Ghebremedhin, Ghebre v. Ashcroft, John ( 2004 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 3, 2004
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Nos. 03-1815 & 03-3836
GHEBREGZIABHER On Petitions for Review of an Order of
GHEBREMEDHIN, the Board of Immigration Appeals.
Petitioner,
No. A76-841-841
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent.
ORDER
Respondent Attorney General John Ashcroft requests that we modify our
opinion issued on October 13, 2004, arguing that our decision to remand the case with
instructions to enter an order granting asylum contravenes the Supreme Court’s
recent decision in INS v. Ventura, 537 U.S. 12 (2002) (per curiam). We construe the
request as a petition for panel rehearing, see Fed. R. App. P. 40(a), and, although do
we not discern any conflict with Ventura, agree to modify our opinion.
The issue in Ventura was whether the Ninth Circuit Court of Appeals exceeded
its authority by resolving a factual issue that an agency had not considered. The
petitioner, a citizen of Guatemala, sought asylum after being threatened with harm
unless he joined the guerrilla army. Ventura, 537 U.S. at 14. The immigration judge
(IJ) who heard his case credited his testimony but concluded that the petitioner failed
to demonstrate persecution on account of a political opinion, adding that it appeared
that the political situation in Guatemala had changed significantly for the better. Id.
at 14-15. The Board of Immigration Appeals
Appeal nos. 03-1815 & 03-3836 Page 2
(BIA) affirmed but did not address the question of whether circumstances had in fact
changed. Id. at 15. On appeal, the court rejected the IJ’s conclusion but—instead of
remanding for further fact-finding—found in the first instance that circumstances in
Guatemala had not changed significantly; consequently, the petitioner was eligible
for asylum. Id.On petition for certiorari, the Supreme Court held that the Ninth Circuit
should have remanded the factual question of whether circumstances in Guatemala
had changed significantly to the BIA. Id. at 17. The Court emphasized that “an
appellate court [may not] intrude upon the domain which Congress has exclusively
entrusted to an administrative agency” and that the Ninth Circuit “is not generally
empowered to conduct a de novo inquiry into the matter being reviewed.” Id. at 16(citation omitted). The Court went on to observe that the State Department report
used by the court of appeals to support its finding was both outdated and, “at most,
ambiguous about the matter.” Id. at 17-18. Given this uncertainty, the Court
explained, remand was necessary for the agency to evaluate the evidence and make
an initial determination. Id. at 17. Because the Ninth Circuit had created
“potentially far-reaching legal precedent about the significance of political change in
Guatemala . . . without giving the BIA the opportunity to address the matter in the
first instance in light of its own expertise,” id., the Court reversed the decision not to
remand the case to the agency.
The respondent argues that our decision contravenes Ventura in two respects:
(1) “that once an agency error is identified, a court of appeals should remand a case
for additional investigation or explanation;” and (2) “appellate courts should not
decide issues when an agency has not considered them.” (Request for Modification at
5.) The respondent does not take issue with the substance of our analysis, but asks
only that in remanding the case to the BIA, we do so without instruction to the
Attorney General to enter an order granting asylum.
With regard to the first issue raised by the respondent, we do not agree that
Ventura stands for the broad proposition that a court of appeals must remand a case
for additional investigation or explanation once an error is identified. As pointed out
above, the issue in Ventura was whether the Ninth Circuit impermissibly usurped the
BIA’s fact-finding role; here, however, the issue does not require finding new facts, but
rather is narrowly confined to whether the undisputed record evidence compels the
conclusion that Ghebremedhin would be subject to persecution on account of his
religion if returned to Eritrea. We are well-within our authority to reverse the IJ’s
eligibility determination if manifestly contrary to law, 8 U.S.C. § 1252(b)(4)(C);
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004); Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 353 (5th Cir. 2002), and our decision to do so in no way disregards the
agency’s expertise and role as front-line evaluator of evidence. As a practical matter,
the respondent concedes that Ghebremedhin is statutorily
Appeal nos. 03-1815 & 03-3836 Page 3
eligible for asylum (Request for Modification at 6-7), so nothing remains for the
agency to investigate or explain. Moreover, if the record evidence compels the result
that we have reached, then no alternative determination is possible.
Further, we do not take issue with the general principles of administrative law
advanced by the respondent. But the reach of the propositions cited—such as “the
function of the reviewing court ends when an error of law is laid bare,” (Request for
Modification at 5)—can sometimes be overstated. Ventura’s admonition against de
novo inquiry into a petitioner’s asylum application simply restates the rule that “[i]f
an order is valid only as a determination of policy or judgment which the agency
alone is authorized to make and which it has not made,” courts must remand for the
agency to make the decision in the first instance. SEC v. Chenery Corp., 318 U.S. 80,
88 (1943); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); FCC v. ITT
World Comm., Inc., 466 U.S. 463, 469 (1984). Similarly, Ventura’s reminder that
reviewing courts may not intrude upon an agency’s domain echos long-standing
principles that courts may not reach out and evaluate evidence and arguments
advanced for the first time on review, Chenery, 318 U.S. at 88, or exercise an
essentially administrative function reserved to the agency, Federal Power Comm’n v.
Idaho Power Co., 344 U.S. 17, 21 (1952).
This brings us to the respondent’s second argument. The Attorney General
does not contest that Ghebremedhin is statutorily eligible for asylum, but instead
argues that the panel essentially exercised a purely administrative function by
remanding with instructions to enter an order granting asylum. We agree that the
power to grant asylum is vested solely in the hands of the Attorney General, 8 U.S.C.
§ 1158(b)(1), and that even if an alien is otherwise eligible, the Attorney General is
empowered by statute to deny relief, id.; INS v. Cardoza-Fonseca, 480 U.S. 421, 428
n.5 (1987); Groza v. INS, 30 F.3d 814, 821 (7th Cir. 1994). Because this is a decision
for the Attorney General to make in the first instance, we GRANT the petition for
panel rehearing and modify our opinion to the extent that we remand the case to the
Attorney General for further proceedings consistent with that opinion.