Miguel Arevalo-Quintero v. Merrick Garland ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1904
MIGUEL ANGEL AREVALO QUINTERO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
--------------------------------
RETIRED IMMIGRATION JUDGES AND FORMER MEMBERS OF THE
BOARD OF IMMIGRATION APPEALS,
Amicus Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 8, 2020 Decided: May 26, 2021
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Petition for review granted and remand awarded by published opinion. Judge Wynn wrote
the opinion, in which Judge Floyd joined. Judge Motz wrote an opinion concurring in the
judgment.
ARGUED: Susan Baker Manning, MORGAN LEWIS & BOCKIUS, LLP, Washington,
D.C., for Petitioner. Jenny Chong Lee, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Patrick A. Harvey, Clara Kollm,
MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Petitioner. Joseph H. Hunt,
Assistant Attorney General, Jonathan Robbins, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. Steven H. Schulman, AKIN GUMP STRAUSS
HAUER & FELD LLP, Washington, D.C., for Amici Retired IJs and Former Members of
the Board of Immigration Appeals.
2
WYNN, Circuit Judge:
Petitioner Miguel Angel Arevalo Quintero seeks review of the Board of
Immigration Appeals’ final order affirming the denial of his application for asylum,
withholding of removal, and protection under the Convention Against Torture. His petition
alleges that the immigration judge and the Board of Immigration Appeals made several
legal errors in their consideration of his claims for withholding of removal and Convention
Against Torture relief. 1 This case also presents an important question of first impression in
our Circuit: whether immigration judges have a legal duty to develop the record.
For the reasons set forth below, we hold that they do. Accordingly, we grant the
petition for review, vacate the denial of Petitioner’s application for withholding of removal
and protection under the Convention Against Torture, and remand for further proceedings
consistent with this opinion.
I.
A.
Petitioner was born in 1994 in El Salvador, a country long plagued by rampant gang
violence and instability. Salvadoran gangs “exercise extraordinary levels of social control
over the population . . . [,] principally through the use of threats and violence to create a
1
Petitioner does not contest the agency’s determination that his asylum application was
time-barred. Thus, he has waived any arguments related to that determination on appeal.
See Fed. R. App. P. 28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999).
3
pervasive atmosphere of fear.” A.R. 215. 2 These gangs actively recruit young men and
boys in their territories, and those who resist recruitment are generally seen as challenging
the gang’s authority and often suffer violence or even death as a result. 3 The two major
gangs in El Salvador are MS-13 and Barrio-18. 4
In September 2012, Petitioner, then a teenager, joined MS-13. 5 Within a few months
of joining MS-13, he realized he had made a mistake, as the gang made him collect
extortion money and deliver drugs. Feeling that he “just couldn’t take it anymore,”
Petitioner decided to leave the gang. A.R. 171.
But when Petitioner told the gang about his intent to leave, MS-13 members called
him to an isolated place, beat him, and threatened to kill him. They told him that he could
not leave the gang and warned that if he tried to do so, he would “get burned.” A.R. 172.
Shortly after this incident, Petitioner received a threatening phone call from a gang member
who was in prison and who warned that Petitioner and his family would be in danger if he
left the gang.
2
Citations to “A.R. _” refer to the Administrative Record filed by the parties in this appeal.
3
In 2015, El Salvador had the highest homicide rate in the world, with the vast majority of
victims being men and boys between the ages of 15 and 34.
4
Mara Salvatrucha, better known as MS-13, is a transnational criminal gang that was
founded in Los Angeles in the 1980s by Salvadoran immigrants fleeing the civil war.
5
The following account is generally based on Petitioner’s testimony before the
immigration judge. As explained below, we must assume his testimony to be credible for
purposes of this appeal. See infra, Part II.
4
Fearing for his life, Petitioner continued to pick up extortion money for MS-13 from
time to time, but he remained committed to leaving the gang. Realizing that leaving El
Salvador was “the only way to flee from th[e] [gang],” A.R. 168, he left the country in June
2013 and arrived in the United States soon afterward.
But MS-13’s threats continued. For example, gang members in El Salvador sent him
a menacing Facebook message asking where he was and warning him, “we take some time,
but we don’t forget.” A.R. 174. Due to the “death threats” he had received from MS-13—
both in El Salvador and in the U.S.—Petitioner feared that the gang would murder him if
he were to return to El Salvador. A.R. 168. And for good reason. In 2015, MS-13 members
shot, dismembered, and beheaded Petitioner’s cousin, José Ramiro, in front of Ramiro’s
mother and 11-year-old sister because Ramiro tried to leave the gang.
In the U.S., Petitioner supported himself by working construction jobs. But at some
point in 2017, he became homeless. So when he met three young people who offered him
shelter in a vacant apartment in Prince George’s County, Maryland, he agreed to stay with
them. Petitioner did not disclose his past involvement with MS-13 to his roommates
because he was afraid of being located by the gang. And he wore long-sleeved shirts to
cover his gang tattoos.
On July 24, 2017, Prince George’s County police arrested Petitioner and the three
other unauthorized occupants in the apartment. While searching Petitioner, the officers saw
his gang tattoos and referred him to the county Gang Unit. Later that day, Immigration and
Customs Enforcement officers took Petitioner into custody. He has remained in
immigration detention ever since.
5
B.
On July 25, 2017, the Department of Homeland Security issued a Notice to Appear
and initiated removal proceedings against Petitioner. Over the next few months, Petitioner
appeared pro se at several master calendar hearings before an immigration judge, admitting
removability and expressing his fear of returning to El Salvador. He also filed a
handwritten, self-completed Form I-589 (Application for Asylum and for Withholding of
Removal).
On his Form I-589, Petitioner indicated that he sought asylum and withholding of
removal based on his membership in a particular social group, as well as protection under
the Convention Against Torture. On the form, he described fearing return to El Salvador
because he believed MS-13 would kill him for leaving the gang. He also noted that the
gang had already killed his cousin for the same reason and that MS-13 would kill anyone
who deserted it.
On December 13, 2017, Petitioner appeared pro se before an immigration judge for
an individual hearing on his I-589 application. In his testimony, he expressed fear that MS-
13 would kill him for leaving the gang if he were to return to El Salvador. He recounted
his brief involvement in the gang, the beating and death threats he had received upon
communicating his desire to leave MS-13, his decision to flee to the U.S., and the menacing
Facebook message he received from MS-13. Petitioner explained that MS-13 saw him as
a deserter since he told them he wanted to leave and then fled El Salvador shortly afterward.
He stated: “I’m [a] person that has left, fleeing them . . . [and] that’s something that they
don’t allow.” A.R. 184. Petitioner testified that the gang was “going to murder [him] if [he
6
went] back to El Salvador” because they had “already threatened” him along “with [his
murdered] cousin.” A.R. 175. He further stated: “[T]hey’re always going to find me.
They’re always going to know me, and they’re going to murder me because they don’t
forgive.” A.R. 176. In support of his I-589 application, Petitioner also submitted extensive
country-conditions evidence concerning gang violence in El Salvador.
On December 14, 2017, the immigration judge issued a written decision denying all
of Petitioner’s applications for relief. Notably, the immigration judge found Petitioner’s
testimony that he had left MS-13 and was no longer part of the gang to be not credible and
stated that the “adverse credibility determination . . . necessarily call[ed] into question all
aspects of [his] claim.” A.R. 136. The immigration judge further explained that she found
no reliable evidence in the record supporting Petitioner’s eligibility for asylum or
withholding of removal. But the immigration judge’s decision contained no discussion of
any particular social groups, other than a passing observation in a footnote that “[e]ven if
some of [Petitioner’s] testimony were taken as credible,” being “threatened while still a
gang member for indicating he wanted to leave . . . would not constitute a statutorily
protected ground.” Id.The immigration judge also denied Convention Against Torture relief, concluding
that Petitioner had failed to demonstrate that he would more likely than not be tortured in
El Salvador “with the consent or acquiescence of the government.” Id. Accordingly, the
immigration judge ordered that Petitioner be removed to El Salvador.
Petitioner appealed the immigration judge’s decision to the Board of Immigration
Appeals, again proceeding pro se. In an unpublished, nonprecedential opinion, the Board
7
of Immigration Appeals affirmed the immigration judge’s decision. Petitioner then sought
this Court’s review. The Government moved to remand the case so that the Board of
Immigration Appeals could consider the impact, if any, of its intervening decision in Matter
of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018). We granted the motion to remand.
On remand, the Board of Immigration Appeals again affirmed the immigration
judge’s denial of all requested relief and dismissed Petitioner’s appeal in an unpublished,
nonprecedential decision. The Board of Immigration Appeals also denied Petitioner’s
motion to remand the case to the immigration judge. Petitioner timely appealed to this
Court and filed an emergency motion for stay of removal. We granted the motion and
stayed his removal pending disposition of the present petition.
II.
This Court has jurisdiction to review “final orders of removal.” 8 U.S.C.
§ 1252(a)(1). “Where, as here, [the Board of Immigration Appeals’] decision has adopted
and supplemented an [immigration judge’s] decision, we are obliged to review both
rulings.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). We review factual findings
under the substantial evidence standard, treating them as “conclusive unless the evidence
was such that any reasonable adjudicator would have been compelled to a contrary view.”
Id. We review legal conclusions de novo. Orellana v. Barr, 925 F.3d 145, 151 (4th Cir.
2019). Here, because the Board of Immigration Appeals’ decision subject to our review
8
was an unpublished, nonprecedential opinion, it is not entitled to Chevron deference 6—
although we may accord it Skidmore deference. 7 See Amos v. Lynch, 790 F.3d 512, 518
(4th Cir. 2015); Martinez, 740 F.3d at 909–10. Ultimately, we must affirm the Board of
Immigration Appeals’ decision unless it is “manifestly contrary to the law and an abuse of
discretion.” Tassi, 660 F.3d at 719; see also 8 U.S.C. § 1252(b)(4)(D).
“These standards demand deference, but they do not render our review toothless.”
Orellana, 925 F.3d at 151. The Board of Immigration Appeals abuses its discretion if it
“fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s]
important aspects of the applicant’s claim.” Tassi, 660 F.3d at 719.
Also importantly, although the immigration judge found parts of Petitioner’s
testimony to be not credible, we must assume that he testified credibly because both of the
Board of Immigration Appeals’ decisions below assumed so without ever addressing the
issue. This Court may only reach issues decided by the Board of Immigration Appeals
because issues unaddressed by the Board are not part of the final order of removal and thus
6
We generally give deference to the Board of Immigration Appeals’ interpretations of the
Immigration and Nationality Act, “recognizing that Congress conferred on the [Board]
decisionmaking power to decide such questions of law.” Martinez v. Holder, 740 F.3d 902,
909 (4th Cir.), as revised (Jan. 27, 2014); see also Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984).
7
Even where Chevron deference does not apply, we may rely on an agency’s opinions as
a “body of experience and informed judgment to which” we may “properly resort for
guidance.” A.T. Massey Coal Co. v. Holland, 472 F.3d 148, 168–69 (4th Cir. 2006)
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). “But even that modest
deference depends upon ‘the thoroughness evident in [the Board of Immigration Appeals’]
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade.’” Martinez, 740
F.3d at 910 (alteration modified) (quoting A.T. Massey Coal, 472 F.3d at 168–69).
9
fall outside the scope of our jurisdiction. Amaya v. Rosen, 986 F.3d 424, 429 (4th Cir.
2021); see also 8 U.S.C. § 1252(a)(1) (limiting federal court jurisdiction to final orders of
removal).
Accordingly, where the Board of Immigration Appeals does not expressly affirm,
adopt, or reject an immigration judge’s credibility ruling, we lack jurisdiction to review it.
In such situations, we have assumed the petitioner to be credible in reviewing the questions
presented to us. See, e.g., Lin v. Mukasey, 517 F.3d 685, 687–88 (4th Cir. 2008). This
practice is consistent with the approach of our sister circuits. E.g., Margos v. Gonzales, 443
F.3d 593, 597 (7th Cir. 2006); Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Krotova
v. Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005); Kayembe v. Ashcroft, 334 F.3d 231,
234–35 (3d Cir. 2003). Thus, for purposes of the present petition, we will assume, without
deciding, that Petitioner’s account—i.e., that he is a former MS-13 member who fled El
Salvador to leave and escape the gang—is credible.
III.
Petitioner first argues that the immigration judge and the Board of Immigration
Appeals erred in denying his application for withholding of removal. Specifically, he
contends that the immigration judge had a duty to fully develop the record as to two
particular social groups plainly supported by his factual allegations—former MS-13
members in El Salvador who left the gang without permission and family members of José
Ramiro (his murdered cousin)—and that the immigration judge reversibly erred in failing
to fulfill that duty or to analyze those groups in evaluating his application for withholding
of removal. Petitioner further claims that the Board of Immigration Appeals erred in (1)
10
relying on Matter of W-Y-C- to bar consideration of the two particular social groups
mentioned above and (2) mischaracterizing his claim and analyzing a group that he never
put forward—current MS-13 members who are threatened for wanting to leave the gang.
As explained below, we hold that immigration judges have a legal duty to develop
the record, which takes on particular importance in pro se cases, and that the immigration
judge in this case erred in failing to discharge that duty. We also conclude that the Board
of Immigration Appeals erred in refusing to consider Petitioner’s proposed particular social
groups based on Matter of W-Y-C- and in mischaracterizing his claim.
A.
As an initial matter, we consider whether immigration judges have any duty to
develop the record in immigration court proceedings. In keeping with the unanimous view
among our sister circuits, we conclude that immigration judges do have such a duty. 8 This
8
While our sister circuits agree that immigration judges have a duty to develop the record
in at least some contexts, their views diverge as to whether such a duty applies in all cases.
Some circuits have deemed this duty to be generally applicable in all immigration court
proceedings. See, e.g., Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Hasanaj v.
Ashcroft, 385 F.3d 780, 783 (7th Cir. 2004). Others have recognized it only in cases
involving pro se respondents, although none of those courts have expressly foreclosed the
possibility of a general duty. See, e.g., Al Khouri v. Ashcroft, 362 F.3d 461, 464–65 (8th
Cir. 2004); Jacinto v. INS, 208 F.3d 725, 734 (9th Cir. 2000). Then there are some circuits
that have not specified whether the duty applies generally or only in the pro se context.
See, e.g., Mekhoukh v. Ashcroft, 358 F.3d 118, 129–30 & n.14 (1st Cir. 2004); Toure v.
Att’y Gen. of U.S., 443 F.3d 310, 325 (3d Cir. 2006). As we explain below in greater detail,
we are persuaded that immigration judges have a general duty to develop the record in all
cases before them, and that this duty is especially important in pro se cases. In recognizing
the general duty, we deem it appropriate to rely on cases from all of the other circuits,
because they draw support from legal bases that are applicable regardless of whether or not
a respondent is represented.
11
obligation is rooted first and foremost in the text of the Immigration and Nationality Act,
but also finds support in our jurisprudence concerning Social Security disability hearings
and in international refugee law.
Although the Fourth Circuit has not yet recognized in a published decision
immigration judges’ duty to develop the record, we have done so in unpublished opinions, 9
which puts us in line with every circuit to have considered the issue as well as the Board
of Immigration Appeals. See, e.g., Agyeman v. INS, 296 F.3d 871, 877, 883–84 (9th Cir.
2002); Mendoza-Garcia v. Barr, 918 F.3d 498, 504–05 (6th Cir. 2019); Al Khouri v.
Ashcroft, 362 F.3d 461, 464–65 (8th Cir. 2004); United States v. Copeland, 376 F.3d 61,
71 (2d Cir. 2004); Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir. 2004); Mekhoukh v.
Ashcroft, 358 F.3d 118, 129–30 & n.14 (1st Cir. 2004); Toure v. Att’y Gen. of U.S., 443
F.3d 310, 325 (3d Cir. 2006); Matter of S-M-J-, 21 I. & N. Dec. 722, 723–24, 729 (BIA
1997); Matter of E-F-H-L-, 26 I. & N. Dec. 319, 323–24 (BIA 2014), vacated on other
grounds, 27 I. & N. Dec. 226 (A.G. 2018); see also Solis Romero v. Barr, 769 F. App’x
126, 127 (5th Cir. 2019); Zheng v. Holder, 507 F. App’x 755, 762 (10th Cir. 2013).
In recognizing such a duty, courts of appeals and the Board of Immigration Appeals
have relied on several sources of authority. First, they have grounded the duty principally
in a provision of the Immigration and Nationality Act which commands immigration
9
See Chen v. Holder, 531 F. App’x 364, 370 n.7 (4th Cir. 2013) (acknowledging that “an
[immigration judge] has a role in the development of the record”); Mohammed v. Holder,
424 F. App’x 215, 216 (4th Cir. 2011) (suggesting that immigration judges have an
obligation to “aid in the development of the record” in pro se cases (quoting Matter of J-
F-F-, 23 I. & N. Dec. 912, 922 (A.G. 2006))).
12
judges to “administer oaths, receive evidence, and interrogate, examine, and cross-examine
the [noncitizen] and any witnesses” in removal proceedings. 8 U.S.C. § 1229a(b)(1). Based
on this statutory requirement, our sister circuits have held that “unlike an Article III judge,”
an immigration judge “is not merely the fact finder and adjudicator but also has an
obligation to establish the record.” Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002)
(citing § 1229a(b)(1)); see also Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.
2009) (stating that the immigration judge’s “obligation [to develop the record] is founded
on his statutory duty” under § 1229a(b)(1)); Hasanaj, 385 F.3d at 783 (citing § 1229a(b)(1)
and Yang, 277 F.3d at 162); Constanza-Martinez v. Holder, 739 F.3d 1100, 1102–03 (8th
Cir. 2014) (same); Mekhoukh, 358 F.3d at 129–30 n.14 (same). The Board of Immigration
Appeals and the Attorney General have likewise grounded immigration judges’ “duty to
fully develop the record” in § 1229a(b)(1). Matter of E-F-H-L-, 26 I. & N. Dec. at 323–24
(citing § 1229a(b)(1)); see also Matter of J-F-F-, 23 I. & N. Dec. at 922 (same).
Second, our sister circuits have held that immigration judges’ duty to develop the
record is an essential requirement of a full and fair hearing to which noncitizens in removal
proceedings are entitled under the Due Process Clause of the Fifth Amendment. 10 See, e.g.,
Agyeman, 296 F.3d at 877; Al Khouri, 362 F.3d at 464–65; Mendoza-Garcia, 918 F.3d at
504; see also Mekhoukh, 358 F.3d at 129–30 (considering whether the petitioner’s “hearing
was fundamentally unfair because the immigration judge failed to fully develop the
10
“It is well established that the Fifth Amendment entitles [noncitizens] to due process of
law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993).
13
record”); In Re: Compre-Tavares, No. AXX XX4 184 - FLOR, 2008 WL 2782951, at *1
(BIA June 20, 2008) (concluding that a noncitizen “did not receive a full and fair hearing”
because he was prejudiced by the immigration judge’s failure to “develop a complete
record”). Specifically, the Ninth Circuit has explained that noncitizens in removal
proceedings are entitled to certain procedural protections provided by statute or
regulation—including those provided in § 1229a(b)(1)—and that a prejudicial denial of
any of those protections violates “the constitutional guarantee of due process.” 11 Jacinto v.
INS, 208 F.3d 725, 727–28 (9th Cir. 2000).
Third, the earliest and most influential circuit-court decisions establishing
immigration judges’ duty to develop the record also relied on an analogy to the Social
Security disability context, where administrative law judges have a similar obligation. In
Jacinto v. INS, the Ninth Circuit observed that “[b]oth administrative settings have the
11
Although our holding today grounds immigration judges’ duty to develop the record in
8 U.S.C. § 1229a(b)(1), rather than due process, cases from our sister circuits that rely on
due process are no less relevant here. First, most of those circuits also recognize 8 U.S.C.
§ 1229a(b)(1) as a main source of the duty. See, e.g., Lacsina Pangilinan, 568 F.3d at 709;
Constanza-Martinez, 739 F.3d at 1102–03; Mekhoukh, 358 F.3d at 129–30 n.14. Second,
we have explained that the purpose of the procedural protections provided in the
Immigration and Nationality Act and related regulations—such as those set forth in 8
U.S.C. § 1229a(b)(1)—“is to ensure that a [noncitizen respondent] receives a meaningful
hearing” in accordance with the requirements of procedural due process. Rusu v. INS, 296
F.3d 316, 321 n.7 (4th Cir. 2002). Thus, following the Ninth Circuit’s lead, Rusu held that
a denial of such a statutory protection also deprives a noncitizen of “a full and fair hearing
consistent with due process.” Id. (citing Jacinto, 208 F.3d at 727–28). Given this
inextricable connection between due process and the statutory protections provided in the
Act—i.e., the common telos of ensuring a full and fair hearing for every noncitizen—we
deem it both appropriate and necessary to draw guidance from persuasive authorities
relying on due process.
14
common feature of determining the applicant’s eligibility for certain benefits,” and that
“both social security and deportation hearings are likely to be unfamiliar settings for the
applicant.” 208 F.3d at 733. Hence, the court reasoned that “the duty of the immigration
judge is analogous to that of the administrative law judge in social security disability cases[,
who] . . . has a duty to ‘fully and fairly develop the record.’” Id. (quoting Brown v. Heckler,
713 F.2d 441, 443 (9th Cir. 1983)).
Subsequently, in Yang v. McElroy, the Second Circuit likewise established
immigration judges’ duty to develop the record, drawing support from the Social Security
context. See 277 F.3d at 162–63 & n.3 (emphasizing that the court had “consistently” held
that a Social Security administrative law judge “ha[d] an affirmative obligation to develop
[the] administrative record”); see also id. at 163 n.3 (citing the Ninth Circuit’s analogy in
Jacinto). The Yang court also relied on the Supreme Court’s directive in Richardson v.
Perales that an administrative law judge must “act[] as an examiner charged with
developing the facts,” suggesting that the same is true for immigration judges. Id. at 162(quoting 402 U.S. 389, 410 (1971)). More recently, the Sixth Circuit similarly analogized
the duty imposed on immigration judges to administrative law judges’ duty to “develop the
record in the context of social security hearings.” Mendoza-Garcia, 918 F.3d at 504–05.
And other circuits, while not explicitly drawing analogies between the immigration and
Social Security contexts, have relied on Jacinto, Yang, and Richardson in recognizing
immigration judges’ duty to develop the record. See, e.g., Mekhoukh, 358 F.3d at 129–30
n.14; Hasanaj, 385 F.3d at 783; Al Khouri, 362 F.3d at 464–65.
15
In cases involving noncitizens seeking asylum or withholding of removal under 8
U.S.C. § 1231(b)(3), the Board of Immigration Appeals and federal courts have also
invoked the United States’ treaty obligations under the United Nations Convention
Relating to the Status of Refugees (“Refugee Convention”) as a source of immigration
judges’ duty to fully develop the record. In Matter of S-M-J-, the Board of Immigration
Appeals set forth the duties of immigration adjudicators in evaluating applications for
asylum and withholding of removal. See 21 I. & N. Dec. 722 (BIA 1997). The Board of
Immigration Appeals first discussed the Refugee Convention, the U.S.’s obligations
thereunder, and Congress’s intent to incorporate those obligations into domestic law via
the Refugee Act of 1980. Id. at 723. It then stated:
Although we recognize that the burden of proof in asylum and withholding
of deportation cases is on the applicant, we do have certain obligations under
international law to extend refuge to those who qualify for such relief . . . .
Because this Board, the Immigration Judges, and the Immigration and
Naturalization Service are all bound to uphold [the Refugee Act], we all bear
the responsibility of ensuring that refugee protection is provided where such
protection is warranted by the circumstances of an asylum applicant’s claim.
Id. (emphases added). Thus, the Board of Immigration Appeals explained, “a cooperative
approach in Immigration Court is particularly appropriate,” and immigration judges “have
a role in introducing [relevant] evidence into the record.” Id. at 723–24, 726. Drawing
substantial guidance from the Office of the United Nations High Commissioner for
Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, the
Board of Immigration Appeals held that “the duty to ascertain and evaluate all the relevant
facts is shared between the applicant and the examiner,” and that the adjudicator must
“[e]nsure that the applicant presents his case as fully as possible and with all available
16
evidence.” Id. at 729 (emphasis added) (alteration in original) (quoting Off. of the United
Nations High Comm’r for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to
the Status of Refugees, UN doc HCR/IP/4/Eng/Rev.3, paras. 196, 205 (1979, reissued 2019)
(“United Nations Handbook”)). 12
According to the Board of Immigration Appeals’ pronouncements in S-M-J-,
immigration adjudicators have an affirmative duty to assist and work with applicants to
ensure that asylum or withholding of removal is granted to those who qualify for such
protection based on their individual circumstances. And as relevant here, that obligation
encompasses the shared “duty to ascertain and evaluate all the relevant facts.” Id. (quoting
United Nations Handbook, para. 196). Notably, the Second and Ninth Circuits too have
relied substantially upon the same portions of the United Nations Handbook in recognizing
immigration judges’ duty to fully develop the record. See Yang, 277 F.3d at 162; Jacinto,
12
Paragraphs 66 and 67 of the United Nations Handbook, although not quoted in S-M-J-,
further note: “Often the applicant himself may not be aware of the reasons for the
persecution feared. It is not, however, his duty to analyze his case to such an extent as to
identify the reasons in detail.” United Nations Handbook, para. 66 (emphasis added).
Rather, “[i]t is for the examiner, when investigating the facts of the case, to ascertain the
reason or reasons for the persecution feared and to decide whether the [refugee] definition
. . . is met.” Id., para. 67 (emphases added). Although the views of the Office of the United
Nations High Commissioner for Refugees are not binding, federal courts, including this
Court and the Supreme Court, have long relied on its Handbook as a valuable interpretive
aid. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 438–39 & n.22 (1987) (noting that
the “Handbook provides significant guidance” in construing asylum law); M.A. AXXXXXXXX
v. INS, 858 F.2d 210, 214 (4th Cir. 1988) (same).
17
208 F.3d at 732–33 & n.5; see also Mekhoukh, 358 F.3d at 129–30 n.14 (1st Cir.) (quoting
Yang’s reference to the United Nations Handbook).
Today, we join the broad consensus among our sister circuits by holding that
immigration judges have a legal duty to fully develop the record in the cases that come
before them. Like the Board of Immigration Appeals and the other circuits to have
considered this issue, we are persuaded that such a duty necessarily arises from the dictates
of 8 U.S.C. § 1229a(b)(1) and, where relevant, the United States’ obligations under the
Refugee Convention. 13 Additionally, the duty to develop the record finds further support
in our Social Security disability jurisprudence, where we have long held that administrative
law judges have a “duty to fully inquire into the issues necessary for adequate development
of the record.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980). Like our sister circuits,
we deem the duties of immigration judges to be analogous to those of Social Security
administrative law judges. 14
13
As 8 U.S.C. § 1229a(b)(1) provides a sufficient legal basis for recognizing this duty, we
deem it unnecessary to engage in a separate due process analysis. But, as noted above, we
have previously held that a denial of a statutory protection provided in the Immigration and
Nationality Act also deprives the noncitizen of “a full and fair hearing consistent with due
process.” See Rusu, 296 F.3d at 321 n.7.
14
To be sure, there are differences between Social Security disability hearings and removal
proceedings. For instance, the former hearings, unlike removal hearings, are non-
adversarial in nature. See Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). Yet the
two contexts also share significant analogous elements. Both contexts involve civil
proceedings before a federal agency in which an administrative adjudicator determines an
applicant’s eligibility for certain benefits. And in both contexts, making that determination
requires a fact-intensive inquiry and the application of a complex body of law.
Additionally, just as Social Security administrative law judges have a duty to “look[] fully
into the issues,” “question[] [the claimant] and the other witnesses,” and “[a]ccept[] as
18
Despite the strong consensus on this matter, as noted, there is an important split
among the numerous circuits to have recognized this duty: while some circuits have
deemed immigration judges’ duty to develop the record to be generally applicable
regardless of whether the noncitizen is represented by counsel, others have recognized it
only in the pro se context, albeit without expressly ruling out the possibility of a general
duty. See supra note 8. We see no reason why this duty should not extend to all cases, and
accordingly, we join the first group of our sister circuits in recognizing its broad
applicability.
Notably, neither of the sources in which this obligation is rooted—the text of the
Act and international refugee law—limits this procedural protection to uncounseled
noncitizens. Specifically, we emphasize that 8 U.S.C. § 1229a(b)(1) governs all removal
proceedings, not just pro se cases. Nor would the United States’ obligations under the
Refugee Convention, as interpreted by the Board of Immigration Appeals in Matter of S-
M-J-, be any less enforceable in counseled cases.
Moreover, in the Social Security disability context, administrative law judges’ “duty
to fully and fairly develop the record . . . exists even when the claimant is represented by
counsel.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); see also Marsh, 632 F.2d
evidence any documents . . . material to the issues,” 20 C.F.R. § 404.944, immigration
judges have a similar obligation to “receive evidence[] and interrogate, examine, and cross-
examine the [noncitizen] and any witnesses,” 8 U.S.C. § 1229a(b)(1). And the fact that we
have recognized and enforced Social Security administrative law judges’ duty to develop
the record for more than forty years demonstrates the practicability and value of
recognizing a similar duty for immigration judges.
19
at 299 (4th Cir.); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994); Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000). Given that we find the duty of immigration judges to be
analogous to that of Social Security administrative law judges, we deem it appropriate not
to limit immigration judges’ obligation to pro se cases.
For these reasons, we hold that immigration judges are charged with a duty to fully
develop the record in all cases before them.
B.
That being said, we wholly agree with our sister circuits that, in light of the
significant challenges pro se individuals in removal proceedings face, such individuals
have a particularly strong need for procedural protections, without which they would not
be able to “receive[] a meaningful hearing.” Rusu, 296 F.3d at 321 n.7. Accordingly, we
hold that immigration judges’ duty to fully develop the record—while applicable in all
cases—becomes especially crucial in cases involving unrepresented noncitizens.
Other circuits, the Attorney General, and the Board of Immigration Appeals alike
have emphasized the importance of this duty in the pro se context, citing three main
rationales: (1) the abstruse nature of immigration law; 15 (2) the substantial disadvantages
faced by uncounseled noncitizens generally due to factors such as a lack of English
proficiency and relevant legal knowledge; and (3) the gravity of the interests at stake—
15
See Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) (observing that, “[w]ith
only a small degree of hyperbole, the immigration laws have been termed ‘second only to
the Internal Revenue Code in complexity’”); Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003)
(noting the “labyrinthine character of modern immigration law”).
20
especially for individuals seeking protection from persecution or torture. See, e.g., Jacinto,
208 F.3d at 732–34; Al Khouri, 362 F.3d at 464–65; Mendoza-Garcia, 918 F.3d at 504–
05; Copeland, 376 F.3d at 71; Matter of J-F-F-, 23 I. & N. Dec. at 922; In Re: Compre-
Tavares, 2008 WL 2782951, at *1 (emphasizing the immigration judge’s “responsibility
to develop a complete record” in light of the pro se respondent’s limited legal knowledge).
Accordingly, courts have held that in cases involving pro se noncitizens, “it is critical that
the [immigration judge] ‘scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts.’” Agyeman, 296 F.3d at 877 (quoting Jacinto, 208 F.3d
at 733). “Otherwise, such [noncitizens] would have no way of knowing what information
was relevant to their cases and would be practically foreclosed from making a case against
removal.” Copeland, 376 F.3d at 71. 16
16
Corroborating the truth of this observation, a study of 1.2 million removal cases decided
between 2007 and 2012 shows that noncitizens with counsel were 5.5 times more likely
than those without to obtain relief, after controlling for other variables. See Ingrid V. Eagly
& Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa.
L. Rev. 1, 57 (2015). Detained noncitizens with counsel were 10.5 times more likely than
their pro se counterparts to obtain a successful outcome (i.e., grant of relief or case
termination), while never-detained individuals with counsel were 3.5 times more likely to
avoid removal than never-detained pro se respondents. See id. at 49; see also Robert A.
Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J.
Legal Ethics 3, 4 (2008) (“The importance of quality representation . . . is especially acute
for immigrants, not only because the stakes are often so high . . . but also because there is
a wide disparity in the success rate of those who have lawyers and those who proceed pro
se.”); Sabrineh Ardalan, Access to Justice for Asylum Seekers: Developing an Effective
Model of Holistic Asylum Representation, 48 U. Mich. J. L. Reform 1001, 1003 & n.6
(2015) (discussing a 2010 study which found that pro se asylum seekers were nearly 5
times less likely to obtain relief than those with representation).
21
In light of these important considerations, we join two of our sister circuits in
holding that immigration judges’ duty to fully develop the record becomes particularly
important in cases involving uncounseled noncitizens. 17 See Delgado v. Mukasey, 508 F.3d
702, 706 (2d Cir. 2007) (holding that immigration judges have “an affirmative obligation
to help establish and develop the record . . . especially when . . . [a noncitizen] is
unrepresented by counsel” (emphasis added) (internal quotation marks and citations
omitted)); Barragan-Ojeda v. Sessions, 853 F.3d 374, 381 (7th Cir. 2017) (affirming that
immigration judges have “an obligation to establish the record” and stressing that
“[p]articularly with a pro se respondent[,] . . . fair questioning by the [immigration judge]”
is required to obtain all information “necessary for a reasoned decision” (emphasis added)
(quoting Hasanaj, 385 F.3d at 783)). As we have previously explained, “the purpose” of
such statutory protections “is to ensure that [every noncitizen respondent] receives a
meaningful[,] . . . full[,] and fair hearing.” Rusu, 296 F.3d at 321 n.7. Given the sheer
difficulty of “navigating an unfamiliar legal system [without counsel] while facing the
daunting prospect of deportation,” pro se individuals are deprived of adequate hearings
17
This holding is also consistent with our precedent recognizing that immigration judges’
duty to ensure that the noncitizen sufficiently understands their appeal rights becomes
“especially important” in pro se cases, Narine v. Holder, 559 F.3d 246, 250–51 (4th Cir.
2009); that federal courts have an obligation to liberally construe pro se complaints,
“however inartfully pleaded,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)); and, in the Social Security context, that although
Social Security administrative law judges have a duty to aid all claimants in developing the
record, they have a “heightened responsibility” to “help[] [pro se] claimants” do so, Sims
v. Harris, 631 F.2d 26, 28 (4th Cir. 1980).
22
when they are thrown into removal proceedings and left to sink or swim without adequate
assistance from the immigration judge. Diop v. Lynch, 807 F.3d 70, 76 (4th Cir. 2015).
C.
In the instant case, Petitioner appeared without counsel before the immigration
judge. It is thus necessary for us to determine what immigration judges’ duty to fully
develop the record entails in pro se cases. In doing so, we draw guidance from the decisions
of our sister circuits.
Courts have held—and we agree—that in pro se cases, immigration judges’ duty to
develop the record includes adequately explaining the hearing procedures and the relevant
legal requirements in plain language. See Jacinto, 208 F.3d at 728, 734–35; Copeland, 376
F.3d at 71 (“Given that [immigration judges] have a duty to develop the administrative
record, . . . our removal system relies on [them] to explain the law accurately to pro se
[noncitizens].”). In particular, immigration judges must provide respondents with sufficient
guidance as to how they may prove the elements of their claims—i.e., “what evidence will
demonstrate their eligibility for relief from deportation” and “in what form that evidence
could be presented.” Agyeman, 296 F.3d at 883–84.
In doing so, immigration judges “must be responsive to the particular circumstances
of [each] case, including what types of evidence the [noncitizen] can and cannot reasonably
be expected to produce in support of his applications for relief from deportation.” Id. at
884. “Sensitivity to what evidence the [noncitizen] can reasonably be expected to produce
is especially critical” for detained respondents like Petitioner, as they “may have limited
access to relevant documents and will, therefore, depend even more heavily on the
23
[immigration judge] for assistance in identifying appropriate sources of evidence to support
[their] claim.” Id. Additionally, we agree with our sister circuits that immigration judges
have a duty to probe into, inquire of, and elicit all facts relevant to a respondent’s claims,
see, e.g., id. at 877, 883–84; Mendoza-Garcia, 918 F.3d at 504; Al Khouri, 362 F.3d at 465,
and that they “must be especially diligent in ensuring that favorable as well as unfavorable
facts and circumstances are elicited,” Jacinto, 208 F.3d at 733 (quoting Key v. Heckler,
754 F.2d 1545, 1551 (9th Cir. 1985)).
As indicated by persuasive authority from other circuits, immigration judges’ duty
requires more than just asking a specific number of relevant questions. For instance, in
Jacinto, the Ninth Circuit held that the immigration judge’s inadequate probing into the
relationship between the asylum-seeking petitioner’s political opinions and the feared harm
had deprived the petitioner of a full and fair hearing, even though the immigration judge
had actively questioned her throughout the hearing. See 208 F.3d at 731–32, 734–35. The
court also found that the immigration judge had further erred in failing to ensure that the
petitioner adequately understood the hearing procedures, the relevant legal requirements,
and the questions presented to her. See id.Similarly, in Mendoza-Garcia, the Sixth Circuit noted that even where an
immigration judge “ask[s] relevant questions,” “the superficial quality of the questioning”
may nonetheless deprive a noncitizen of a full and fair hearing. 918 F.3d at 507 (quoting
Lashley v. Sec’y of Health & Hum. Servs., 708 F.2d 1048, 1053 (6th Cir. 1983)). In
particular, the court deemed it potentially problematic that the immigration judge had
“rarely asked for clarification and moved quickly from topic to topic” despite the fact that
24
“responses elicited” through “two layers of translation” were “unusually prone to error and
confusion.” Id.Furthermore, other courts have held that immigration judges may not
“circumscrib[e] [a respondent’s] ability to elaborate on the details of his claim by
instructing him only to answer the questions asked,” Al Khouri, 362 F.3d at 465, or “correct
[their] failure to probe more deeply by simply asking the [noncitizen] whether he has
‘anything to add in support of his claim,’” Lacsina Pangilinan, 568 F.3d at 709 (quoting
Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000)). As these cases demonstrate, the
purpose of these procedural safeguards is to ensure that unrepresented noncitizens can
meaningfully participate in their removal proceedings and advocate for themselves with
reasonable competence—or, in other words, to ensure a full and fair hearing.
Importantly, we emphasize that the scope and substance of immigration judges’
duty to develop the record in pro se cases are not limited to what we describe here.
Moreover, because it is undisputed that Petitioner was a pro se respondent throughout the
proceedings before the immigration judge and the Board of Immigration Appeals, we need
not and do not explicitly delineate what this duty demands in cases involving counseled
noncitizens, individuals who are represented for part of their proceedings, or those
represented by incompetent counsel. That being said, we believe the various requirements
described above may also apply equally in other types of cases—for instance, where a
noncitizen is represented by ineffective counsel.
And while we outline these general principles to provide guidance to immigration
judges in the Fourth Circuit as well as to the Board of Immigration Appeals, what the
25
aforesaid duty requires of an immigration judge inevitably depends on the particulars of
each case—the respondent’s characteristics, such as age, education level, detention status,
and immigration history; the applicable ground(s) of removability; and the form(s) of relief
sought. Cf. Lashley, 708 F.2d at 1052 (“There is no bright line test for determining when
the administrative law judge has . . . failed to fully develop the record. The determination
in each case must be made on a case by case basis.”). Accordingly, we must now determine
what this duty entailed in the specific context presented by this case.
D.
Petitioner argues that when a pro se respondent seeks asylum or withholding of
removal based on his or her membership in a particular social group, the immigration judge
has a duty to fully develop the record as to the factual bases for that claim and to help the
respondent articulate a cognizable social group supported by those facts—to the extent that
one can be found. We agree.
Under the Act, an applicant for asylum has the burden to show that he or she is (1)
“unable or unwilling to return to, and is unable or unwilling to avail himself or herself of
the protection of, th[e] country [of removal]” (2) “because of persecution or a well-founded
fear of persecution” (3) “on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B).
Similarly, a noncitizen seeking withholding of removal must show that his or her “life or
26
freedom would be threatened” in the country of removal on account of one of the same five
protected grounds. Id. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). 18
Generally speaking, asylum eligibility and withholding-of-removal eligibility share
mostly identical requirements: (1) the feared or threatened harm must rise to the level of
“persecution” in severity; (2) the harm must be inflicted by “either a government or an
entity that the government cannot or will not control”; and (3) a statutorily protected
characteristic (i.e., race, religion, nationality, membership in a particular social group, or
political opinion) of the applicant must be “at least one central reason” for the feared
persecution. Crespin-Valladares v. Holder, 632 F.3d 117, 124–28 (4th Cir. 2011); see also
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
1208.16(b). The key difference between asylum and withholding-of-removal eligibility is
the requisite level of likelihood that the applicant would suffer persecution: whereas
asylum applicants need only show a “reasonable possibility” of persecution (a mere ten-
percent chance would suffice), Crespin-Valladares, 632 F.3d at 126 (quoting Cardoza-
Fonseca, 480 U.S. at 440), withholding applicants must show that they would more likely
18
Noncitizens may also seek withholding of removal under the Convention Against
Torture. See 8 C.F.R. § 1208.16(c). To qualify for this form of relief, an applicant must
“establish that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” Id. Unlike asylum or withholding of removal under 8 U.S.C.
§ 1231(b)(3), Convention Against Torture relief does not require a “nexus” between the
feared harm and one of the five enumerated grounds (race, religion, nationality,
membership in a particular social group, or political opinion). In this opinion, we use the
term “withholding of removal” to refer only to withholding under the Act (8 U.S.C.
§ 1231(b)(3)), since particular-social-group analysis—the key subject matter at issue
here—is irrelevant to withholding of removal under the Convention Against Torture.
27
than not be persecuted (i.e., higher than a fifty-percent chance), see 8 C.F.R. § 1208.16(b).
Establishing past persecution based on one of the protected grounds creates a rebuttable
presumption of a well-founded fear of future persecution for asylum or a sufficient
likelihood of future persecution for withholding of removal. 19 See 8 C.F.R.
§§ 1208.13(b)(1), 1208.16(b)(1).
In light of these similarities, most noncitizens seeking refuge from persecution apply
for both forms of relief. Accordingly, we use the term “asylum seeker” throughout this
opinion to refer to any applicant for asylum or withholding of removal, or both.
There are weighty reasons to construe immigration judges’ duty to develop the
record broadly in cases involving pro se asylum seekers. First, as the Board of Immigration
Appeals explained in Matter of S-M-J-, immigration judges (and the Board of Immigration
Appeals) have an obligation under international law and the Refugee Act of 1980 to
“ensur[e] that refugee protection is provided where such protection is warranted by the
circumstances of an asylum applicant’s claim.” Matter of S-M-J-, 21 I. & N. Dec. at 723.
Relying substantially on the United Nations Handbook, S-M-J- also emphasized the shared
duty of immigration judges “to ascertain and evaluate all the relevant facts” and to
“[e]nsure that the applicant presents his case as fully as possible and with all available
evidence.” Id. at 729 (alteration in original) (quoting United Nations Handbook, paras. 196,
205); see also United Nations Handbook, para. 67 (noting immigration adjudicators’ duty
19
Asylum and withholding of removal also have different bars to eligibility. Compare 8
U.S.C. § 1158(b)(2), and 8 C.F.R. § 1208.13(c), with 8 U.S.C. § 1231(b)(3)(B), and 8
C.F.R. § 1208.16(d)(2).
28
to “ascertain the reason or reasons for the persecution feared and to decide whether the
[refugee] definition” is met). In other words, under both international and U.S. refugee law,
immigration judges have an affirmative duty to work with asylum seekers to ensure that
protection is granted to those whose factual circumstances warrant it—especially where
the applicant has difficulty articulating the legal bases for his or her claim. 20
Moreover, the rationales for holding that immigration judges’ duty to develop the
record becomes especially important in pro se cases generally—discussed above—apply
with even greater force in pro se asylum or withholding-of-removal cases. While U.S.
immigration law is generally notorious for its esoteric nature, the law of asylum is one of
the more complex areas thereof. As relevant here, the law concerning particular social
groups is “rife with ambiguities, inconsistent applications, and circuit splits.” Br. of Amici
Curiae Retired Immigration Judges & Former Members of the Board of Immigration
Appeals (“Amicus Br.”) at 12; see also Fatin v. INS., 12 F.3d 1233, 1238 (3d Cir. 1993)
(“Both courts and commentators have struggled to define ‘particular social group.’ Read
in its broadest literal sense, the phrase is almost completely open-ended.”). Under the
20
Although S-M-J- concerned asylum and withholding of removal, the considerations
discussed therein apply at least as forcefully in Convention Against Torture cases. While
an individual who meets the refugee definition may still be denied asylum or withholding
of removal based on factors such as certain criminal convictions, the prohibition on
deporting a person to any country where he or she would more likely than not be subject
to torture is absolute. See Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (“[W]here
torture is sufficiently likely, [Convention Against Torture relief] does not permit any
discretion or provide for any exceptions.” (internal quotation marks omitted)); see also 8
C.F.R. § 1208.17(a). That being said, we do not address the nature and scope of
immigration judges’ duty to develop the record with regard to Convention Against Torture
claims, since Petitioner did not raise that issue here.
29
current framework, a noncitizen seeking asylum or withholding of removal based on
membership in a particular social group must show that the proposed group is legally
cognizable—i.e., “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014); see also Oliva v.
Lynch, 807 F.3d 53, 61 (4th Cir. 2015) (adopting M-E-V-G-’s three-part test).
While a particular social group’s cognizability often makes or breaks an asylum or
withholding claim, it is a highly technical legal issue, and “[e]ven experienced immigration
attorneys have difficulty articulating the contours of a [cognizable social group].”
Cantarero-Lagos v. Barr, 924 F.3d 145, 154 (5th Cir. 2019) (Dennis, J., concurring). Thus,
we deem it unreasonable and fundamentally unfair to expect pro se asylum seekers—many
of whom suffer from the effects of trauma and lack literacy, English proficiency, formal
education, and relevant legal knowledge—to even understand what a particular social
group is, let alone fully appreciate which facts may be relevant to their claims and articulate
a legally cognizable group. See Jacinto, 208 F.3d at 733 (discussing the challenges faced
by pro se asylum seekers); Amicus Br. at 9–10 (same). 21 And needless to say, these cases
per se implicate extremely weighty interests in life and liberty, as they involve individuals
21
See also Ardalan, supra note 16, at 1013–18 (“Obstacles like language barriers, past
trauma, limited legal knowledge, and restricted access to basic social services often impede
asylum seekers from effectively telling their stories. These obstacles may also prevent
asylum applicants from gathering the evidence necessary to carry their burden of proof.
Many asylum seekers flee their home countries with little other than the clothes on their
backs, so they may not have much proof to substantiate their asylum claims.”).
30
seeking protection from persecution, torture, or even death. See Xue v. Bd. of Immigr.
Appeals, 439 F.3d 111, 113–14 (2d Cir. 2006) (“We should not forget, after all, what is at
stake. For each time we wrongly deny a meritorious asylum [or withholding] application,
. . . we risk condemning an individual to persecution. Whether the danger is of religious
discrimination, extrajudicial punishment, forced abortion or involuntary sterilization,
physical torture or banishment, we must always remember the toll that is paid if and when
we err.”).
For these reasons, immigration judges, the Board of Immigration Appeals, and
courts of appeals have long assisted pro se asylum seekers with articulating a cognizable
particular social group. See Amicus Br. at 13–15; see also, e.g., Cece v. Holder, 733 F.3d
662, 670–71 (7th Cir. 2013); Paloka v. Holder, 762 F.3d 191, 198–99 (2d Cir. 2014); de
Abarca v. Holder, 757 F.3d 334, 336 (1st Cir. 2014); Matter of S-V-C-, AXXX XXX 431
(BIA Nov. 1, 2016). Indeed, the amici former immigration judges and members of the
Board of Immigration Appeals explain that it has been a decades-long “common practice
among Immigration Judges [to] enter[] into a dialogue with respondents to identify claims
for relief, including defining a legally sufficient particular social group.” 22 Amicus Br. at
1. The amici further emphasize that when they worked in the immigration system, they
22
The Government too acknowledges that “[w]hen an applicant claims to fear persecution
on account of a particular social group but fails to name the group, the immigration judges
routinely analyze the case on the facts” and may “infer” a particular social group. Resp.
Br. at 51 (citing Mayorga-Rosa v. Sessions, 888 F.3d 379, 382 (8th Cir. 2018), as an
example).
31
generally did not expect pro se applicants to even attempt to present particular social
groups.
All of these important considerations compel us to hold that immigration judges
have a broad and robust duty to help pro se asylum seekers articulate their particular social
groups. As the Ninth Circuit aptly observed in Jacinto, “a full exploration of all the facts
is critical to correctly determine whether [an asylum seeker] does indeed face persecution
in their homeland.” 208 F.3d at 733; see also id. (“[Upon removal, an asylum seeker] could
face a significant threat to his or her life, safety, and well-being. Should the immigration
judge fail to fully develop the record, information crucial to [the applicant’s] future [would]
remain[] undisclosed.”). We further agree with our sister circuit that in these cases “the
immigration judge is in a good position to draw out those facts that are relevant to the final
determination.” Id.Thus, with regard to particular social groups, we conclude that immigration judges
must, at a minimum, adequately explain in plain language: what a particular social group
is; the three elements of cognizability; what types of evidence may be potentially relevant
to the applicant’s claim; and how the applicant may prove his or her eligibility for relief.
Additionally, we agree with our sister circuits that immigration judges have a duty to
explore for, probe into, and elicit all facts relevant to the applicant’s claim and potential
social groups. See Agyeman, 296 F.3d at 877 (stressing that in pro se cases “it is critical
that the [immigration judge] ‘scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts’” (quoting Jacinto, 208 F.3d at 733)); Al Khouri, 362 F.3d
32at 464–65 (adopting the same standard); Mendoza-Garcia, 918 F.3d at 504 (same) 23; see
also Matter of S-M-J-, 21 I. & N. Dec. at 729 (emphasizing immigration adjudicators’
shared “duty to ascertain and evaluate all the relevant facts” (quoting United Nations
Handbook, para. 196)).
Immigration judges must also seek clarification as needed; help the applicant
identify and delineate any potentially cognizable particular social group(s) supported by
his or her factual circumstances; and ultimately consider those groups as well as any groups
proposed by the applicant in determining eligibility for asylum or withholding of removal.
In imposing such a duty, we are hardly breaking new ground, given that immigration
judges, the Board of Immigration Appeals, and federal courts alike have long assisted pro
se asylum seekers with the process of identifying and delineating particular social groups. 24
23
Notably, our sister circuits imported this “all relevant facts” language from Social
Security disability cases. See, e.g., Jacinto, 208 F.3d at 733; Mendoza-Garcia, 918 F.3d at
504. We too have employed the same standard in the Social Security context for more than
four decades. See, e.g., Marsh, 632 F.2d at 299 (“[W]hen a claimant appears without the
assistance of counsel[,] . . . the [administrative law judge] should ‘scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts.’” (citation
omitted)).
24
The amici provide a helpful illustration of immigration judges’ duty to develop the record
as to a pro se asylum seeker’s potential particular social groups. The analogy goes as
follows:
Consider the respondent’s facts (presented as testimony and in documents)
like the tiles in Scrabble, but the respondent does not speak English and
cannot spell. The respondent can only use the letters on the tiles, but very
well may not know what English words they can spell. Without help, the
respondent could never win – and can’t even meaningfully participate. The
role of the [immigration judge], in this analogy, is to help the respondent
determine whether those tiles spell words. The [immigration judge] cannot
give the respondent new tiles (in immigration court, supply new facts), but
33
We also find that this requirement is analogous to and consistent with the duty of
federal courts to liberally construe pro se complaints, “however inartfully pleaded.”
Erickson, 551 U.S. at 94 (quoting Estelle, 429 U.S. at 106). This Court has held that district
courts must carefully consider any potentially viable legal claims that a pro se plaintiff fails
to raise, as long as the factual allegations in the complaint could support those claims. See,
e.g., Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 540 (4th Cir. 2017); Williamson v.
Stirling, 912 F.3d 154, 173 (4th Cir. 2018). For example, in Booker v. South Carolina
Department of Corrections, a pro se inmate alleged that prison officials violated his First
Amendment rights by retaliating against him for filing grievances. 855 F.3d at 536–37.
Because his complaint specifically cited the Free Speech Clause, the district court limited
its analysis to the plaintiff’s free speech right to submit internal grievances. Id. at 540. We
held that the district court had erred in failing to consider whether the plaintiff’s allegations
could also support a claim under the First Amendment’s Petition Clause. Id. Analogously,
in a case involving a pro se asylum seeker, the immigration judge has a duty to help
articulate and consider any potentially viable particular social groups supported by the
record—even if the applicant does not explicitly propose those groups.
can ask to see the tiles, and then explain how to form a word from them. DHS
can argue with the [immigration judge] about whether the tiles form a word,
or whether the word is misspelled, but the [immigration judge] will make the
ultimate judgment. The [Board of Immigration Appeals] will review whether
the tiles have properly formed a word.
Amicus Br. at 16–17.
34
E.
Finally, before turning to the specific allegations of error in this case, we must
address one additional question: what implications does the aforesaid duty of immigration
judges in pro se asylum and withholding-of-removal cases have for the Board of
Immigration Appeals’ 2018 decision in Matter of W-Y-C- & H-O-B-? There, the Board of
Immigration Appeals held that an applicant for asylum or withholding of removal has the
burden to “‘clearly indicate’ on the record before the Immigration Judge . . . ‘the exact
delineation of any particular social group(s) to which she claims to belong.’” 27 I. & N.
Dec. at 191 (quoting Matter of A-T-, 25 I. & N. Dec. 4, 10 (BIA 2009)). Under W-Y-C-,
any particular social group not explicitly articulated before the immigration judge would
generally be forfeited on appeal to the Board of Immigration Appeals. 25 See id. at 190–92.
25
Importantly, since its adoption, W-Y-C-’s exact-delineation requirement has been strictly
applied by both the Board of Immigration Appeals as well as circuit courts. See, e.g., Del
Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 214 (4th Cir. 2020) (“[T]he applicant
bears the burden of raising all particular social groups and specifying ‘the exact delineation
of any particular social group(s) to which she claims to belong’ on the record before the
immigration judge in the first instance.” (quoting Matter of W-Y-C-, 27 I. & N. Dec. at
191)). Unless the applicant clearly and explicitly states the exact parameters of her
particular social group on the record before the immigration judge, the Board of
Immigration Appeals will deem that group waived in most cases. See, e.g., Diaz-Reynoso
v. Barr, 968 F.3d 1070, 1102 (9th Cir. 2020) (Bress, J., concurring in the judgment in part
and dissenting in part) (“[The Board of Immigration Appeals’] precedent is clear that the
agency must evaluate the proposed social group exactly as the petitioner has defined it. .
. . On appeal, the [Board] may only consider the specific proposed social group that the
petitioner presented to the [immigration judge].” (emphasis added)).
Thus, courts and the Board of Immigration Appeals alike have signaled that under Matter
of W-Y-C-, it is not enough for the applicant to provide testimony sufficiently indicating
what characteristics would make her a target or what particular social group she likely
belongs to. See, e.g., Mendoza-Moran v. Barr, 819 F. App’x 188, 190 (5th Cir. 2020)
35
In this case, relying on W-Y-C-, the Board of Immigration Appeals “decline[d] to
consider” the particular social groups of former MS-13 members in El Salvador who left
the gang without permission, or family members of José Ramiro, finding that Petitioner
“did not advance” these groups before the immigration judge. A.R. 3 & n.2. Petitioner
argues that W-Y-C-’s “exact delineation” requirement and forfeiture rule should not apply
to pro se asylum seekers, and thus that the Board of Immigration Appeals’ application
thereof in his case was error. We agree. 26
All the aforementioned reasons for obligating immigration judges to assist pro se
asylum seekers with articulating a particular social group strongly militate against
enforcing the exact-delineation requirement and the forfeiture rule against such
noncitizens. Requiring pro se asylum seekers to “clearly indicate the exact delineation” of
their potential particular social groups would be completely inconsistent with immigration
judges’ robust duty to help such applicants articulate a legally cognizable group. Indeed,
(rejecting the petitioner’s argument that her testimony was sufficient to raise her proposed
social group before the immigration judge and noting that such testimony “does not suffice
under Matter of W-Y-C-”); Lopez-Monroy v. U.S. Dep’t of Homeland Sec., 751 F. App’x
303, 307 (3d Cir. 2018) (rejecting a similar argument). Indeed, in this very case, the Board
of Immigration Appeals held that Petitioner “did not meet his burden to articulate before
the Immigration Judge” the particular social groups of former MS-13 members in El
Salvador who left the gang without permission, or family members of José Ramiro—even
though his Form I-589 and testimony clearly indicated that he feared being persecuted on
those grounds. A.R. 3 & n.2.
26
While W-Y-C- involved an asylum seeker with counsel, and while the Board of
Immigration Appeals has not expressly decided in a precedential opinion whether W-Y-C-
would apply to uncounseled applicants, the Board has nevertheless strictly enforced the
exact-delineation requirement and forfeiture rule in at least some pro se cases—as
demonstrated by the instant case. See A.R. 3. Moreover, the Government too argues that
W-Y-C- should apply equally in the pro se context.
36
we find it necessary to impose such a duty precisely because many, if not most, pro se
asylum seekers lack the ability to identify or delineate a viable social group. As Judge
Dennis on the Fifth Circuit has noted, “[e]ven experienced immigration attorneys have
difficulty articulating the contours of a [cognizable social group]. And if this ‘exact
delineation’ requirement is further imposed on pro se asylum seekers, they will not stand
a chance. Someone who faces persecution on account of a protected ground is no less
deserving of asylum’s protections because of her inability to exactly delineate a convoluted
legal concept.” Cantarero-Lagos, 924 F.3d at 154 (Dennis, J., concurring). In addition, the
exact-delineation requirement runs counter to the United States’ obligation under the
Refugee Convention (as incorporated into domestic law through the Refugee Act of 1980
and construed by the Board of Immigration Appeals in Matter of S-M-J-) to ensure that
refugee protection is provided to those whose circumstances warrant it.
The Government asserts that we must accord deference under Auer v. Robbins, 519
U.S. 452 (1997), to Matter of W-Y-C- because the latter reflected the Board of Immigration
Appeals’ interpretation of its standard-of-review regulation, 8 C.F.R. § 1003.1(d)(3).
However, as noted above—and as the Government concedes—whether W-Y-C- is even
applicable to pro se cases like this one is debatable, since the Board of Immigration Appeals
has not decided that question in a precedential decision. But even if W-Y-C- is read to apply
here, Auer deference is inappropriate where an agency’s interpretation “violate[s] the
Constitution or a federal statute.” Stinson v. Unites States, 508 U.S. 36, 45 (1993). Because
enforcing W-Y-C-’s exact-delineation requirement and forfeiture rule against pro se asylum
37
seekers would be inconsistent with the dictates of 8 U.S.C. § 1229a(b)(1), we cannot accord
any deference here. 27
Therefore, we hold that W-Y-C-’s exact-delineation requirement is inapplicable in
pro se cases. The sheer complexity of the law relating to particular social groups, the
substantial disadvantages faced by pro se noncitizens, and the enormity of the interests at
stake strongly persuade us that enforcing such a requirement against uncounseled asylum
seekers would be both unreasonable and fundamentally unfair.
Relatedly, we hold W-Y-C-’s forfeiture rule to be inapplicable to potential particular
social groups that went unidentified or unarticulated in immigration court as a result of the
immigration judge’s failure to fully develop the record as to a pro se asylum seeker’s
claims. 28 If the immigration judge neglects to explore for, probe into, and consider a
potentially viable social group fairly supported by the applicant’s factual allegations, it
would hardly make sense to penalize the applicant—who, as a result of the immigration
27
Again, as explained above, a denial of a statutory protection provided in the Immigration
and Nationality Act constitutes a due process violation. See Rusu, 296 F.3d at 321 n.7.
Thus, for the agency to apply W-Y-C- in the pro se context would also be inconsistent with
the Due Process Clause of the Fifth Amendment.
28
We need not decide here whether the forfeiture rule may apply where an immigration
judge properly discharges his or her duty, but the applicant raises a new particular social
group on appeal. As discussed below, the immigration judge in this case clearly did not
satisfy her duty. Additionally, we pass no judgment on the general validity of W-Y-C-’s
exact-delineation requirement and forfeiture rule—i.e., in non-pro se cases—as we have
no need to address that issue here. That said, we do have concerns about the fairness of
strictly enforcing W-Y-C- where a particular social group plainly supported by the record
goes unarticulated before the immigration judge as a result of counsel’s incompetence.
38
judge’s error, is denied a vital statutory protection and deprived of a full and fair hearing—
for the immigration judge’s failure to discharge his or her duty.
39
Accordingly, where the Board of Immigration Appeals finds that an immigration
judge failed to probe into and consider a potential social group supported by the applicant’s
circumstances, 29 it usually must remedy the error by remanding the case for further fact-
finding 30 and consideration of that group. 31 See Matter of E-O-R-A-, A XXX XXX 056
(BIA Nov. 8, 2018) (remanding for consideration of a potential particular social group
supported by the pro se applicant’s testimony but unaddressed by the immigration judge).
29
Such a group could be raised by the applicant on appeal—presumably with the assistance
of counsel or a pro bono organization—or discovered by the Board of Immigration Appeals
based on its review of the record.
30
We note that the most recent amendments to 8 C.F.R. § 1003.1(d), which became
effective on January 15, 2021, have imposed new limits on the Board of Immigration
Appeals’ authority to remand a case to the immigration judge for additional fact-finding.
See 8 C.F.R. § 1003.1(d)(3)(iv), (d)(7)(ii). For example, under the regulation as revised,
the Board of Immigration Appeals may not remand a case for additional fact-finding unless
the “party seeking remand preserved the issue by presenting it” before the immigration
judge and, if that party had the burden of proof, “attempted to adduce the additional facts”
before the immigration judge. 8 C.F.R. § 1003.1(d)(3)(iv)(D). However, we are persuaded
that these limitations do not apply here.
First, the very agency responsible for promulgating these amendments (the Department of
Justice) suggested as much. In the preamble to the final rule setting forth the amendments,
the Justice Department explicitly recognized that “immigration judges have an obligation
to develop the record” under 8 U.S.C. § 1229a(b)(1), especially in cases involving pro se
noncitizens. Appellate Procedures and Decisional Finality in Immigration Proceedings;
Administrative Closure, 85 Fed. Reg. 81588, 81597, 81607, 2020 WL 7361179 (Dec. 16,
2020). And as relevant here, the preamble further states that “the [final] rule does not
preclude the Board [of Immigration Appeals]” from “order[ing] additional factfinding on
remand if it determines an immigration judge erred as a matter of law by not sufficiently
developing the factual record for [a noncitizen] proceeding without representation.” Id. at
81590, 81610. Indeed, that conclusion flows logically from the Department’s accurate
observation that in cases involving pro se respondents, immigration judges’ duty to fully
develop the record is what “ensure[s] that such [noncitizens] attempt to adduce relevant
facts to meet their burdens of proof and reduce[s] the likelihood that [they] inadvertently
waive an issue.” Id. at 81606. Thus, it would hardly make sense if the Board of Immigration
40
The Government’s arguments against imposing the aforesaid duty on immigration
judges and holding W-Y-C- to be inapplicable in pro se cases are without merit. First, the
Government emphasizes that it is the applicant, not the immigration judge, who bears the
burden of proof to show his or her eligibility for relief, and argues that immigration judges
should not take on the role of an advocate. But Petitioner does not dispute that the burden
is on applicants like him to prove their eligibility. Nor does he ever suggest that
immigration judges should act as advocates.
Appeals, despite finding that the immigration judge failed to fully develop the record, were
barred from remanding a case due to restrictions triggered by that very legal error.
But more fundamentally, the regulatory limitations on the Board of Immigration Appeals’
authority to remand may not be interpreted and enforced in a manner inconsistent with our
statutory holding today. See Stinson, 508 U.S. at 45 (stating that an agency may not apply
its own regulations in a way that violates a federal statute or the Constitution); see also
Rusu, 296 F.3d at 321 n.7 (denial of statutory protection violates due process). Moreover,
if the new restrictions were strictly enforced in a case like this, it would create an absurd
situation where the Board of Immigration Appeals finds a prejudicial violation of a pro se
respondent’s statutory rights, but is unable to remedy that critical error by remanding the
case—or, for that matter, by engaging in fact-finding itself. See 8 C.F.R.
§ 1003.1(d)(3)(iv)(A) (stating that generally the Board of Immigration Appeals may not
“engage in factfinding”). “[W]here a specific duty is assigned by law, and individual rights
depend upon the performance of that duty, it seems equally clear that the individual who
considers himself injured, has a right to resort to the laws . . . for a remedy.” Marbury v.
Madison, 5 U.S. 137, 166 (1803). In light of these cardinal principles, the Board of
Immigration Appeals is not only permitted, but also obligated, to remand the case upon
finding that the immigration judge failed to adequately develop the record as to a pro se
asylum seeker’s potential particular social group(s). Such a remand is necessary so that the
uncounseled applicant’s eligibility for relief can be duly reconsidered in light of those
groups, thus protecting the applicant’s right to a full and fair hearing.
31
Of course, the Board of Immigration Appeals may choose not to remand if it determines
that consideration of the group is plainly unnecessary for deciding the applicant’s
eligibility.
41
Rather, Petitioner argues that pro se asylum seekers satisfy their burden when they
make a sufficient factual showing of their eligibility for relief, and that immigration judges,
as immigration law experts, have a duty to flesh out those facts and to help applicants
articulate a legally cognizable particular social group based on their factual
circumstances. 32 Again, this is hardly different from federal courts’ duty to liberally
construe pro se complaints and to help identify potentially viable legal claims that the
plaintiff may not have raised. Moreover, in Matter of S-M-J-, the Board of Immigration
Appeals found no inconsistency between an asylum seeker’s burden of proof and the
obligation of immigration judges and the Board of Immigration Appeals to “ensur[e] that
refugee protection is provided where such protection is warranted by the circumstances of
[the] applicant’s claim.” 21 I. & N. Dec. at 723. Unsurprisingly, therefore, the Ninth Circuit
explicitly rejected a similar argument by the Government in Agyeman. See 296 F.3d at 884
(emphasizing that obligating immigration judges to fully develop the record “will not
transform [them] into attorneys for [noncitizens]”); see also Amicus Br. at 4 (“To be clear:
we are not asking that [immigration judges] or Board [of Immigration Appeals] members
become advocates. Rather, our experience shows that an [immigration judge] can remain
a neutral arbiter while still helping the parties develop the record and determine whether
existing case law supports a claim for relief.”); Al Khouri, 362 F.3d at 465 (“[T]he
32
Again, we find the amici’s “Scrabble” analogy helpful for understanding this division of
roles. See Amicus Br. at 16–17.
42
[immigration judge] did not fulfill his duty to fully develop the record. We do not suggest
that the [immigration judge] had a duty to act as [the petitioner]’s advocate or lawyer.”).
Equally unavailing is the Government’s contention that it would be improper for
immigration judges to “take[] over the responsibility for framing the particular social
group” and thereby “usurp the applicant’s role as [the] master of his or her [claim].” Resp.
Br. at 48–49. Of course, in performing their duty to fully develop the record, immigration
judges may not disregard any particular social groups actually proposed by an applicant.
Rather, their duty is to elicit all facts relevant to those groups and also to explore for, probe
into, help articulate, and consider other potentially viable groups supported by the record.
Next, the Government cavalierly suggests that delineating a legally cognizable
particular social group should be “nothing difficult or complex for an unrepresented person
fleeing persecution” unless the applicant “is trying to construct an artificial group to create
asylum or withholding eligibility.” Id. at 50. This view of the matter is utterly divorced
from reality. As discussed above, delineating a cognizable social group is an unduly
challenging task for many, if not most, pro se asylum seekers. Just as troubling—and
preposterous—is the Government’s claim that “all [noncitizens] would benefit [from]
proceeding pro se” if immigration judges are obligated to help unrepresented individuals
articulate their particular social groups. Id. at 52. Such a contention improperly disregards
the substantial disadvantages faced by pro se asylum seekers. As we have recounted,
research shows that pro se respondents are several times less likely than those with counsel
43
to obtain relief in removal proceedings. Though we hope our holding today will help ease
those disadvantages, it surely will not eliminate them. 33
Finally, the Government suggests that requiring immigration judges to assist pro se
applicants with delineating a particular social group would produce “grave” costs to
“administrative and judicial efficiency.” Resp. Br. at 52. That is, by reducing the number
of slapdash removal proceedings for uncounseled noncitizens, our holding may add to the
already-substantial caseload of immigration judges. But that is a consideration for the
elected branches, not for us. We cannot withhold a crucial procedural protection mandated
by law merely because enforcing it would be less convenient or less efficient. And at any
rate, the robust duty imposed on immigration judges may actually further the goal of
efficiency, as it will minimize any potential confusion as to an applicant’s particular social
groups, reduce the number of claims raised for the first time on appeal, and facilitate
meaningful review of immigration judges’ decisions by the Board of Immigration
Appeals—thereby necessitating fewer remands and subsequent appeals.
In conclusion, we hold that immigration judges’ duty to fully develop the record
entails an obligation to help pro se asylum seekers identify and delineate potentially viable
particular social groups supported by their factual circumstances. Consistent with this
holding, we further conclude that Matter of W-Y-C-’s exact-delineation requirement is
33
Moreover, if the Government’s argument were to be credited, one would think the
demand for representation among Social Security disability claimants—who similarly
receive the “benefit” of administrative law judges’ duty to develop the record becoming
particularly important in pro se cases—would be nonexistent. That is, it goes without
saying, not the reality.
44
inapplicable to pro se asylum seekers, and that the related forfeiture rule may not be
enforced as to potential social groups that went unarticulated as a result of an immigration
judge’s failure to fulfill the aforesaid duty. With these principles in mind, we now turn to
whether the immigration judge and the Board of Immigration Appeals reversibly erred in
denying Petitioner’s application for withholding of removal.
F.
Petitioner argues that the immigration judge in his case erred in failing to discharge
her duty to fully develop the record as to his particular social groups. We agree.
During his removal proceedings, Petitioner unambiguously articulated the factual
bases for the relief he requested. On his Form I-589, he checked off the appropriate box to
indicate that he was seeking asylum and withholding of removal based on membership in
a particular social group. On the form, Petitioner explained that he feared return to El
Salvador because he believed MS-13 would kill him for leaving the gang. He further stated
that he had previously received death threats from the gang; that MS-13 would find and
kill anyone who deserted the gang; and that MS-13 members had murdered his cousin for
trying to leave them. Petitioner concluded: “That’s why I came to [the] USA. I don’t want
to be part of gangster but I’m afraid to [go] back [because of] them.” A.R. 347.
During his testimony before the immigration judge, Petitioner again expressed his
fear that MS-13 would kill him upon his return to El Salvador because he had left the gang
without permission. See supra, Part I.B. Moreover, he connected his fear to the murder of
his cousin, José Ramiro. When the immigration judge asked Petitioner why he believed
MS-13 would kill him, he explained that the gang had already threatened him along “with
45
[his] cousin,” and that MS-13 later murdered Ramiro for leaving the gang. A.R. 175–76
(emphasis added).
All of this clearly indicated the factual bases undergirding Petitioner’s potential
social groups for his withholding claim: his status as a former MS-13 member who left the
gang without permission 34 and his familial relationship to his cousin who was threatened
alongside Petitioner and later killed by the gang. Thus, we find that Petitioner alleged
sufficient facts relevant to his eligibility for relief during his removal proceedings to put
the immigration judge on notice as to his potential social groups. Given that Petitioner was
a detained, pro se applicant with only a high school education, limited English skills, and
no legal training, we simply do not see what more we could ask of him.
On the other hand, the immigration judge fell far short of her legal duty to fully
develop the record. At no point during Petitioner’s hearing did the immigration judge probe
into or attempt to clarify his particular social groups. Nor did the immigration judge make
34
The Government inexplicably dedicates a substantial portion of its brief to arguing that
Petitioner’s testimony suggested his particular social group consisted of current gang
members. In making that argument, the Government improperly mischaracterizes
Petitioner’s testimony. For instance, the Government’s brief notes that during his
individual hearing, Petitioner responded “No” when asked “Now in terms of when you
were still in El Salvador, you never actually left the gang?” Resp. Br. at 37; A.R. 183. But
the transcript of the hearing actually shows that the full question posed to Petitioner was
“Now in terms of when you were still in El Salvador, you never actually left the gang? Is
that correct?” A.R. 183 (emphasis added). The Government’s omission of “Is that
correct?” plainly mischaracterizes the meaning of Petitioner’s response of “No.” In fact,
despite the Department of Homeland Security attorney’s persistent efforts during the
hearing to get Petitioner to admit that he was still part of the gang, Petitioner consistently
denied his MS-13 membership. See, e.g., A.R. 183–84 (showing Petitioner responding,
“No. I left.”; and “No. I’m nothing [not a member].”).
46
any effort to help Petitioner understand what a particular social group is or what elements
must be proven. In fact, the immigration judge never once mentioned the phrase “particular
social group” during the hearing, let alone asked Petitioner to articulate his social group.
Further, we conclude that the immigration judge’s questioning was deficient. She
neglected to ask obviously relevant and important questions, such as:
• What acts would be considered “leaving the gang”?
• Could a MS-13 member ever be permitted to leave the gang?
• What attributes or factors would distinguish a current gang member from a
former one? How would a former member be identified?
• If a MS-13 member suddenly left the country and cut off communications with
the gang, would he be perceived as a deserter?
• Other than your cousin, do you know any other gang members who tried to leave
or left the gang? Anyone who fled to the U.S.? What happened to them?
• What exactly did your cousin tell the gang before he was murdered?
• Does the gang know that you and your cousin are related?
• Has MS-13 threatened anyone in your family since you came to the U.S.?
Therefore, we simply cannot conclude that the immigration judge “scrupulously and
conscientiously probe[d] into, inquire[d] of, and explore[d] for all the relevant facts.’” 35
Agyeman, 296 F.3d at 877 (quoting Jacinto, 208 F.3d at 733).
35
It is possible that the immigration judge deemed it unnecessary to probe and inquire
further because she did not believe Petitioner’s testimony that he had left MS-13 and thus
47
Furthermore, the immigration judge failed to include any discussion of particular
social groups in her written decision, other than a passing remark in a footnote stating that
“[n]o cognizable social group . . . cover[ed]” being “threatened while still a gang member
for indicating [a desire] to leave.” A.R. 136. In short, the immigration judge denied
Petitioner’s application for relief and ordered him removed without ever exploring or
considering the potential particular social groups of former MS-13 members in El Salvador
who left the gang without permission, or family members of José Ramiro—even though
Petitioner’s testimony provided more than sufficient notice that his claim could be based
on either of these groups.
Thus, we conclude that the immigration judge plainly failed to fulfill her duty to
fully develop the record as to Petitioner’s particular social groups. This failure violated
Petitioner’s statutory right under 8 U.S.C. § 1229a(b)(1), and it would constitute a
reversible error if it prejudiced him. See Rusu, 296 F.3d at 320.
would be persecuted as a former gang member. But that would be no less erroneous. Except
where a noncitizen’s testimony lacks credibility beyond any doubt, an immigration judge’s
skepticism or incredulity does not relieve him or her of the duty to fully develop the record.
Such a view puts the cart before the horse because under the Immigration and Nationality
Act and Fourth Circuit precedent, an immigration judge’s credibility determination “must
take into account all the evidence submitted,” and must be based on “the totality of the
circumstances” and supported “by the record as a whole.” Ilunga v. Holder, 777 F.3d 199,
206–07 (4th Cir. 2015) (emphases added) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)). Thus, it
would be doubly erroneous for an immigration judge to disregard his or her duty to develop
the record based on a prejudged conclusion as to the respondent’s credibility: first, the
immigration judge would err by making a credibility determination before the record is
even closed; and second, by neglecting the duty to develop the record based on such an
improper credibility determination.
48
Such a violation causes prejudice if it is “likely to impact the results of the
proceedings.” Rusu, 296 F.3d at 320–21 (quoting Jacinto, 208 F.3d at 728). By its very
nature, however, an immigration judge’s failure to fully develop the record regarding an
issue material to the respondent’s removability or eligibility for relief is not an error
amenable to the ordinary prejudice inquiry. Such a failure often makes it difficult for a
reviewing court to determine whether any prejudice resulted from that very error—
precisely because the record has not been adequately developed as to the material issue.
In those situations, it would hardly be fair to rule against the noncitizen for failing to make
a sufficient showing of prejudice. Accordingly, we hold that an immigration judge’s failure
to satisfy his or her duty to fully develop the record is presumptively prejudicial, unless the
error is plainly irrelevant to, or otherwise does not hinder in any way, the reviewing court’s
ability to assess whether prejudice occurred.
Again, this approach is in line with that of at least some of our sister circuits. 36 In
Agyeman, the Ninth Circuit emphasized that “prejudice may be shown where the
[immigration judge’s] inadequate explanation of the hearing procedures and failure to elicit
pertinent facts prevented the [noncitizen] from presenting evidence relevant to their claim.”
296 F.3d at 884–85 (citing Jacinto, 208 F.3d at 734–35). The court further explained that
prejudice may be “infer[red] . . . in the absence of any specific allegation as to what
evidence . . . would have [been] presented” had the immigration judge adequately
36
Not all circuits have adopted this approach. For instance, in Mendoza-Garcia, the Sixth
Circuit held that the petitioner’s “challenge necessarily fail[ed]” for lack of a showing that
his “claims could have supported a different outcome.” 918 F.3d at 509.
49
developed the record, and that the petitioner should “not [be] require[d] . . . to ‘produce a
record that does not exist.’” Id. at 885 (emphasis added) (quoting Perez-Lastor v. INS, 208
F.3d 773, 782 (9th Cir. 2000)). Based on these principles, the Ninth Circuit concluded that
“[h]ad the [immigration judge] provided an adequate explanation or sufficiently developed
the record, [the petitioner] may have provided sufficient evidence to support his application
for adjustment of status.” Id.The Eighth Circuit took a similar approach in Al Khouri. There, the court explained
that it could not determine whether the asylum-seeking petitioner would have been granted
relief had the immigration judge sufficiently developed the record, because “the
fundamental error in [the petitioner’s] hearing prevented him from fully developing the
merits of his case.” Al Khouri, 362 F.3d at 466. Relying on Agyeman and emphasizing that
the petitioner could not “produce a record that d[id] not exist,” the Eighth Circuit held that
“the [immigration judge’s] failure to inquire into all the pertinent details of [the
petitioner’s] application” may well have prejudiced him. Id. at 467.
In presuming prejudice from the immigration judge’s failure to fully develop the
record, we draw additional support from Doggett v. United States, 505 U.S. 647 (1992). In
Doggett, the Supreme Court held that unreasonable delay between a criminal defendant’s
indictment and his trial is “presumptively prejudicial” and may violate his Sixth
Amendment right to a speedy trial, depending on other factors. 505 U.S. at 652–56. While
recognizing that Doggett was a criminal case involving a different type of claim, we find
it analogous to the instant case in a critical aspect. In Doggett, the Supreme Court found it
necessary to presume prejudice because excessive delay “compromises the reliability of a
50
trial in ways that neither party can prove or, for that matter, identify.” Id. at 655. Likewise,
we believe an immigration judge’s failure to fully develop the record should be deemed
presumptively prejudicial since that very error is likely to hamper the ability of the
reviewing court to assess whether and how the applicant was prejudiced.
Applying the presumed-prejudice rule here, we are compelled to vacate the denial
of Petitioner’s application for withholding of removal. As discussed above, the
immigration judge hardly developed the record as to whether Petitioner’s life or freedom
would be threatened in El Salvador on account of his membership in particular social
groups consisting of former MS-13 members in El Salvador who left the gang without
permission, family members of José Ramiro, or both. Nor did the immigration judge make
any factual inquiries necessary for determining whether either of those potential groups
would satisfy the immutability, particularity, and social-distinction requirements and thus
be legally cognizable. See Matter of M-E-V-G-, 26 I. & N. Dec. at 237. Thus, we find that
the immigration judge’s failure to develop the record has limited our ability to
meaningfully review and determine as a matter of law whether that error was “likely to
impact the results” as to Petitioner’s application for withholding of removal. Rusu, 296
F.3d at 320 (quoting Jacinto, 208 F.3d at 728). Presuming prejudice, we conclude that the
immigration judge’s error requires this Court to vacate the denial of Petitioner’s
withholding-of-removal application.
Additionally, to the extent that the immigration judge suggested Petitioner’s
withholding claim was based on a potential particular social group consisting of current
gang members—when she wrote that being “threatened while still a gang member for
51
indicating he wanted to leave” would not constitute a protected ground—we hold that this,
too, was error. This Court has held that immigration judges may not distort important
aspects of an applicant’s claim. See Tassi, 660 F.3d at 719; see also Alvarez Lagos v. Barr,
927 F.3d 236, 253 (4th Cir. 2019) (holding that mischaracterizing an applicant’s proposed
social group is a “critical legal error[]”). Again, Petitioner’s Form I-589 and in-court
testimony unambiguously indicated that his asylum and withholding claims were based
primarily on his status as a former MS-13 member who left the gang without permission.
Petitioner never alleged at any point that he would face persecution in El Salvador because
he was a current gang member who had been threatened for indicating a desire to leave the
gang. Because the immigration judge’s mischaracterization of Petitioner’s claim was an
“error[] of law [that] necessarily constitute[d] an abuse of discretion,” Tassi, 660 F.3d at
725, it provides an additional ground for vacating her decision. 37
“For its part, the [Board of Immigration Appeals] erred in failing to recognize the
[immigration judge’s] [legal] errors,” which necessarily renders the Board’s decision
“manifestly contrary to law and an abuse of discretion.” Id. Here, both the immigration
judge’s failure to fully develop the record and her mischaracterization of Petitioner’s claim
went unrecognized by the Board of Immigration Appeals. If anything, the Board of
Immigration Appeals only compounded the latter error. In affirming the denial of
37
Indeed, the Government acknowledges that “the applicant is the master of his or her
claim” and that immigration judges may not “substitute their view of the relevant
[particular social] group for the group the applicant has chosen.” Resp. Br. at 47. By
mischaracterizing Petitioner’s claim, the immigration judge impermissibly infringed upon
his “right to control his . . . claim.” Id.52
Petitioner’s application for withholding of removal, the Board of Immigration Appeals held
that Petitioner was not eligible for relief on the basis of his membership in a particular
social group consisting of “current gang members who are threatened for wanting to leave
the gang.” A.R. 3. Again, Petitioner never testified that he feared persecution on such a
basis, and distorting important aspects of an applicant’s claim is a reversible legal error.
See Tassi, 660 F.3d at 725; Alvarez Lagos, 927 F.3d at 253.
Moreover, the Board of Immigration Appeals further erred in relying on Matter of
W-Y-C- to preclude any consideration of whether Petitioner’s life or freedom would be
threatened on account of his membership in either former MS-13 members in El Salvador
who left the gang without permission or family members of José Ramiro. See A.R. 3 (Board
of Immigration Appeals holding that “it is unnecessary to determine whether” these groups
constitute “cognizable particular social group[s] because [Petitioner] did not advance
[them] before the Immigration Judge.”). As we held above, W-Y-C-’s exact-delineation
requirement is inapplicable to pro se asylum seekers, and the forfeiture rule may not be
enforced in pro se cases where a potential particular social group supported by the
applicant’s factual circumstances goes unarticulated in immigration court as a result of the
immigration judge’s failure to fully develop the record. And for the same reason, the Board
of Immigration Appeals also erred in holding that “to the extent that [Petitioner] claim[ed]
. . . due process violations, he [could not] establish” prejudice since he “did not articulate
a valid particular social group . . . before the Immigration Judge.” A.R. 4.
Because we conclude that both the immigration judge and the Board of Immigration
Appeals reversibly erred below, we grant Arevalo Quintero’s petition as to his withholding-
53
of-removal claim. Accordingly, we vacate his final order of removal and remand for further
fact-finding and reconsideration of his withholding application in light of this decision. 38
IV.
Petitioner also argues that the immigration judge’s denial of his Convention Against
Torture claim and the Board of Immigration Appeals’ affirmance thereof were based on
legal errors. Specifically, he contends that (1) the Board of Immigration Appeals erred in
failing to consider and aggregate the risk of torture from different sources; and (2) neither
the immigration judge nor the Board of Immigration Appeals duly considered all of the
record evidence relevant to whether the Salvadoran government would consent to or
acquiescence in torture. Our decision in Rodriguez-Arias v. Whitaker, 915 F.3d 968 (4th
Cir. 2019), compels us to agree with Petitioner on both points.
38
The Government argues that a remand would be futile because the Board of Immigration
Appeals’ earlier decision in this case already considered the particular social group
consisting of former MS-13 members in El Salvador who left the gang without permission
and held that such a group was not cognizable because it lacked particularity. However,
the Board of Immigration Appeals’ subsequent decision—the one we review here—
effectively vacated that portion of its earlier decision by substantively altering the rationale
for denying Petitioner’s withholding-of-removal claim. In fact, the Board of Immigration
Appeals explicitly withdrew from its prior holding by stating: “[U]nlike our prior decision,
we now conclude that it is unnecessary to determine whether [former MS-13 members in
El Salvador who left the gang without permission] . . . constitutes a cognizable particular
social group [in light of Matter of W-Y-C-].” A.R. 3 (emphases added). Therefore, the
Board of Immigration Appeals’ earlier cognizability determination lacks legal force. See
Thomas v. Att’y Gen. of U.S., 625 F.3d 134, 140–41 (3d Cir. 2010) (noting that the Board
of Immigration Appeals’ subsequent decision “operate[s] to vacate [its] earlier decision” if
the former “substantively alter[s] the ratio decidendi in” the latter). But more importantly,
that determination would be legally erroneous at any rate, in light of our recent decision
that “the proposed [social group] of ‘former Salvadoran MS-13 members’” satisfied the
particularity requirement. Amaya, 986 F.3d at 438.
54
To qualify for Convention Against Torture protection, a noncitizen must show that
it is more likely than not that he or she would be tortured in the country of removal. 8
C.F.R. § 1208.16(c)(2). Torture is defined as (1) “any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person” (2) “by, or at the
instigation of, or with the consent or acquiescence of, a public official . . . or other person
acting in an official capacity.” Id. § 1208.18(a)(1). “Public officials acquiesce to torture
when, ‘prior to the activity constituting torture, [they] have awareness of such activity and
thereafter breach [their] legal responsibility to intervene to prevent such activity.’”
Rodriguez-Arias, 915 F.3d at 971 (quoting 8 C.F.R. § 1208.18(a)(7)). Importantly,
acquiescence does not require actual knowledge of torture. Id.A.
As to Petitioner’s first argument, we agree that the Board of Immigration Appeals
impermissibly failed to aggregate his risk of torture from all the different sources alleged,
thereby flouting the rule we set forth in Rodriguez-Arias. Notably, the Board of
Immigration Appeals’ earlier decision in this case examined only Petitioner’s risk of being
tortured at the hands of MS-13. But shortly after that decision, we decided Rodriguez-
Arias. In that case, we held that when a Convention Against Torture applicant faces a risk
of torture from more than one source, “the risk . . . from all sources should be combined
when determining whether [the applicant] is more likely than not to be tortured.” Id. at 973.
Accordingly, on remand, Petitioner argued to the Board of Immigration Appeals that he
faced a risk of torture from MS-13, rival gangs, law enforcement, and vigilante death
squads, and that Rodriguez-Arias required the Board to aggregate the risk of torture from
55
all of these sources in assessing the likelihood that he would be tortured. But in its
subsequent decision, the Board of Immigration Appeals inexplicably failed to even
mention or discuss, let alone aggregate, the risk of torture from the different sources
alleged. Instead, it simply adopted the reasoning in its prior opinion—based only on the
risk of torture from MS-13—without providing any additional analysis. This was a clear
legal error necessitating remand. See Rodriguez-Arias, 915 F.3d at 973.
The Government’s arguments to the contrary are unavailing. The Government
contends that the Board of Immigration Appeals did not need to aggregate the risk of torture
in this case because Petitioner, unlike Rodriguez-Arias, never testified before the
immigration judge that he feared being tortured at the hands of the police or vigilante
groups. But regardless of what Petitioner said or did not say in his testimony, the Board of
Immigration Appeals still had a legal duty to consider and aggregate the risk of torture
from the different sources. In assessing the likelihood of torture, the Board of Immigration
Appeals must consider “all evidence relevant to the possibility of future torture.” 8 C.F.R.
§ 1208.16(c)(3) (emphasis added). Also importantly, applicants for Convention Against
Torture relief are not required to demonstrate a subjective fear of torture. Lin, 517 F.3d at
696. Under these principles, as long as Petitioner “provide[d] independent evidence
demonstrating that it is more likely than not that he would be tortured,” the lack of
testimony is not dispositive. Lin v. Holder, 611 F.3d 228, 236–37 (4th Cir. 2010).
Here, the record contains ample evidence showing that former MS-13 members in
El Salvador commonly face the risk of being tortured or killed by MS-13, rival gang
members, law enforcement, or vigilante death squads. Thus, the Board of Immigration
56
Appeals should have taken all of the different potential torturers into account in assessing
Petitioner’s Convention Against Torture claim.
B.
Additionally, we agree with Petitioner that the immigration judge and the Board of
Immigration Appeals both erred in failing to properly consider his country-conditions
evidence relating to the Salvadoran government’s consent to or acquiescence in torture.
Again, Rodriguez-Arias is squarely applicable here. In that case, we held that the
Board of Immigration Appeals and the immigration judge erred in “failing to meaningfully
engage with” extensive documentary evidence regarding the risk of torture. Rodriguez-
Arias, 915 F.3d at 974. We explained: “It is an abuse of discretion for the Board [of
Immigration Appeals] or [immigration judge] to arbitrarily ignore relevant evidence. . . .
‘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.’” Id. (quoting Baharon v. Holder, 588 F.3d
228, 233 (4th Cir. 2009)). We further noted that “the Board [of Immigration Appeals’] or
[immigration judge’s] failure to engage with an applicant’s evidence hampers [our] ability
to meaningfully review what was decided below.” Id.Based on these principles, we held that the immigration judge “did not meaningfully
address” the country-conditions evidence concerning the Salvadoran government’s
participation in and acquiescence to torture of gang members. Id. Even though the
immigration judge did acknowledge that there were “some instances of torture of gang
members and former gang members by the police” as well as evidence that “Salvadoran
57
authorities ha[d] recently failed to address many instances of vigilante violence,” we found
such cursory acknowledgements to be wholly insufficient. Id. Likewise, we concluded that
the Board of Immigration Appeals too failed to duly consider the evidence in the record
relating to the Salvadoran government’s consent to or acquiescence in torture of gang
members. Id.Here too, both the immigration judge and the Board of Immigration Appeals failed
to meaningfully engage with the extensive country-conditions evidence submitted by
Petitioner, which spanned nearly a hundred pages. Notably, the record contains substantial
evidence indicating that for many years, the Salvadoran government has not only
acquiesced in acts of torture committed by non-state actors—such as gangs and vigilante
groups—against current and former gang members, but also actively encouraged or
committed torture itself.
But neither the immigration judge nor the Board of Immigration Appeals properly
considered such evidence in denying Petitioner’s Convention Against Torture claim.
Instead, the immigration judge’s decision merely stated in a conclusory manner and
without a single citation to the record that “[c]ountry condition information indicates that
the government of El Salvador is taking steps to address the challenging problems
presented by gang violence and instances of official corruption there.” A.R. 137. Based on
this finding, the immigration judge concluded that Petitioner had failed to meet his burden
of showing that he would more likely than not suffer torture in El Salvador. The Board of
Immigration Appeals simply affirmed this portion of the immigration judge’s decision
without further analysis. “This wholesale failure to fully consider [Petitioner]’s country-
58
conditions evidence constitutes reversible error.” Rodriguez-Arias, 915 F.3d at 975.
Because “country conditions alone can play a decisive role in granting [Convention
Against Torture] relief,” id. (quoting Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir.
2001)), this error compels us to vacate and remand.
As a final note, we reject the Government’s suggestion that the denial of Petitioner’s
Convention Against Torture claim should be affirmed because he has failed to meet his
burden of showing that he would more likely than not be tortured in El Salvador. According
to the Government, the fact that Petitioner was not previously tortured “negates” his
Convention Against Torture eligibility. Resp. Br. at 54. But that is plainly incorrect.
Although evidence of past torture may be a relevant factor in Convention Against Torture
analysis, its absence is far from dispositive. “[Convention Against Torture] relief lacks a
subjective element . . . and requires a showing with respect to future, rather than past
treatment.” Lin, 517 F.3d at 696 (emphases added). Accordingly, in assessing the objective
risk of future torture, immigration judges must also consider various other factors including
current country conditions and the possibility of internal relocation. See Suarez-Valenzuela
v. Holder, 714 F.3d 241, 245 (4th Cir. 2013). Thus, even if Petitioner has not suffered past
torture, that by no means constitutes a sufficient basis for denying his Convention Against
Torture claim. Moreover, given the country-conditions evidence in the record showing the
significant risk of torture faced by former and current gang members in El Salvador, we
simply cannot conclude as a matter of law that Petitioner has failed to meet his burden.
59
For the foregoing reasons, we vacate the denial of Petitioner’s application for
Convention Against Torture relief and remand for further proceedings consistent with this
opinion and Rodriguez-Arias.
V.
In our country, few populations are as vulnerable as noncitizens facing removal
proceedings who are unable to secure the assistance of adequate counsel. Yet the
consequences they may face are severe: family separation, prolonged detention, and
deportation to a country where persecution or even death awaits.
We are acutely conscious of the harsh realities of our immigration system faced by
thousands of noncitizens each day. These individuals come to our shores in search of
sanctuary and a better life. Many are poor, young, uneducated, or (like Petitioner) all three.
Of course, we recognize that immigration policies are primarily a concern for the elected
branches. But it is our role, and our highest duty, to ensure that those policies are applied
fairly and with full regard to our laws and our Constitution.
With these grave concerns in mind, we hold today that under the Immigration and
Nationality Act and, where relevant, the United States’ obligations under the Refugee
Convention, immigration judges have a legal duty to fully develop the record, which
becomes particularly important in pro se cases. We believe this procedural protection is
essential for ensuring fundamental fairness and reasoned decisionmaking in removal
proceedings.
Based on our review of the record, we conclude that the immigration judge below
failed to fulfill her duty to fully develop the record, thereby depriving Petitioner of a vital
60
statutory protection and a full and fair hearing. In light of this and other errors made by the
immigration judge and the Board of Immigration Appeals, we grant the petition, vacate
Petitioner’s final order of removal, and remand to the Board of Immigration Appeals with
instructions to remand the case to the immigration judge for further fact-finding and
reconsideration of Petitioner’s application for withholding of removal and Convention
Against Torture relief.
PETITION FOR REVIEW GRANTED AND
REMAND AWARDED
61
DIANA GRIBBON MOTZ, concurring in the judgment:
I concur in the panel’s holdings that: (1) Immigration Judges are statutorily bound
to fully develop the record during immigration proceedings; (2) this duty is especially
important in pro se cases; and (3) this duty extends to proceedings, like the one at issue in
this case, in which noncitizens articulate a proposed social group.
62