any
explanation regarding the expert declaration is even more concerning here
because he had previously described it (years earlier) as a “good expert opinion”
and also found Ojo’s testimony to be credible at the hearing. 13 In such
circumstances, we are not permitted to guess at the reasons for rejecting it and
then analyze the sufficiency of those possible reasons. A matter as important as
whether an individual should remain in the United States because his or her
removal would result in torture cannot be left to such speculation and judicial
guesswork. See, e.g., Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir. 1992) (“When
faced with cursory, summary or conclusory statements from the BIA, we cannot
presume anything other than such an abuse of discretion, since the BIA’s denial of
13Notwithstanding the IJ’s favorable characterization of the expert opinion, the dissent
excuses the agency’s failure to address it because, in the dissent’s own judgment, it “added
nothing to the arguments the agency already considered and rejected,” post at 27–28, and
was “not probative,” post at 33 n.24.
38
relief can be affirmed only on the basis articulated in the decision . . . and we cannot
assume that the BIA considered factors that it failed to mention in its decision.”
(internal quotation marks omitted)); see also Baharon v. Holder, 588 F.3d 228, 233
(4th Cir. 2009) (“We are acutely aware that our job as a reviewing court is not to
reweigh the evidence before the IJ. It is, however, our responsibility to ensure that
unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.
Those who flee persecution and seek refuge under our laws have the right to know
that the evidence they present of mistreatment in their home country will be fairly
considered and weighed by those who decide their fate.” (citations omitted)).
The government relatedly argues that, even if the Ugochukwu Declaration
was overlooked, the petition should still be denied because Ojo “does not offer an
alternative argument that, all evidence being considered, a reasonable factfinder
would be compelled to draw the inferences he advances.” Appellee’s Br. at 39.
The dissent also relies heavily on this argument regarding the applicable standard,
and suggests it is “quite something” that we ignore it. Post at 28–29 n.21. That
standard, however, is inapplicable in this context. If the agency overlooks material
evidence supporting a petitioner’s claim or fails to provide sufficient reasoning for
the reviewing court to understand the basis for rejecting such evidence, a
39
petitioner is entitled to a remand without showing that such evidence would
compel a decision in petitioner’s favor. See Poradisova, 420 F.3d at 77. In Manzur
v. U.S. Department of Homeland Security, 494 F.3d 281 (2d Cir. 2007), we explained:
This Court . . . will not hesitate to vacate and remand where the BIA
or IJ analysis is insufficient to determine whether the correct legal
standard was applied. Such defects are not excused by the fact that a
hypothetical adjudicator, applying the law correctly might also have
denied the petition for asylum. This Court will vacate BIA
conclusions, as to the existence or likelihood of persecution, that a
perfectly reasonable fact-finder could have settled upon, insofar as the
BIA either has not applied the law correctly, or has not supported its
findings with record evidence.
Id. at 289 (internal quotation marks and citations omitted); accord Delgado, 508 F.3d
at 709.
To hold otherwise would be to usurp the agency’s role, entrusted by
Congress, to assess and weigh the evidence and, instead, substitute the court’s
judgment as to such evidence for that of the agency. See S.E.C. v. Chenery Corp.,
318 U.S. 80, 88 (1943) (“For purposes of affirming no less than reversing its orders,
an appellate court cannot intrude upon the domain which Congress has
exclusively entrusted to an administrative agency.”). As the Supreme Court has
emphasized in the immigration context:
A court of appeals is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own
40
conclusions based on such an inquiry. Rather, the proper course,
except in rare circumstances, is to remand to the agency for additional
investigation or explanation.
I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002) (internal quotation marks and
citations omitted); see also Cao He Lin v. U.S. Dep’t of Just., 428 F.3d 391, 400 (2d Cir.
2005) (“To assume a hypothetical basis for the IJ’s determination, even one based
in the record, would usurp her role.”); Shi Liang Lin v. U.S. Dep’t of Just., 416 F.3d
184, 192 (2d Cir. 2005) (“Were courts obliged to create and assess ex-post
justifications for inadequately reasoned agency decisions, courts would, in effect,
be conscripted into making policy. Such an activity is, for myriad and obvious
reasons, more properly the province of other bodies, particularly where, as here,
the other body is an agency that can bring to bear particular subject matter
expertise. Accordingly, we must reject the government’s entreaty to adjudicate by
ex-post hypothesis.”); El Moraghy v. Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003)
(explaining that a court “‘should not supplant the agency’s findings merely by
identifying alternative findings that could be supported by substantial evidence’”
(quoting Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992))).
To be sure, as the government and the dissent both note, we have made clear
that the agency is not required to “expressly parse or refute on the record each
41
individual argument or piece of evidence.” Jian Hui Shao v. Mukasey, 546 F.3d 138,
169 (2d Cir. 2008) (internal quotation marks omitted). However, we have generally
made that observation in situations involving a failure to refute every argument
or piece of evidence relating to a petitioner’s credibility assessment, as
demonstrated by the two cases cited by the government. See, e.g., Xiao Ji Chen, 471
F.3d at 336 n.17; Zaman v. Mukasey, 514 F.3d 233, 239 (2d Cir. 2008). For example,
in Xiao Ji Chen, the petitioner made statements in her testimony inconsistent with
her medical records, written asylum application, other documents submitted, and
the State Department profile for her country. Id. at 336–37. The IJ determined her
testimony was not credible and denied her application. Id. at 338. We rejected
petitioner’s claim that the IJ erred in failing to expressly reject her testimony as
inconsistent. Id. at 336 n.17 (observing that while an IJ must “take . . . into account
. . . significant factual assertions offered by a petitioner,” “the IJ need not engage in
robotic incantations to make clear that he has considered and rejected a petitioner’s
proffered explanation” (internal quotation marks and citations omitted)).
Likewise, Zaman concerned an adverse credibility determination. Zaman, 514 F.3d
42at 239. Saliently, we observed that “there was no testimony or evidence that was
‘independently corroborated’ and that the IJ failed to assess.” Id. 14
No case cited by the government involved the failure to address an expert
declaration or expert testimony supporting a petitioner’s position. As to material
evidence of that nature, the agency is required to acknowledge the evidence and
14 The dissent cites unpublished summary orders that also have not required the agency
to parse through, or refute, every piece of evidence in addressing a variety of different
immigration claims. Post at 32–33 n.23. We recognize that this sensible rule can be (and
is) applied to various BIA decisions under certain factual circumstances, but none of the
cited summary orders are apposite to the situation here. For example, in Cruz v.
Wilkinson, we observed that, although a medical report was not explicitly referenced, the
BIA acknowledged the contents in other ways, including by “referenc[ing] the page of
the IJ’s decision discussing the report.” 848 F. App’x 14, 16 (2d Cir. 2021). In Yi Lun Wang
v. Garland, we did not require the agency to address a report submitted on appeal because
petitioner’s evidence did not demonstrate any increased persecution. 857 F. App’x 679,
682 (2d Cir. 2021). In Medrano Medrano v. Garland, the evidence at issue was evidence of
petitioner’s criminal history, which we found the BIA did not mischaracterize, let alone
ignore. 852 F. App’x 586, 587–88 (2d Cir. 2021). In Coreas-Alvarado v. Barr, the IJ
acknowledged the conclusions in an expert affidavit, even though it did not expressly
acknowledge the affidavit itself. 838 F. App’x 594, 598 (2d Cir. 2020). In Amarasinghe v.
Barr, where the agency assumed the validity of certain medical evidence, we determined
that it “was not required to explicitly consider [other medical] evidence” because “that
evidence was of limited relevance without comparative evidence” of medical treatment
disparities between Sri Lanka and the United States. 831 F. App’x 14, 15 (2d Cir. 2020).
In Balasegarathum v. Barr, we concluded that the agency did not need to explicitly consider
a medical report or country conditions evidence where the medical report did not address
the grounds for the adverse credibility determination as to the applicant’s claim of
torture, and the country conditions evidence “did not corroborate the particular past
abuses that [petitioner] claimed to have suffered.” 827 F. App’x 90, 93 (2d Cir. 2020).
Every other summary order cited by the dissent is likewise not comparable to the factual
situation here, involving a complete failure to address material evidence which we have
held in numerous precedential opinions – including Poradisova, Tanusantoso, Delgado,
Ramsameachire, and Yan Chen – requires remand.
43
describe “why its view . . . departed from that the of the expert[].” 15 Tanusantoso,
962 F.3d at 699. For example, in Manning, the IJ found that the petitioner’s credible
testimony about his fear concerning future torture was “simply too speculative.”
954 F.3d at 486 (quoting the record). Although noting that every piece of evidence
need not be parsed or refuted by the IJ, we remanded because we found “error in
the IJ’s and BIA’s failure to consider the unrebutted expert affidavit . . . which we
assume to be credible” and “‘it is not sufficient simply to ignore’ [the expert’s]
affidavit ‘when announcing a conclusion’ regarding likelihood of torture.” Id.
(quoting Yan Chen, 417 F.3d at 272); see also Ramsundar v. Barr, 830 F. App’x 33, 35
(2d Cir. 2020) (“[A]lthough there may be grounds for the BIA to give diminished
15We are aware of this Court’s decision in Wei Guang Wang v. Board of Immigration Appeals,
437 F.3d 270, 275–76 (2d Cir. 2006), in which we held that no remand was required even
though the agency did not address two affidavits regarding changes in country
conditions. That case is factually distinguishable. More specifically, one affidavit was of
“limited relevance” because it was not related to petitioner’s circumstances, and was one
that the “BIA [was] asked to consider time and again” in more than 200 asylum cases. Id.
at 275. The other affidavit was immaterial to changed conditions because the anecdotal
evidence in the affidavit took place before the BIA denied the petitioner’s application for
asylum. Here, in contrast, the declaration was particular to Ojo’s circumstances and, if
credited, supported his claim (and his testimony, which the IJ credited). Moreover, as
noted above, the declaration had previously been referred to, in the record, as a “good
expert opinion.” Thus, this is not the extremely rare case, such as Wei Guang Wang, where
the expert’s declaration was “too insignificant to merit discussion.” Douglas v. I.N.S., 28
F.3d 241, 244 (2d Cir. 1994). In fact, even in Wei Guang Wang, we noted that “[t]he BIA
should demonstrate that it has considered [country conditions] evidence, even if only to
dismiss it.” 437 F.3d at 275.
44
weight to [the expert’s] declaration, we are limited to the reasons given by the BIA,
and the BIA did not explain why it did not find [the expert’s] conclusions
persuasive.”).
In fact, the agency’s own precedent also reflects this requirement as it relates
to expert reports or testimony. See In re M-A-M-Z-, 28 I. & N. Dec. 173, 177–78
(B.I.A. 2020) (“[W]hen the Immigration Judge makes a factual finding that is not
consistent with an expert’s opinion, it is important . . . to explain the reasons
behind the factual findings.”); see also In re J-G-T-, 28 I. & N. Dec. 97, 104 (B.I.A.
2020) (“There is no indication that the Immigration Judge reasonably considered
whether the witness’s opinion had a sufficient factual basis to essentially establish
the respondent’s claim.”).
Other circuit courts have reached the same conclusion under analogous
circumstances. See, e.g., Alvarez Lagos v. Barr, 927 F.3d 236, 256 (4th Cir. 2019)
(remanding where the IJ, “without discussing any of the evidence in the record
[including expert declarations] – summarily concluded” that the applicant’s
assertion that she would be tortured if returned to her home country was
“speculation rather than evidence” (internal quotation marks omitted)); Castillo v.
Barr, 980 F.3d 1278, 1283 (9th Cir. 2020) (“If the Board rejects expert testimony, it
45
must state in the record why the testimony was insufficient to establish the
probability of torture.” (internal quotation marks omitted)); see generally Abdel-
Masieh v. U.S. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (“While we do not require that
the BIA address evidentiary minutiae or write any lengthy exegesis, its decision
must reflect meaningful consideration of the relevant substantial evidence
supporting the alien's claims.” (citation omitted)). 16
We thus find error in the agency’s determination that Ojo was not more
likely than not to suffer torture without any apparent consideration of material
evidence or, at a minimum, by failing to provide reasoning as to why such
16The dissent cites to sister circuit court decisions that have articulated the same type of
“no need to parse every piece of evidence” rule that exists in our Circuit. Post at 26–27
n.19. These courts, however, similarly remanded where there is insufficient reasoning or
a failure to consider a key piece of evidence, as is the case here. Indeed, some of the very
cases cited by the dissent did exactly that, and thus support our position. For example,
in Tan v. United States Attorney General, the Eleventh Circuit vacated the agency’s decision
and remanded, holding that the agency failed to give “reasoned consideration” to the
petition because, among other reasons, the IJ “misstated the contents of the record” and,
although the IJ found petitioner’s testimony credible, he failed to make adequate findings
to support his decision to deny petitioner’s application for withholding of removal. 446
F.3d 1369, 1376–77 (11th Cir. 2006). Moreover, in Yan Lan Wu v. Ashcroft, the Third Circuit
remanded because the IJ found the applicant credible, but then did not explain why she
rendered a decision on the applicant’s asylum claim contrary to that decision. 393 F.3d
418, 425 (3d Cir. 2005). Also, in Abdel-Masieh v. United States Immigration and Naturalization
Service, the Fifth Circuit remanded because, among other reasons, the BIA failed to
address much of petitioner’s key evidence concerning his likelihood of persecution. 73
F.3d 579, 586–87 (5th Cir. 1996). The remainder of the out-of-circuit cases can be
distinguished in that, among other things, they did not involve a failure to consider an
expert declaration or opinion.
46
evidence was rejected if it was considered. Accordingly, we remand his CAT claim
as it pertains to threatened torture as a criminal deportee so that the agency may
give full consideration to Ojo’s evidence and explain the reasoning for its decision.
* * *
As to our decision overall, the dissent asserts that we incorrectly depart from
legal standards that apply to immigration cases, post at 2–4, and require the agency
to “follow a particular formula or incant . . . magic words and phrases,” id. at 3–4.
Neither of those assertions is accurate. Instead, consistent with longstanding
principles of law, we hold that a case must be remanded where the agency: (1)
applied the wrong legal standard for changed circumstances – namely, by
requiring the applicant (contrary to the plain text of the regulation) to demonstrate
that the changed circumstances were not caused by his own conduct; (2) failed to
conduct the totality of the circumstances analysis as is required under the law;
(3) erroneously referred to wire fraud as a “crime against persons” and failed to
follow its own precedent as it relates to the procedure for determining whether a
crime constitutes a “particularly serious crime”; and (4) failed to address an
unrebutted expert declaration that corroborated the applicant’s claim of torture.
47
The dissent describes these holdings in various ways – including as
“second-guessing,” requiring “magic words and phrases,” “nitpicks,” “quibbling
micromanagement of the agency’s adjudicatory procedure,” and “object[ions] to a
single jot or tittle in the agency’s opinions.” Post at 1, 2, 4, 16, 34. We respectfully
reject these characterizations. Insisting that an agency apply the correct legal
standards, follow its own precedent, and provide at least some reasoning to denote
and explain its consideration of an unrebutted expert declaration are not, in our
view, “nitpicks,” or anything of the sort. These basic and well-settled legal
requirements ensure fairness and adherence to the law in agency proceedings, as
well as facilitate public confidence in the outcome of such proceedings. We
recently noted, in the context of remanding a sentencing, how important it is for
this Court to have sufficient reasoning in the record to conduct meaningful
appellate review, see United States v. Young, 998 F.3d 43, 56 (2d Cir. 2021), and we
demand no less in reviewing immigration decisions where an individual’s ability
to legally remain in the United States hangs in the balance.
The only seemingly “magic phrase” that permeates today’s opinions in this
case is the dissent’s use on at least four occasions of portions of a sentence from
the Supreme Court’s recent decision in Garland v. Ming Dai, which stated that “a
48
reviewing court must uphold even a decision of less than ideal clarity if the
agency’s path may be reasonably discerned.” 141 S. Ct. at 1679 (internal quotation
marks omitted). The circumstances in Ming Dai, and the corresponding
application of that legal principle, however, were qualitatively different from
those present here. More specifically, in Ming Dai, the Supreme Court rejected the
rule adopted by the Ninth Circuit, which provided that, in the absence of an
explicit adverse credibility determination by the IJ or BIA, the reviewing court
must treat the non-citizen’s testimony as credible and true. Id. at 1676–77.
Moreover, the Supreme Court stated that “the [Ninth Circuit] ignored whether the
agency’s statements could be fairly understood as rejecting his credibility,”
including the fact that the IJ’s decision “noted [the applicant’s] story changed from
the time of the probation report to the time of the hearing,” and “further concluded
that [the applicant’s] testimony sought to minimize his actions and condone
violence against his girlfriend.” Id. at 1679–80. Thus, Ming Dai did not involve an
agency applying an incorrect legal standard or failing to provide any explanation
as to its reason for rejecting a material piece of evidence.
Neither the government nor the dissent cites to any case where the Supreme
Court or this Court (or any other appellate court) has ever upheld a BIA decision
49
to reject a claim for relief where the applicant’s testimony was found to be credible
and the applicant was denied such relief for lack of corroboration, but neither the
IJ nor the BIA addressed an unrebutted expert declaration that corroborated the
applicant’s claim. 17 We disagree with the dissent’s contention that, in such
circumstances as here, the agency’s reasoning “may reasonably be discerned.”
Ming Dai, 141 S. Ct. at 1679; see also Zamorano v. Garland, 2 F.4th 1213, 1222 (9th Cir.
2021) (distinguishing Ming Dai and concluding that the agency’s decision could
not be reasonably discerned because “there was no indication that the IJ implicitly
considered any favorable factors in making its voluntary departure
determination”). In Ming Dai, the Supreme Court cautioned that “[o]f course,
reviewing courts remain bound by traditional administrative law principles,
including the rule that judges generally must assess the lawfulness of an agency’s
17The dissent asserts that “there are several such cases,” post at 31, and then cites only to
two unpublished decisions by this Court, which are distinguishable, see id. at 31 n. 22. In
Xiu Yun Zheng v. Board of Immigration Appeals, we determined that, where the agency
found that the petitioner lacked credibility (and that credibility finding was
unchallenged), it was not error for the agency to fail to explicitly reject an “oft-cited”
expert report, “which the BIA [was] asked to consider time and again.” 191 F. App’x 42,
44–45 (2d Cir. 2006). In Hernandez v. Lynch, we likewise concluded that, where petitioner
“failed to provide any credible basis to conclude that his father was murdered or that he
ha[d] been threatened on account of his family ties,” the agency did not err by not also
discussing an expert report that assumed such a connection solely “based on
[petitioner’s] statements to the expert and not on firsthand knowledge.” 644 F. App’x 61,
63–64 (2d Cir. 2016).
50
action in light of the explanations the agency offered for it rather than any ex post
rationales a court can devise.” Ming Dai, 141 S. Ct. at 1679 (citing Chenery Corp.,
318 U.S. 80).
The dissent supplies that exact type of ex post rationalization here. For
example, the dissent boldly characterizes the expert declaration as “not probative”
and as “add[ing] nothing to the arguments the agency already considered and
rejected,” post at 27–28, 33 n.24, even though the IJ had four years earlier referred
to it as “on the papers, [a] good expert opinion,” Cert. Admin. R. at 285, and never
classified it as immaterial or gave any reason for rejecting it (or even mentioned it
again). We decline to encroach on the agency’s important role in this manner.
Instead, we instruct the agency to exercise its own discretion under the proper
legal standards that we have outlined and to provide sufficient reasoning for this
Court to conduct meaningful review of its decisions.
III. CONCLUSION
For the foregoing reasons, the petition for review is GRANTED, the BIA’s
decision is VACATED, and the case is REMANDED to the BIA for further
proceedings consistent with this opinion.
51
19-3237
Ojo v. Garland
MENASHI, Circuit Judge, dissenting:
This is a straightforward case. Olukayode David Ojo, a
Nigerian citizen illegally present in the United States, scammed
unsuspecting Americans by selling non-existent vehicles on the
internet and then using false identity documents to collect payments
wired to Western Union. For doing so, Ojo was convicted of
conspiracy to commit wire fraud and conspiracy to possess with
intent to use false identification documents unlawfully. In Ojo’s
removal proceedings, the agency held that Ojo’s asylum
application—filed three years too late—was untimely and that he did
not qualify for an exception based on changed circumstances; that,
alternatively, Ojo did not merit asylum in the exercise of the agency’s
discretion because of his criminal conviction; that Ojo was barred
from withholding of removal because his conviction was for a
particularly serious crime; and that Ojo did not meet his burden
under the Convention Against Torture to show that he would more
likely than not be tortured in Nigeria.
Each of the agency’s decisions was entirely reasonable. Indeed,
the court’s opinion today does not even question the agency’s
reasoning on the merits. See ante at 5 (“[W]e express no view as to how
the agency should resolve these issues on the merits as they relate to
Ojo’s claims.”). Our review of the agency’s determinations is
deferential. Here, for example, its “discretionary judgment whether
to grant relief” under the asylum statute is “conclusive unless
manifestly contrary to the law and an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D). There is no justification for second-guessing its
judgment in this case.
Yet the court nitpicks its way to vacating every aspect of the
agency’s decision. Though it does not disagree with the agency’s
substantive judgment, the court decides the agency’s opinion could
have been written more clearly—and it remands for the agency to
revise it.
The court’s minor quibbles do not justify vacatur. First, it is
well-established that criminal activity is not a basis for granting
asylum, and therefore an alien who commits crimes in the United
States cannot claim that those crimes constitute “changed
circumstances” that would justify an untimely filing of an asylum
application under 8 U.S.C. § 1158(a)(2)(D). Accordingly, the agency
explained that it rejected Ojo’s claim because his criminal convictions
“were caused by his own criminal conduct.” Cert. Admin. R. at 5.
Nevertheless, the court vacates the agency’s decision because its
reasoning was not “clear enough.” Ante at 19 (quoting Appellee’s Br.
24).
Second, we must treat a discretionary denial of asylum as
“conclusive” unless it is “manifestly contrary to the law and an abuse
of discretion.” 8 U.S.C. § 1252(b)(4)(D). It is clear that the agency’s
decision was neither manifestly contrary to the law nor an abuse of
discretion. Nevertheless, the court vacates the agency’s decision
because it did not “reference the legal standard requiring
consideration of mitigating factors” or incant the phrases “totality of
the circumstances” and “favorable and adverse factors” in the course
of making its decision. Ante at 22-23.
Third, the agency receives deference on how to interpret its
own regulations and precedents. Li Yong Zheng v. DOJ, 416 F.3d 129,
131 (2d Cir. 2005). Nevertheless, the court vacates the agency’s
2
decision for failing to “follow its own precedent” because the agency
applied its precedent differently than today’s panel would apply it.
Ante at 34.
Fourth, the agency “need not discuss each and every piece of
evidence presented by an asylum applicant when rendering a
decision,” Xiao Ji Chen v. DOJ, 471 F.3d 315, 341 (2d Cir. 2006), and a
court may not reverse the agency’s finding that an applicant is
unlikely to be tortured “unless any reasonable adjudicator would be
compelled to conclude to the contrary,” Gallina v. Wilkinson, 988 F.3d
137, 142 (2d Cir. 2021) (quoting 8 U.S.C. § 1252(b)(4)(B)). Nevertheless,
the court vacates the agency’s decision because it did not specifically
discuss “an expert declaration” in the record, even though the
declaration made no difference to the outcome of the case. Ante at 35.
None of the court’s objections has any basis in the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., which the court
purports to apply. “Nothing in the INA contemplates anything like
the embellishment” the court adopts in today’s opinion, and “it is
long since settled that a reviewing court is ‘generally not free to
impose’ additional judge-made procedural requirements on agencies
that Congress has not prescribed and the Constitution does not
compel.” Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quoting Vt.
Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978)). Rather,
as the Supreme Court has unanimously and clearly stated, “a
reviewing court must ‘uphold’ even ‘a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.’” Id. at 1679
(quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S.
281, 286 (1974)). A reviewing court errs—as the court does today—by
requiring the agency to “follow a particular formula or incant ‘magic
3
words’” in its decisions. Id. The agency “need not use any particular
words” to reach its decision. Id.In this case, the path by which the agency reached its
conclusions may reasonably be discerned, and those conclusions were
properly supported and consistent with law. Yet the court vacates the
agency’s decision because the agency did not follow a particular
formula or incant the magic words and phrases that the court would
have preferred. The court errs in doing so. I therefore dissent.
I
The agency correctly concluded that when an alien commits
crimes in the United States, those crimes do not amount to “changed
circumstances which materially affect the applicant’s eligibility for
asylum” that would qualify the alien for an exception to the one-year
filing deadline for asylum applications. 8 U.S.C. § 1158(a)(2)(D). Ojo
argued that because he is now a felon, he should be excused from the
statutory deadline. The agency rejected this argument because the
purported “changed circumstances” were Ojo’s own “criminal
conduct.” Cert. Admin. R. at 5 (“[H]is arrest and subsequent
detention do not constitute changed or extraordinary circumstances
because these events were caused by his own criminal conduct.”).
That decision was correct. Ojo’s criminal activity does not
qualify him for the “changed circumstances” exception. To count as
“changed circumstances,” the factual development must “materially
affect the applicant’s eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D)
(emphasis added). Ojo himself acknowledges that “changed
circumstances” must relate to the merits of an asylum claim: he notes
that such circumstances must include “reasons why [the alien] might
have accrued a meritorious asylum claim, due to changed
4
circumstances, only after having already been in the United States for
one year or more.” Petitioner’s Br. 16.
Criminal activity in the United States is not a valid basis for an
asylum claim. To establish eligibility for asylum, an applicant must
show that he meets the statutory definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A “refugee” is someone who cannot return to his
home country “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.” Id. § 1101(a)(42). Ojo’s
new status as a convicted felon does not make him a refugee entitled
to asylum in the United States—as we and other courts have
recognized. 1 We have also repeatedly said that prosecution based on
1 See, e.g., Yokoyama v. Holder, 571 F. App’x 12, 14 (2d Cir. 2014) (holding
that “the IJ reasonably found that [the petitioner] cannot establish a
particular social group based on her suspected criminal activity” because
“‘[t]reating affiliation with a criminal organization as being protected
membership in a social group is inconsistent with the principles underlying
the bars to asylum and withholding of removal based on criminal
behavior’”) (quoting Matter of E-A-G-, 24 I. & N. Dec. 591, 596 (BIA 2008));
Yue Hae Zhong v. Holder, 346 F. App’x 30, 35 (6th Cir. 2009) (“For the same
reasons that drug traffickers do not constitute a ‘particular social group,’
neither do perjurers.”); Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir.
2007) (“We cannot conclude that Congress, in offering refugee protection
for individuals facing potential persecution through social group status,
intended to include violent street gangs who assault people and who traffic
in drugs and commit theft.”); Toussaint v. Attorney General, 455 F.3d 409, 418
(3d Cir. 2006) (“[W]e are impressed with the precedents of other courts of
appeals establishing that, for purposes of the INA, criminal deportees are
not recognized as a social group. … [W]e point out that Congress
sometimes selects criminals for negative treatment under the INA on
account of their records. We reject the notion that Congress would take the
opposite approach in this context.”) (internal citation omitted); Elien v.
5
the consequences of criminal conduct does not amount to
persecution. 2 Ojo makes no argument that the purported negative
treatment resulting from his criminal convictions would be a “pretext
Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004) (“The BIA determined that,
whether or not Haitians who commit crimes in the United States are
subjected to ‘persecution’ upon repatriation, it would be unsound policy to
recognize them as a ‘social group’ safeguarded by the asylum statute. …
[T]he BIA has never extended the term ‘social group’ to encompass persons
who voluntarily engaged in illicit activities.”); United States v. Aranda-
Hernandez, 95 F.3d 977, 980-81 (10th Cir. 1996) (rejecting the applicant’s
theory “that he should be afforded protection as a member of a particular
social group” consisting of those persons who have worked as informants
for drug enforcement agencies of the United States because it “is not
supported by case law; nor is it supported by the principles underlying the
[Immigration and Nationality] Act”); Bastanipour v. INS, 980 F.2d 1129, 1132
(7th Cir. 1992) (“Whatever its precise scope, the term ‘particular social
groups’ surely was not intended for the protection of members of the
criminal class in this country, merely upon a showing that a foreign country
deals with them even more harshly than we do. A contrary conclusion
would collapse the fundamental distinction between persecution on the one
hand and the prosecution of nonpolitical crimes on the other.”).
2 See Gorelik v. Holder, 339 F. App’x 70, 72 (2d Cir. 2009) (“For purposes of
asylum eligibility, prosecution for a crime is not persecution on account of
a protected ground.”); Saleh v. DOJ, 962 F.2d 234, 239 (2d Cir. 1992)
(“Punishment for violation of a generally applicable criminal law is not
persecution.”); Sovich v. Esperdy, 319 F.2d 21, 28 (2d Cir. 1963) (“It was not
the intent of Congress to make the United States a refuge for common
criminals by operation of this humanitarian statute.”); see also Jin Jin Long v.
Holder, 620 F.3d 162, 166 (2d Cir. 2010) (“As a rule, the enforcement of
generally applicable law cannot be said to be on account of the offender’s
political opinion, even if the offender objects to the law.”); Zhang v. Slattery,
55 F.3d 732, 751 (2d Cir. 1995) (“[A]n applicant for refugee status must
establish a fear of reprisal that is different in kind from a desire to avoid the
exactions (however harsh) that a foreign government may place upon its
citizens.”).
6
for political persecution.” Jin Jin Long, 620 F.3d at 166. His argument
is that his criminal activity itself is the changed circumstance that
materially affects his eligibility for asylum. See ante at 17-18 (“Ojo had
independently asserted, apart from any explanation for the delay in
filing, that ‘changed circumstances’ existed based upon his new status
as a criminal deportee.”). The agency reasonably and correctly
rejected that argument, and its “path may reasonably be discerned.”
Ming Dai, 141 S. Ct. at 1679; see Cert. Admin. R. at 5 (“[W]e agree with
the Immigration Judge’s determination that [Ojo’s] arrest and
subsequent detention do not constitute changed or extraordinary
circumstances because these events were caused by his own criminal
conduct.”). We accordingly “must uphold” the agency’s decision.
Ming Dai, 141 S. Ct. at 1679.
Yet the court vacates the agency’s decision because it thinks the
immigration judge (“IJ”) was insufficiently clear when he considered
whether Ojo had demonstrated “the existence of changed
circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing
an application” under 8 U.S.C. § 1158(a)(2)(D). The IJ cited 8 C.F.R.
§ 1208.4(a)(5) for the proposition that the applicant “must establish …
that the circumstances were not intentionally created by him through
his own action or inaction.” Cert. Admin. R. at 49. The court
acknowledges that this is a correct statement of Ojo’s burden with
respect to “extraordinary circumstances” and therefore relevant to the
IJ’s analysis. Ante at 18. But the court says that the IJ should have
separately cited 8 C.F.R. § 1208.4(a)(4) as supplying the relevant
standard for “changed circumstances,” and his failure to do so
warrants vacatur. Id. Even though the BIA cited both § 1208.4(a)(5) and
§ 1208.4(a)(4) in affirming the IJ’s decision, the court nevertheless
7
asserts that the BIA also erred because “that the applicant caused his
changed circumstances … does not preclude consideration of such
circumstances.” Ante at 19-20.
But the fact that the purportedly changed circumstances “were
caused by his own criminal conduct,” as the BIA observed, Cert.
Admin. R. at 5 (emphasis added), does preclude consideration of those
circumstances because Ojo’s criminal conduct does not “materially
affect” his “eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D). An
applicant’s criminal conduct is not a circumstance that makes the
applicant eligible for asylum. See, e.g., Yokoyama, 571 F. App’x at 14;
Yue Hae Zhong, 346 F. App’x at 35; Arteaga, 511 F.3d at 945-46;
Toussaint, 455 F.3d at 418; Elien, 364 F.3d at 397; Aranda-Hernandez, 95
F.3d at 980-81; Bastanipour, 980 F.2d at 1132; Gorelik, 339 F. App’x at
72; Saleh, 962 F.2d at 239; Sovich, 319 F.2d at 28; Jin Jin Long, 620 F.3d
at 166; Zhang, 55 F.3d at 751.
The court does not disagree with that proposition. See ante at 20
n.5. Yet the court would have preferred that the agency had written
that “Ojo’s arrest and subsequent detention do not constitute changed
circumstances because these events were caused by his own criminal
conduct and criminal activity is not a valid basis for an asylum claim.” This
extra phrase is not necessary because this point is already reasonably
discernable from the agency’s opinions, but the court still vacates the
agency’s decision for failure to include this extra phrase. That the
extra words are easy to produce from the existing record
demonstrates how seriously the court departs from the mandate to
uphold agency decisions in which the reasoning is apparent. See Ming
Dai, 141 S. Ct. at 1679 (“[A] reviewing court must uphold even a
decision of less than ideal clarity if the agency’s path may reasonably
be discerned.”) (internal quotation marks omitted).
8
Remands for extra verbiage are doubly improper because we
do not remand, even when we conclude the agency erred, “if the
remand would be pointless because it is clear that the agency would
adhere to its prior decision in the absence of error.” Xiao Ji Chen v.
DOJ, 434 F.3d 144, 161 (2d Cir. 2006); NLRB v. Wyman-Gordon Co., 394
U.S. 759, 766 n.6 (1969) (explaining that “Chenery does not require that
we convert judicial review of agency action into a ping-pong game”
and that remand is not required when it “would be an idle and useless
formality”); NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982)
(“[R]eversal and remand are [not] required each and every time an
administrative agency assigns a wrong reason for its action; rather,
[remand is required] only where there is a significant chance that but
for the error, the agency might have reached a different result.”).
Here, even if the agency somehow erred in evaluating Ojo’s
claim of changed circumstances, remand would be futile because
Ojo’s two reasons for qualifying for “changed circumstances” fail. Ojo
claimed that “‘changed circumstances’ existed based upon his new
status as a criminal deportee and Boko Haram’s increased violence
against Christians like himself.” Ante at 17-18. First, as the court
acknowledges, criminal deportees are not a social group entitled to
asylum. Id. at 20 n.5. Ojo’s claim that his criminal conduct qualifies as
“changed circumstances” therefore cannot possibly prevail. Second,
“Ojo’s fear of Boko Haram did not increase as a result of Boko
Haram’s designation as a terrorist organization.” Id. at 8. Because, by
definition, a fear that is constant cannot qualify as a changed
circumstance, the IJ concluded that Ojo “could not show changed
circumstances as to his religious persecution claim.” Id. We must
uphold this finding of fact because the finding that Ojo’s fear of Boko
Haram remained constant is “supported by reasonable, substantial
9
and probative evidence in the record.” Id. at 12 (internal quotation
marks omitted) (quoting Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009)). 3 In this case, “the substance of the Board’s command is
not seriously contestable” and “[t]here is not the slightest uncertainty
as to the outcome of a proceeding before the Board.” Wyman-Gordon
Co., 394 U.S. at 766 n.6. It is “useless” and “meaningless” to remand.
Id. 4
3 The court writes that it declines to accept this finding of fact because “the
BIA … failed to address the IJ’s ruling … related to Boko Haram.” Ante at
21. But, as the court notes earlier, we review the agency’s ruling as a whole.
“Where, as here, the BIA adopts and affirms the IJ’s decision, we review the
two decisions in tandem,” id. at 11 (internal quotation marks and alterations
omitted), and therefore we consider the IJ’s findings even if the findings
were not reiterated by the BIA. In rejecting the agency’s finding of fact, the
court writes that it “must review the findings the IJ actually made and not
seek out bases for denying review on which the IJ did not rely.” Id. at 22
(quoting Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006)). Yet, as the court
itself notes, the IJ made these findings. See id. at 8 (“The IJ also concluded
that Ojo’s fear of Boko Haram did not increase as a result of Boko Haram’s
designation as a terrorist organization, and thus he could not show changed
circumstances as to his religious persecution claim.”). So it turns out the
court is not willing to accept “the findings the IJ actually made” either. Id.
at 22.
4 The court writes that “Ojo has a right to know why his claim was barred
by the agency as untimely, as opposed to this Court substituting its own
alternative ground.” Ante at 21. The agency has already explained itself
adequately, as I have noted. But, even so, this “right to know” is a doctrine
of the court’s own invention. Chenery does not rely on a notion of due
process such as a “right to know”; it is rooted in the separation of powers.
See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). We are not allowed “to
impose additional judge-made procedural requirements,” such as a right-
to-know doctrine, “that Congress has not prescribed and the Constitution
does not compel.” Ming Dai, 141 S. Ct. at 1677 (internal quotation marks
omitted).
10
II
As an entirely independent and alternative ground for denying
Ojo’s application for asylum, the agency said it would deny the
application as a matter of discretion. “Even were the Respondent
statutorily eligible for asylum,” the IJ wrote, “the Court would deny
his application in the exercise of discretion ... [i]n light of the serious
fraud that [Ojo] inflicted against this country and its citizens.” Cert.
Admin. R. at 49-50. The BIA affirmed. Id. at 5.
The agency’s discretionary decision was reasonable. The
agency may deny asylum as a matter of discretion. See Delgado v.
Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (“Once an applicant has
established eligibility … it remains within the Attorney General’s
discretion to deny asylum.”). Criminal convictions are an adverse
factor that the agency may consider, see Wu Zheng Huang v. INS, 436
F.3d 89, 100 n.12 (2d Cir. 2006), and Ojo was convicted of crimes
involving moral turpitude, see Jordan v. De George, 341 U.S. 223, 228
(1951) (“[C]rimes involving fraud have universally been held to
involve moral turpitude.”); Cert. Admin. R. at 656-58 (order of the IJ
explaining that each count of Ojo’s convictions was for a crime
involving moral turpitude). A criminal alien must overcome an
extraordinarily deferential standard of review to overturn the
agency’s exercise of its discretion to deny an application for asylum
because “the Attorney General’s discretionary judgment whether to
grant relief under [the asylum statute] shall be conclusive unless
manifestly contrary to the law and an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D). Those are two separate requirements that must be
met for the court to be able to vacate the denial of asylum: the agency’s
11
decision must be “manifestly contrary to the law and an abuse of
discretion.” Id. (emphasis added). 5
It was neither. The record does not reveal any significant
mitigating factors that would indicate abuse of discretion. 6 Nor did
the agency’s decision contravene any law. When we have invoked the
need to examine “the totality of the circumstances” and to balance
“favorable and adverse factors,” ante at 22 (quoting Wu Zheng Huang,
436 F.3d at 98), we have not done so to impose an independent, judge-
made procedural requirement. 7 Rather, we have said that this
5 The court does not dispute that these are independent requirements, but
it claims that “the failure to provide sufficient reasoning” qualifies as both
“an abuse of discretion” and “manifestly contrary to the law” in one fell
swoop. Ante at 24. The court’s analysis eviscerates § 1252(b)(4)(D). When
Congress said the agency’s decision must be both “manifestly contrary to the
law and an abuse of discretion,” 8 U.S.C. § 1252(b)(4)(D) (emphasis added),
it was erecting a very high bar for a court to vacate the Attorney General’s
discretionary judgment. The court effectively ignores that standard by
saying all it requires is for a reviewing court to prefer more explanation. See
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS § 26, at 174 (2012) (“[No word or provision] should
needlessly be given an interpretation that causes it to duplicate another
provision or to have no consequence.”). In fact, the agency did not fail to
provide sufficient reasoning. But the amount of reasoning it provided
certainly did not render its decision “contrary to the law,” much less
“manifestly” so. 8 U.S.C. § 1252(b)(4)(D).
6 The court mentions that Ojo “raised a series of mitigating factors to
support the granting of asylum in the exercise of discretion,” including that
Ojo “came to the United States to visit his sisters.” Ante at 24 n.7 (alteration
omitted). The court does not claim that the agency’s dismissal of these
factors is an abuse of discretion, and it contravenes the INA for the court to
reverse in the absence of such an abuse. See 8 U.S.C. § 1252(b)(4)(D).
7We cannot impose such requirements. Ming Dai, 141 S. Ct. at 1677; Vt.
Yankee, 435 U.S. at 524.
12
framework evaluates “the substantive bases of the IJ’s decision, rather
than its procedural aspects.” Wu Zheng Huang, 436 F.3d at 98. In this
case, the court identifies no substantive defects in the agency’s
decision or mitigating factors of consequence that the agency failed to
consider. The court remands not for the agency to engage in any
actual balancing of mitigating factors but to revise its opinion to
“reference the legal standard requiring consideration of mitigating
factors.” Ante at 23.
The two reasons the court offers for vacating the agency’s
discretionary denial of asylum are unrelated to the applicable legal
standard and otherwise unconvincing. First, the court claims that “the
analysis regarding Ojo’s conviction constituting a ‘particularly
serious crime’”—discussed in the next section—“could, depending
upon how that issue is resolved on remand, impact the discretionary
analysis regarding the ‘changed circumstances’ on the asylum claim.”
Id. at 24-25. The idea seems to be that once the BIA realizes that the IJ
did not observe the technicalities of Matter of N-A-M-, 24 I. & N. Dec.
336 (BIA 2007)—at least as the court interprets that decision today—
it might decide to reevaluate Ojo’s criminal record and perhaps
conclude that despite his crimes Ojo merits a discretionary grant of
asylum after all. This speculation strains credulity. The agency’s
discretionary denial was based on Ojo’s actual criminal record, which
the agency fully considered. See Cert. Admin. R. at 49-50. That record
is not going to change, and there is no reason to think that the agency
will retract its determination that someone with that record does not
merit a discretionary grant of asylum.
Second, the court vacates because the IJ did not “reference the
legal standard requiring consideration of mitigating factors” or
“mention any factor other than the criminal conviction.” Ante at 23.
13
Notably, the court vacates not because the agency in fact ignored
serious mitigating factors but because the agency failed to state that it
“examined ‘the totality of the circumstances’ or balanced ‘favorable
and adverse factors.’” Id. at 22 (quoting Wu Zheng Huang, 436 F.3d at
98). The court thereby insists that the agency must “incant magic
words” to survive our review. Ming Dai, 141 S. Ct. at 1679 (internal
quotation marks omitted). This approach has no basis in the INA, and
we are not allowed “to impose additional judge-made procedural
requirements on agencies that Congress has not prescribed and the
Constitution does not compel.” Id. at 1677 (internal quotation marks
omitted); Vt. Yankee, 435 U.S. at 524.
Remanding in these circumstances amounts to what the
Supreme Court has called an “idle and useless formality.” Wyman-
Gordon Co., 394 U.S. at 766 n.6. Yet that is what the court does today,
presumably so that the agency can recount in greater detail the
arguments it found unconvincing the first time. Requiring such extra
verbiage is neither useful nor permitted. See Vt. Yankee, 435 U.S. at 524(noting that judges are “not free to impose” additional procedural
requirements on agencies).
III
The agency also reasonably held that Ojo was ineligible for
withholding of removal because he was convicted of a “particularly
serious crime,” given the nature of the crime, the number of victims,
and the damage inflicted. 8 U.S.C. § 1231(b)(3)(B)(ii). 8 In doing so, the
8 See Cert. Admin. R. at 6 (“[T]he respondent (1) had been convicted of
conspiracy to commit wire fraud and conspiracy to possess with intent to
use five or more false identification documents; (2) had committed fraud
14
agency made no error. Courts—including ours—have routinely
upheld the agency’s determination that wire fraud is a particularly
serious crime. See, e.g., Doe v. Sessions, 709 F. App’x 63, 67-68 (2d Cir.
2017); Smatsorabudh v. Barr, 812 F. App’x 432, 433-34 (9th Cir. 2020);
Nkomo v. Attorney General, 930 F.3d 129, 134-35 (3d Cir. 2019); Jeudy v.
Attorney General, 762 F. App’x 594, 598-99 (11th Cir. 2019). The statute
identifies several crimes as per se particularly serious that do not
appear to be more serious than wire fraud. See, e.g., 8 U.S.C.
§ 1101(a)(43)(Q) (failure to appear for service of sentence); id.§ 1101(a)(43)(T) (failure to appear pursuant to a court order to answer
to or dispose of a felony). It is not unreasonable to conclude that wire
fraud is at least as serious as these crimes that the statute itself
considers per se particularly serious. I do not see how the agency erred
in determining that Ojo’s crime of wire fraud was “particularly
serious” under 8 U.S.C. § 1231(b)(3)(B)(ii).
Yet the court again vacates the agency’s decision for reasons
unrelated to the substance of that decision.
The court first asserts that the agency did not follow its own
precedent. Specifically, the court faults the agency for not adhering to
the procedures outlined in Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA
2007), which the court interprets as requiring a strict two-step
analysis. 9 “The issue here,” the court says, “is not whether the agency
against 11 victims; and (3) was ordered to pay the victims more than $92,000
in restitution.”); see also id. at 50.
9 See ante at 27 (“We conclude that the agency failed to apply the correct
legal standard at step one of the [Matter of N-A-M-] analysis in its
determination that Ojo’s conviction involved a particularly serious
crime.”); id. at 29 (“[T]he indictment was not then analyzed under step one;
15
can reach such a conclusion, but rather its failure to follow its own
precedent which sets forth the framework under which such a
determination should be made.” Ante at 31.
The court has apparently decided to police the way the BIA
interprets and applies its own precedents, even if the BIA’s
conclusions are supported by substantial evidence and consistent
with the INA. This novel procedural requirement is yet another
departure from precedent. Just as we defer to an agency’s reasonable
interpretation of its own regulations, 10 we defer to the agency’s
interpretation of its own precedents. As we have said, “[w]e must
accord deference to an agency’s reasonable interpretation of its own
precedents.” Li Yong Zheng, 416 F.3d at 131 (quoting Global Crossing
Telecomms., Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir. 2001), and citing
Seminole Rock, 325 U.S. at 414). Indeed, “[w]hat is generally true in
administrative law remains true here: An agency’s interpretation of
its own precedents receives considerable deference—a form of
deference that applies in equal measure to the BIA’s interpretation of
its precedents.” Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.
2008) (citations omitted) (citing Li Yong Zheng, 416 F.3d at 131, and
Auer, 519 U.S. at 461). The court today casts that principle aside in
favor of quibbling micromanagement of the agency’s adjudicatory
procedure.
rather, the quote appears to be—along with the reference to the judgment
of conviction and restitution order—part of the ‘totality of the
circumstances’ analysis at step two.”); id. at 30 (“[T]he BIA skipped
immediately to its explanation for agreeing with the IJ’s step-two analysis,
without analyzing step one at all.”).
10See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019); Auer v. Robbins, 519 U.S.
452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
16
The agency’s interpretation and application of Matter of
N-A-M- in this case was reasonable. The court apparently
understands Matter of N-A-M- to require a rigid two-step procedure
involving “an elements-only examination” of the crime at step one,
after which the BIA may proceed to consider the particular
circumstances of the applicant’s offense. Ante at 31. This two-step
procedure is based on the court’s own interpretation of Matter of N-A-
M-. The opinion in Matter of N-A-M- itself does not unambiguously
require such a procedure.11 In fact, Matter of N-A-M- expressly rejects
11 In Matter of N-A-M-, the BIA said that “[o]n some occasions, we have
focused exclusively on the elements of the offense, i.e., the nature of the
crime” but “we have generally examined a variety of factors and found that
the ‘consideration of the individual facts and circumstances is
appropriate.’” 24 I. & N. Dec. at 342 (quoting Matter of L-S-, 22 I. & N. Dec.
645, 651 (BIA 1999)). The BIA elaborated that “[i]f the elements of the
offense do not potentially bring the crime into a category of particularly
serious crimes, the individual facts and circumstances of the offense are of
no consequence,” but if “the elements of the offense are examined and
found to potentially bring the offense within the ambit of a particularly
serious crime, all reliable information may be considered in making a
particularly serious crime determination, including the conviction records
and sentencing information.” Id. It is possible to interpret this language, as
the court does, to require strict procedural adherence to a two-step
procedure. But it is also possible and reasonable to understand the opinion
as stating that the nature of the offense may exclude clearly non-serious
crimes based on the elements; therefore, sometimes the elements of the
offense will be determinative and in other cases the BIA will rely on
individual circumstances. See id. (“On some occasions, we have focused
exclusively on the elements of the offense, i.e., the nature of the crime.
However, we have generally examined a variety of factors and found that
the consideration of the individual facts and circumstances is appropriate.”)
(internal quotation marks and citation omitted). In other words, Matter of
N-A-M- describes alternative approaches but does not mandate a rigid two-
17
the sort of categorical approach the court adopts here. See 24 I. & N.
Dec. at 344 (noting that no “decision of which we are aware, has ever
suggested that the categorical approach, used primarily in
determining removability, is applicable to the inherently
discretionary determination of whether a conviction is for a
particularly serious crime”). Other circuit courts, when reviewing
decisions of the BIA, have not imposed such a procedure. 12 The Ninth
Circuit has said it is enough if the record reveals that “the IJ and BIA
did consider the nature of the conviction, the circumstances and
underlying facts of the conviction, and the type of sentence imposed
when reaching the conclusion that [the] conviction constituted a
particularly serious crime,” without the need to follow a specific
formula. Anaya-Ortiz v. Holder, 594 F.3d 673, 680 (9th Cir. 2010)
(internal quotation marks and alteration omitted). Even when the
agency does not expressly follow the supposed first step of Matter of
step procedure—a procedure that the BIA itself did not even follow in
Matter of N-A-M-.
12 The court quotes the Third Circuit for support for the idea that Matter of
N-A-M- requires a rigid two-step procedure that reviewing courts should
police. See Luziga v. Attorney General, 937 F.3d 244, 254 (3d Cir. 2019) (“[T]he
agency should first determine whether the elements of Luziga’s offense
potentially fall within the ambit of a particularly serious crime. Only then
may it proceed to consider the facts and circumstances particular to
Luziga’s case.”). To the extent Luziga requires such a procedure, the Third
Circuit appears to have originated the idea. However, we have previously
explained that Luziga did not create a general rule but rather reversed the
agency only because “the agency misapprehended the offense elements
before deciding that it was appropriate to weigh factors.” Mbendeke v.
Garland, 860 F. App’x 191, 194 n.1 (2d Cir. 2021); see also Bare v. Barr, 975 F.3d
952, 963 (9th Cir. 2020) (explaining that in Luziga, the agency erroneously
“listed as ‘elements’ specific offense characteristics such as loss amount
which were not elements of the offense”) (internal quotation marks
omitted).
18
N-A-M-—that is, when “[n]either the IJ nor the BIA listed the elements
of [the offense] in their written decisions, neither explicitly discussed
the elements of the crime, and neither explicitly stated that the crime
is potentially particularly serious”—the Ninth Circuit will affirm
because as long as “the IJ or BIA noted facts which correspond to all
the elements of the offense as weighing in favor of the crime being
particularly serious, we see no reason to put form over substance.”
Bare, 975 F.3d at 962-63.
Our court has previously followed the Ninth Circuit and has
declined to “put form over substance by requiring an explicit
consideration of the elements of the offense” when the agency applies
Matter of N-A-M-. Mbendeke, 860 F. App’x at 193-94 (internal quotation
marks and alteration omitted). 13 Rather, we said that when the
agency’s decision “reflects an implicit conclusion that th[e] elements
potentially bring the offense within the ambit of a particularly serious
crime,” that is enough for “a threshold determination based on the
elements of the offense,” even “assuming that the agency is required
to conduct” such an inquiry under Matter of N-A-M-. Id.
In Mbendeke, the petitioner claimed—as Ojo does here—that
“the IJ skipped immediately to the second step” of Matter of N-A-M-’s
two steps. 14 Though the IJ listed the elements of the offense of
marriage fraud, it did not show how, based on the elements alone, the
13 “Although we decided [Mbendeke] by nonprecedential summary order,
rather than by opinion, our ‘[d]enying summary orders precedential effect
does not mean that the court considers itself free to rule differently in
similar cases.’” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting
Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1).
14Petitioner’s Br. 13, Mbendeke v. Garland, 860 F. App’x 191 (2d Cir. 2021)
(No. 19-1766), ECF No. 67.
19
crime of marriage fraud was potentially a particularly serious crime.15
Unlike wire fraud, which has repeatedly been recognized as a
particularly serious crime, 16 marriage fraud has not been so
recognized. Still, we rejected Mbendeke’s claim. We reasoned that
because the agency “stated the threshold question and the elements
of the offense of conviction before considering individual factors …
the decision thus reflects an implicit conclusion that those elements
potentially bring the offense within the ambit of a particularly serious
crime.” Mbendeke, 860 F. App’x at 193. In other words, we recognized
that the “elements-only” analysis of Matter of N-A-M- can be
“implicit,” especially because we assume that when the agency states
a legal standard at the beginning of a paragraph, it must have applied
that standard to reach its conclusion.
Given that wire fraud has consistently been recognized as a
particularly serious crime and the agency here “stated the threshold
question,” a consistent approach would require us to hold that the
agency’s decision “reflects an implicit conclusion that those elements
potentially bring the offense within the ambit of a particularly serious
crime.” Id. 17 The agency followed a reasonable interpretation of
15Cert. Admin. R. at 60-61, Mbendeke v. Garland, 860 F. App’x 191 (2d Cir.
2021) (No. 19-1766), ECF No. 31.
16See, e.g., Doe, 709 F. App’x at 67-68; Smatsorabudh, 812 F. App’x at 433-34;
Nkomo, 930 F.3d at 134-35; Jeudy, 762 F. App’x at 598-99.
17 The court attempts to distinguish Mbendeke on the ground that, in this
case, “the IJ did not separately state the elements before considering the
individual factors.” Ante at 33 n.12. The court would apparently be satisfied
if the agency had “separately state[d] the elements,” id., even without a
separate analysis of why the elements “bring the offense within the ambit
of a particularly serious crime.” Matter of N-A-M-, 24 I. & N. Dec. at 342. So
20
Matter of N-A-M-. The agency concluded, “based on the nature of the
convictions and the underlying circumstances of the case,” that Ojo
“had been convicted of a particularly serious crime” because he
(1) was “convicted of conspiracy to commit wire fraud and
conspiracy to possess with intent to use five or more false
identification documents,” (2) victimized eleven people, and (3) had
to pay “more than $92,000 in restitution.” Cert. Admin. R. at 6. The IJ
noted that Ojo’s “conviction is not per se a particularly serious crime”
but it was potentially so because Ojo “was convicted of conspiracy to
commit wire fraud and conspiracy to possess with intent to use
[un]lawfully five or more false identification documents.” Id. at 50-51.
Ultimately, “[b]ased on the totality of the circumstances, and the
seriousness of the fraud that the Respondent committed,” the IJ found
“his conviction a particularly serious crime.” Id. at 51.
This analysis does not contradict Matter of N-A-M- but
considers all the factors the BIA identified in that case. Even if today’s
panel would interpret Matter of N-A-M- in a more formalistic,
procedural way, we owe “considerable deference” to the “agency’s
interpretation of its own precedents.” Aburto-Rocha, 535 F.3d at 503.
The court suggests that it is affording due deference to the agency’s
the court’s decision is not based on the agency’s reasoning, but the lack of
“robotic incantations” of the elements. Xiao Ji Chen, 471 F.3d at 336 n.17. We
do not require “robotic incantations.” Id. The court separately claims that
the IJ “misapprehend[ed] the elements by classifying the offense as a ‘crime
against persons.’” Ante at 33 n.12. But the agency’s use of this phrase does
not indicate that it misapprehended the elements of Ojo’s crimes by, for
instance, erroneously “list[ing] as ‘elements’ specific offense characteristics
such as loss amount which were not elements of the offense.” Bare, 975 F.3d
at 963 (internal quotation marks omitted). It is implausible that the IJ did
not understand the elements of wire fraud and possession of false
identification documents.
21
interpretation of its own precedent and is “simply … requiring the
agency to follow its own interpretation of its precedent, which was
clearly set forth in In re N-A-M-.” Ante at 33. Yet the interpretation of
Matter of N-A-M- that the court imposes on the BIA today was
evidently not so “clearly set forth” as to be apparent to a prior panel
of this court, to panels of other courts of appeals, and to the BIA itself.
Id. Given these interpretive disagreements, what is “clearly” apparent
is that the court is imposing its own interpretation of Matter of
N-A-M- on the agency despite the evident ambiguity. Id.
The court offers a second reason for vacating the agency’s
reasonable judgment. It fixates on the IJ’s use of the phrase “crime
against persons” and argues that the phrase “infected” the agency’s
whole analysis, even though the BIA did not use the phrase in its
reasoning. Id. at 29. The government suggests that the IJ used the
phrase colloquially, to emphasize that Ojo’s economic crimes should
be taken seriously because those crimes have real victims. See
Respondent’s Br. 33. As the First Circuit has explained of identity
theft, “although violence was indeed not at issue here, there were real
victims: the subject of the identity theft, whose social security number
and identity were stolen, and the government, which was defrauded
of at least $176,000.” Valerio-Ramirez v. Sessions, 882 F.3d 289, 292 (1st
Cir. 2018). In another recent case, the BIA similarly concluded that a
conviction for conspiracy to commit wire fraud was particularly
serious in part because “the respondent’s criminal actions harmed 10
or more real people.” Matter of F-R-A-, 28 I. & N. Dec. 460, 469 (BIA
2022). The presence of victims is a legitimate consideration when
weighing whether a crime is particularly serious. See Nethagani v.
Mukasey, 532 F.3d 150, 155 (2d Cir. 2008) (noting that the agency
properly considers “whether the type and circumstances of the crime
22
indicate that the alien will be a danger to the community”) (quoting
Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)).
The substance of the IJ’s analysis was unobjectionable. Even if
the IJ incorrectly used a term of art, that would not “infect” the
entirety of the agency’s analysis because that single sentence was
inessential. The IJ used the phrase “crime against persons” only once,
and his analysis did not rely on that one sentence. Cert. Admin. R. at
50. A “particularly serious crime” does not need to be a “crime against
persons” in the technical sense or involve any sort of violence. See,
e.g., Matter of R-A-M-, 25 I. & N. Dec. 657, 662 (B.I.A. 2012) (“[W]hile
an offense is more likely to be considered particularly serious if it is
against a person, it does not have to be violent to be a particularly
serious crime.”). One could delete that single sentence from the IJ’s
opinion and be left with a complete, reasonable analysis of the
“totality of the circumstances” surrounding Ojo’s crimes that
properly concludes the crimes were particularly serious. Cert. Admin.
R. at 50-51.
The BIA’s opinion confirms that the phrase was inessential; the
BIA did not repeat the phrase in its analysis but affirmed the IJ’s
decision nonetheless. 18 The idea that the agency would reconsider its
whole analysis after this court corrects the IJ’s terminology is not
credible. Again, we “must uphold even a decision of less than ideal
clarity if the agency’s path may reasonably be discerned,” Ming Dai,
141 S. Ct. at 1679 (internal quotation marks omitted and emphasis
18 See Cert. Admin. R. at 6 (“[T]he Immigration Judge examined the
individualized characteristics of the respondent’s offenses and determined
that—based on the nature of the convictions and the underlying
circumstances of the case—[Ojo] had been convicted of a particularly
serious crime.”).
23
added), and here it is apparent that the agency considered the nature
of the crime, the number of victims, and the damage inflicted when
categorizing Ojo’s crimes as particularly serious. That was a
reasonable decision, and we ought to leave it in place.
IV
Additionally, the agency concluded that Ojo was not eligible
for relief under the Convention against Torture (“CAT”) because Ojo
failed to demonstrate that he would more likely than not be tortured
in Nigeria.
The agency’s decision was reasonable and supported by
substantial evidence in the record. Ojo “testified that he would lose
business as a result of his conviction for a fraud crime,” and the IJ
correctly explained that “any such harm rises to mere private
discrimination, not torture.” Cert. Admin. R. at 52. Ojo “testified that
he could not find another job,” but that was “because the
unemployment rate is high, not due to a denial of work based on his
criminal history.” Id. Finally, Ojo “argued that the government would
arrest, detain, and torture him for being a criminal deportee” and
“testified that he knew someone tortured in Nigeria after refusing to
pay police to release him.” Id. The IJ rejected this last argument
because “[i]t is speculative that the same would happen to the
Respondent.” Id. The IJ noted that to establish entitlement to CAT
relief, there must be “sufficient grounds for determining that a
particular person would be in danger of being subjected to torture upon
his return to that country. Specific grounds must exist that indicate the
individual would be personally at risk.” Id. (emphasis added) (quoting
Matter of J-E-, 23 I & N Dec. 291, 303 (BIA 2002)). The IJ explained that
Ojo did not make that showing:
24
The Respondent has not proffered any circumstances
that indicate he has specific features that put him at higher
risk of being harmed by the government than any other
criminal in Nigeria, let alone established his profile will be
“more likely than not” to subject him to torture.
Id. (emphasis added).
That decision was well-supported and consistent with our case
law. We have repeatedly upheld the denial of CAT relief when an
applicant relies on general or anecdotal evidence but “presents no
particularized evidence” showing that the applicant himself is more
likely than not to be tortured. Mu Xiang Lin v. DOJ, 432 F.3d 156, 158
(2d Cir. 2005). We have said that “in the absence of a showing that
someone in the petitioner’s particular circumstances is more likely than
not to be tortured … CAT relief is not warranted.” Lin Zhong v. DOJ,
480 F.3d 104, 126 n.26 (2d Cir. 2007) (emphasis added).
Yet the court reverses the agency’s reasonable conclusion
because the agency did not specifically address one piece of evidence:
the “Ugochukwu Declaration.” Ante at 36; see Cert. Admin. R. at 857-
67. Because neither the IJ nor the BIA specifically mentioned this
declaration in an opinion, the court vacates and remands the entire
decision. Ante at 46-47.
This vacatur is error. We have repeatedly held that the agency
is not required to “expressly parse or refute on the record each
individual argument or piece of evidence offered by the petitioner.”
Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (quoting Zhi
Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007)); see also Xiao Ji Chen,
471 F.3d at 341 (“[T]he Immigration Judge need not discuss each and
every piece of evidence presented by an asylum applicant when
rendering a decision.”); id. at 336 n.17 (“[W]e presume that an IJ has
25
taken into account all of the evidence before him, unless the record
compellingly suggests otherwise. Accordingly, the IJ need not engage
in ‘robotic incantations’ to make clear that he has considered and
rejected a petitioner’s proffered explanation.”); Wei Guang Wang v.
BIA, 437 F.3d 270, 275 (2d Cir. 2006) (“[W]e reject any implication that
… where the BIA has given reasoned consideration to the petition,
and made adequate findings, it must expressly parse or refute on the
record each individual argument or piece of evidence offered by the
petitioner.”) (internal quotation marks omitted); Mendez v. Holder, 566
F.3d 316, 323 (2d Cir. 2009) (“We readily acknowledge that the agency
does not commit an ‘error of law’ every time an item of evidence is
not explicitly considered.”).
Other circuits have also consistently held that “[w]here, as here,
the [agency] has given reasoned consideration to the petition, and
made adequate findings, we will not require that it address
specifically each claim the petitioner made or each piece of evidence
the petitioner presented.” Martinez v. INS, 970 F.2d 973, 976 (1st Cir.
1992). 19 “Because there is no evidence that the IJ failed to consider
19 See Tan v. Attorney General., 446 F.3d 1369, 1374 (11th Cir. 2006) (holding
that when the agency “has given reasoned consideration to the petition, and
made adequate findings, we will not require that it address specifically each
claim the petitioner made or each piece of evidence the petitioner
presented”); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 425 n.10 (3d Cir. 2005)
(“[T]he Immigration Judge need not discuss each and every piece of
evidence presented by an asylum applicant when rendering a decision, as
long as that decision is substantially supported.”); Morales v. INS, 208 F.3d
323, 328 (lst Cir. 2000) (“This court has held that each piece of evidence need
not be discussed in a decision.”) (citing Martinez, 970 F.2d at 976); Abdel-
Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996) (“We do not require the BIA
to specifically address every piece of evidence put before it.”); Ghaly v. INS,
26
[Ojo’s] documentary evidence” apart from the lack of specific
mention of one item of evidence, we ought to “accept the IJ’s general
statement that he considered all the evidence before him.” Almaghzar
v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006); see also Cert. Admin. R. at
47 (noting that the IJ “familiarized himself with the entire record of
proceedings”).
But even if we were to fail to credit the IJ’s representation that
he reviewed the entire record, the agency did not need to address the
Ugochukwu Declaration expressly for a separate and independent
reason: it added nothing to the arguments the agency already
58 F.3d 1425, 1430 (9th Cir. 1995) (“[T]he Board cannot be expected to
explain how much weight it places on every piece of relevant evidence. Nor
need the Board refer to each exhibit.”); Casalena v. INS, 984 F.2d 105, 107-08
(4th Cir. 1993) (“That the BIA did not explicitly discuss [the petitioner’s]
employment history, his homeownership, or the letters written on his
behalf does not constitute reversible error. The BIA might simply have
found those factors insufficiently significant to merit individual mention …
We conclude that the BIA sufficiently explained its decision to show that it
has heard and thought and not merely reacted.”); Vergara-Molina v. INS, 956
F.2d 682, 685 (7th Cir. 1992) (“The Board need not … mention every relevant
fact in its opinion.”); Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.
1987) (noting that the agency “has no duty to write an exegesis on every
contention. What is required is merely that it consider the issues raised and
announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted”) (quoting
Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984)); Alvarez-Madrigal
v. INS, 808 F.2d 705, 706 (9th Cir. 1987) (explaining that while the BIA must
“show that it ha[s] considered” the factors relevant to a petitioner’s claims,
it “need not set forth its reasons for finding that a factor does not support”
a grant of relief); Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir. 1986)
(“[A]ll that is necessary is a decision that sets out terms sufficient to enable
us as a reviewing court to see that the Board has heard, considered, and
decided.”).
27
considered and rejected. The IJ found Ojo’s allegations that he would
be tortured “speculative” because Ojo provided only general and not
specific evidence of the alleged harm. Ojo failed to show that “he has
specific features that put him at higher risk of being harmed by the
government than any other criminal in Nigeria.” Cert. Admin. R. at 52
(emphasis added). The Ugochukwu Declaration, even assuming it
should be credited in full, says nothing about Ojo’s specific features.
It asserts only that criminal deportees, in general, are arrested and
subjected to “deplorable” and “brutal” prison conditions. Cert.
Admin. R. at 859-60. Putting aside that we have rejected this precise
sort of CAT claim, 20 the Ugochukwu Declaration simply repeats the
argument Ojo himself made: that Ojo will be subjected to
mistreatment “because he will be a criminal deportee.” Cert. Admin.
R. at 859. The IJ fully responded to this argument by finding it unduly
speculative in the absence of evidence that Ojo’s individual
circumstances makes it more likely than not that he in particular will
be subjected to mistreatment amounting to torture. The Ugochukwu
Declaration does nothing to call the IJ’s analysis into question. 21
20 See Pierre v. Gonzales, 502 F.3d 109, 116 (2d Cir. 2007) (holding that the
“indefinite detention of criminal deportees … in light of the prevailing
prison conditions” does not amount to torture).
21 The court criticizes the statement that the expert declaration added
nothing to the case as being “in the dissent’s own judgment.” Ante at 38 n.13.
The point seems to be that it is a violation of Chenery to replace the agency’s
judgment with our own. See ante at 51 (“The dissent supplies that exact type
of ex post rationalization.”). This is a strange criticism. First, my
characterization of the expert report is a determination about its
relationship to the agency’s own analysis, not some theory of my own. As
the court acknowledges, we must “uphold even a decision of less than ideal
clarity if the agency’s path may be reasonably discerned” from its
28
We review an agency’s factual determinations for substantial
evidence and accordingly “must defer to the factfinder’s findings
based on ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Majidi v. Gonzales, 430 F.3d 77,
81 (2d Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). That is not a judge-made rule; Congress by statute has
instructed that “administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). The scope of review under the
substantial evidence standard is therefore “exceedingly narrow.”
reasoning. Id. at 12-13 (internal quotation marks omitted) (quoting Ming
Dai, 141 S. Ct. at 1676). The agency’s reasoning demonstrates that the
Ugochukwu Declaration contains no evidence that would affect the
agency’s decision. The agency said that Ojo failed to provide evidence
about his particular circumstances, and the Ugochukwu Declaration
includes no evidence about Ojo’s particular circumstances. The declaration
therefore provides no additional argument or factual information relevant
to the agency’s decision. Second, whenever we evaluate the agency’s
findings of fact, we apply the “deferential substantial evidence standard.”
Id. at 12. Under that standard, “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). So we must decide
whether the evidence to which Ojo points—here, the Ugochukwu
Declaration—compels the conclusion that he is more likely than not to be
tortured if returned. Consistent with the rest of its opinion, the court ignores
the standard of review and pretends that we may vacate the agency’s
decision based on a procedural failure to consider evidence that does not
undermine the agency’s factual determinations. After all that, it is quite
something for the court to accuse the dissent of departing from the
applicable legal standards. Given the court’s relentless second-guessing of
the immigration courts’ determinations, there is little question whether it is
the court or the dissent that seeks to “intrude upon the domain which
Congress has exclusively entrusted to an administrative agency.” Chenery,
318 U.S. at 88.
29
Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (quoting Mu Xiang
Lin v. DOJ, 432 F.3d 156, 159 (2d Cir. 2005)).
According to the court, the substantial evidence standard “is
inapplicable” because it thinks the agency’s decision was not
adequately explained. Ante at 39. That is a remarkable assertion, given
that the statute prescribing the substantial evidence standard contains
no such exception.
When the court says that the agency’s decision was not
adequately explained—thereby excusing us, in the court’s view, from
applying 8 U.S.C. § 1252(b)(4)(B)—it means that the IJ “fail[ed] to
provide any explanation regarding the expert declaration.” Id. at 38.
We have recognized a general principle that the agency must provide
a “minimum level of analysis” to ensure “judicial review is …
meaningful.” Poradisova, 420 F.3d at 77. But today’s opinion applies
that principle to the agency’s evaluation of every individual piece of
evidence. That is inconsistent with the well-established rule that an IJ
need not “expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner.” Jian Hui
Shao, 546 F.3d at 169 (quoting Zhi Yun Gao, 508 F.3d at 87).
The court does not dispute that its decision conflicts with this
rule. Instead, it again excuses itself from applying the applicable rules
by asserting that this rule also does not apply to this case. In
particular, the court claims that “[n]either the government nor the
dissent cites to any case where the Supreme Court or this Court (or
any other appellate court) has ever upheld a BIA decision to reject a
claim for relief where the applicant’s testimony was found to be
credible and the applicant was denied such relief for lack of
corroboration, but neither the IJ nor the BIA addressed an unrebutted
30
expert declaration that corroborated the applicant’s claim.” Ante at
49-50.
In fact, there are several such cases. 22 The court is simply
wrong that our court’s statements about not needing to address every
piece of evidence have been “generally” employed “in situations
22 For example, in Hernandez v. Lynch, 644 F. App’x 61 (2d Cir. 2016), the
petitioner argued to the BIA that “the IJ erred in not considering his most
relevant piece of objective evidence—the expert affidavit” and that the
“only consideration the IJ gave [the] relevant expert testimony was to mark
it into evidence.” Petitioner’s Br. 18-19, Hernandez v. Lynch, 644 F. App’x 61
(2d Cir. 2016) (No. 14-1770), ECF No. 65. Without discussing the contents of
the expert report, the BIA rejected this argument because “the Immigration
Judge is not required to discuss every single piece of evidence in the record
and provide a detailed discussion of every contention raised.” Cert. Admin.
R. at 69, Hernandez v. Lynch, 644 F. App’x 61 (2d Cir. 2016) (No. 14-1770),
ECF No. 55. On appeal, we affirmed the BIA, holding that “we find no error
in the IJ’s failure to explicitly discuss the report of Hernandez’s expert
witness.” Hernandez, 644 F. App’x at 63 (citing Xiao Ji Chen, 471 F.3d at 338
n.17). Similarly, in Xiu Yun Zheng v. BIA, 191 F. App’x 42 (2d Cir. 2006), the
petitioner claimed that the BIA erred because it “uncritically … relied on
reports of claims by the Chinese government that it doesn’t forcibly sterilize
its citizens” while ignoring “the testimony and affidavit of … a recognized
expert on coercive family planning, that directly addressed these denials.”
Petitioner’s Br. 8, Xiu Yun Zheng v. BIA, 191 F. App’x 42 (2d Cir. 2006) (No.
05-1910), 2005 WL 5338129. We rejected this argument because “this Court
has rejected any implication that where the BIA has given reasoned
consideration to the petition, and made adequate findings, it must
expressly parse or refute on the record each individual argument or piece
of evidence offered by the petitioner.” Xiu Yun Zheng, 191 F. App’x at 45
(internal quotation marks omitted). In that case, the IJ had even found that
the petitioner “had established through subjective and objective evidence
that she had a well-founded fear of future persecution if returned to China,”
and the BIA did not dispute that her fear of future persecution was
subjectively genuine. Matter of Zheng, No. A78-289-452, slip op. at 1-2 (B.I.A.
Mar. 28, 2005).
31
involving a failure to refute every argument or piece of evidence
relating to a petitioner’s credibility assessment.” Ante at 42. 23 But
23 In just a few recent examples, we have applied this principle to reject the
contention that the agency “mischaracterized the record when [it] stated
that [the petitioner] failed to indicate the nature of the political opinion of
her student group,” Diaz Carranza v. Garland, 859 F. App’x 594, 595-96 (2d
Cir. 2021) (citing Xiao Ji Chen, 471 F.3d at 336 n.17, and Mendez, 566 F.3d at
323); to affirm the agency’s denial of an alien’s application for cancelation
of removal following his conviction for reckless assault of a child although
the agency “did not explicitly reference a medical report,” Cruz v. Wilkinson,
848 F. App’x 14, 16 (2d Cir. 2021) (citing Jian Hui Shao, 546 F.3d at 169, and
Xiao Ji Chen, 471 F.3d at 336 n.17); to affirm the BIA’s denial of the
petitioner’s motion to remand because “the BIA was not required to
expressly address newly promulgated religious regulations discussed in a
report Wang submitted on appeal,” Yi Lun Wang v. Garland, 857 F. App’x
679, 682 (2d Cir. 2021) (citing Jian Hui Shao, 546 F.3d at 169); to resolve an
ambiguity as to the incident of “public intoxication” on which the agency
relied in the agency’s favor, Medrano Medrano v. Garland, 852 F. App’x 586,
588 (2d Cir. 2021) (citing Mendez, 566 F.3d at 323, and Jian Hui Shao, 546 F.3d
at 169); to affirm the agency’s decision because even though “the agency
may not have summarized the criminal record with perfect accuracy,” these
mischaracterizations were not “serious,” id. (citing Mendez, 566 F.3d at 323);
to reject the argument that “the agency overlooked circumstances
surrounding [the petitioner’s] criminal charges,” id. (citing Jian Hui Shao,
546 F.3d at 169); to hold that the agency “did not err in failing to consider[,
among other things,] an expert affidavit” when it denied relief under the
CAT because the agency concluded that the evidence did not show that the
petitioner “would ‘more likely than not’ be tortured upon his return” to El
Salvador, Coreas-Alvarado v. Barr, 838 F. App’x 594, 598 (2d Cir. 2020) (citing
Xiao Ji Chen, 471 F.3d at 336 n.17, and Jian Hui Shao, 546 F.3d at 169); to rule
that the agency’s hardship determination did not totally overlook or
seriously mischaracterize material facts because “the agency was not
required to explicitly consider evidence of the number of asthma deaths in
Sri Lanka,” Amarasinghe v. Barr, 831 F. App’x 14, 15 (2d Cir. 2020) (citing Zhi
Yun Gao, 508 F.3d at 87, and Xiao Ji Chen, 471 F.3d at 336 n.17); to affirm the
agency’s holding that the petitioner “did not establish a pattern or practice
32
even if cases reflecting a specific fact pattern did not exist, we would
still be required to apply the principles articulated in Ming Dai, Jian
Hui Shao, Zhi Yun Gao, Xiao Ji Chen, and Mendez. These decisions did
not purport to limit the principles governing our review of agency
decisions to “situations involving … a petitioner’s credibility
assessment.” Id. That distinction has no basis in our case law. 24
of persecution of Tamils and returning asylum seekers in Sri Lanka”
because we “presume that the agency has taken into account all of the
evidence before it, unless the record compellingly suggests otherwise,”
Balasegarathum v. Barr, 827 F. App’x 90, 94 (2d Cir. 2020) (alterations
omitted) (quoting Xiao Ji Chen, 471 F.3d at 336 n.17); to reject, in the context
of lack of notice of an in absentia removal order, the contention that “the
agency’s proceedings violated due process because the IJ did not explicitly
discuss some of the relevant factors,” Da Silva v. Barr, 827 F. App’x 52, 56
(2d Cir. 2020) (citing Zhi Yun Gao, 508 F.3d at 87, and Xiao Ji Chen, 471 F.3d
at 336 n.17); and to reject the contention that “the agency failed to consider
[a] psychological evaluation merely because it did not explicitly consider
it.” Roldan v. Barr, 820 F. App’x 77, 79 (2d Cir. 2020) (citing Mendez, 566 F.3d
at 323). Moreover, Hernandez and Xiu Yun Zheng, mentioned above, applied
this principle in the context of the agency’s consideration of expert evidence
for asylum, withholding of removal, and CAT claims. We have applied this
principle hundreds of times, and not only in situations “relating to a
petitioner’s credibility assessment.” Ante at 42.
24 I further note that it is unclear why the court thinks that Ojo “was denied
such relief for lack of corroboration.” Ante at 50. The agency rejected Ojo’s
evidence because it was not probative, not because it was uncorroborated.
Even if Ojo’s evidence related to his claims of torture were corroborated
and deemed credible, that evidence still would not suffice to show that he
is more likely than not to be tortured. As the agency explained, that
evidence does not show that Ojo in particular is more likely than any other
criminal in Nigeria to be subjected to serious mistreatment. We have
repeatedly upheld the denial of CAT relief when an applicant relies on
general or anecdotal evidence but presents no particularized evidence
33
If the court wants to reconsider our precedents holding that an
applicant must produce evidence about his particular circumstances
and that harsh prison conditions do not amount to torture, it should
say so. But there is no justification for vacating the agency’s decision
based on yet another purported procedural error and remanding for
the agency to add yet more magic words.
* * *
The court’s decision is simultaneously nitpickingly narrow and
dramatically sweeping. In arrogating to itself the power to vacate
agency decisions whenever it objects to a single jot or tittle in the
agency’s opinions, the court alters the relationship between agencies
and reviewing courts. In doing so, the court departs from the
principle that “a reviewing court is ‘generally not free to impose’
additional judge-made procedural requirements on agencies that
Congress has not prescribed and the Constitution does not compel.”
Ming Dai, 141 S. Ct. at 1677 (quoting Vt. Yankee, 435 U.S. at 524). The
court’s high-minded platitudes about “fairness” and “public
confidence” do not grant it permission to establish new procedural
requirements. Ante at 48. It is for Congress, not the courts, to
determine the procedures for “reviewing immigration decisions
where an individual’s ability to legally remain in the United States
hangs in the balance.” Id. This procedure is governed by statute, and
we do not have the authority to add additional procedures not
mandated by that statute or by the Constitution. Vt. Yankee, 435 U.S.
at 524. The court’s statement that “we demand no less” in
immigration proceedings than in cases not governed by the INA is an
showing that the applicant himself is more likely than not to be tortured.
See Mu Xiang Lin, 432 F.3d at 158; Lin Zhong, 480 F.3d at 126 n.26.
34
admission that the court is inventing its own procedural requirements
regardless of what the INA requires. Ante at 48. I dissent.
35